Earlier this year, the United States Supreme Court heard oral argument (transcript here) in Gill vs. Whitford, a case in which a three-judge panel found that the legislative district lines drawn by Wisconsin after the 2010 Census was an unconstitutional partisan gerrymander in violation of the Equal Protection Clause.  Last week, the United States Supreme Court held oral argument (transcript here) in Benisek vs. Lamone, a case in which a three-judge panel rejected a request for a preliminary injunction involving a claim that Maryland’s Sixth District was an unconstitutional partisan gerrymander in violation of the Free Speech Clause (and other parts of the First Amendment).

It is unusual for the United States Supreme Court to set a second case on the same issue for hearing while the first case is under submission (i.e. already argued).  What is more typical is granting multiple cases at the same time and having all argued at the same time.  As such,  for those who try to look for tea leaves in oral argument, one area of speculation was whether the questions from the justices might indicate where they were on the issues raised in Gill.  In theory, at least, there are some drafts being circulated on Gill.  At the very least, there was a tentative vote immediately after Gill. 

Two initial points before going into the merits.  First, redistricting and the rules for it are important.  We spent a lot of time in 2011 discussing what might happen when the new maps are drawn.  After three congressional elections (and state legislative elections) and two presidential elections, we have a pretty good understanding of the results of the 2011 line-drawing.  The bottom line (according to the Cook Partisan Vote Index) is that, in an election in which both parties get 50% of the two-party vote, the Republicans will emerge with something around a 240-195 advantage in Congress, exactly where we ended up after 2016.  To win a majority, the Democrats need to get around 53% or 54% of the total vote.   In many states, you have similar results on the state level.

Second, the two cases have several differences in how they present the issues to the Supreme Court.  Gill involves a state-wide challenge to legislative districts based on the Equal Protection Clause after a final decision.  Benisek (at least as currently presented) involves a challenge to a single congressional district based on a First Amendment “retaliation” theory after the denial of a preliminary injunction (and there are additional requirements separate from the ultimate merits before a party can receive a preliminary injunction).   Potentially, these differences were the reason for the argument in Benisek — to have an opportunity to decide exactly the theory and standards under which courts can review partisan gerrymander claims.

In practical terms, the Wisconsin case is similar to many voting rights cases.  In voting rights cases, there are two ways that districting can get into trouble.  First, it can take account of race too much — raising an equal protection intentional discrimination claim.  This type of claim tends to focus on individual districts.  Second, it can fail to give minority voters enough “minority majority” districts or not enough “minority influence” districts leading to the dilution of minority votes. This type of claim tends to focus on the map as a whole.   The theory in the Wisconsin case looks like a mix of these two approaches — relying on evidence of an intent to slant the whole map in favor of the Republicans and proof (in terms of mathematical measures of wasted votes) that the map is designed to leave Democrats under-represented and to prevent the Democrats from gaining the majority even if the Democrats win a majority of the popular vote (as shown by the 2012 election results).  You had something similar in the district lines just thrown out in Pennsylvania.

The Maryland case focuses on the targeting of certain voters.   After the 2010 census, Maryland’s Sixth District needed to be increased by 10,000 residents to meet the requirements of one man, one vote.  Instead, the new lines moved about half of the former residents out and replaced them with a new group of voters — changing a likely Republican district into a likely Democratic district (currently a D+6 partisan vote index).    The theory is that these voters were punished for their past history of voting for the minority party by being moved from a district in which they had influence in choosing their Congressman into districts in which their votes do not matter.

So what did we learn from the argument?  Unfortunately, the signals were very mixed.  The more conservative judges were a little more respectful of the Maryland challengers than they were of the Wisconsin challengers.   The problem is figuring out the reason for this.  Was this merely partisanship (treating the Republican challengers in Maryland better than the Democratic challengers in Wisconsin) or did this indicate that the vote after Gill was to recognize some type of partisan redistricting claim with the debate being about the type of standard.  If the debate was about the standard, obviously, the conservatives would prefer a simpler standard that is difficult to meet.  A Maryland-based test would probably only reach the most blatant reworking of a single district and allow the more subtle manipulation of the entire map that is currently common as shown by the Wisconsin case.

On the other hand, that question of the appropriate standard seems to be very much in the air.  In fact, given that it is almost certainly too late (or will be by June) to redraw lines for 2018, Justice Breyer suggested granting review on a third case out of North Carolina (lower court decision here) that presents a third approach to the appropriate standard and scheduling all three cases for argument this fall so that the Supreme Court could have all three proposals in front of it with appropriate supplemental briefing on the merits of each of the potential standards.

So what to expect from these two cases.  It is likely that the Supreme Court will want to issue both cases at the same time and may even assign both cases to the same justice.  Amazingly, we still have four cases outstanding from October (the Supreme Court has been very slow with opinions this year).  As discussed in the past, the Supreme Court tends to try to balance the workload of the justices,  Thus, it is likely that Gill was originally assigned to one of four justices — Chief Justice Roberts, Justice Kennedy, Justice Alito, and Justice Kagan.  Cases are assigned by the senior justice in the majority, but it is unclear what qualifies as a majority here.  It is unlikely that five justices will agree that the panel in Gill applied the right test; so there is probably a majority to reverse the decision below in which case Chief Justice Roberts would arguably be the senior justice in the majority and may have kept the case.  On the other hand, it is unclear if Chief Justice Roberts agrees that the challengers in Gill presents a viable claim, but it is pretty clear that Justice Kennedy believes that a partisan redistricting claim is viable which would make Justice Kennedy the senior justice in the majority on that issue, making it likely that Justice Kennedy would have the case.  Regardless of which justice got the original assignment, the argument in Benisek raises the likelihood that we will have some type of split decision in both cases in which no opinion gets the support of five justices with three or four finding that there is no claim, and the rest splitting on the proper legal standard to apply to such a claim.   There is always the slim chance that Justice Breyer will get what he proposed, reargument in the fall with three cases on the docket at the same time.

Particularly, as we are unlikely to get new maps for 2018 in any of the three states, and the most likely result is to send these cases back to the panels for reconsideration in light of whatever standard gets the support of five justices (or whatever standard is deemed to be the narrowest rule if no standard gets the support of five justices), the results in these cases matter most for 2021.  Even if there is no final decision on the current maps before the 2020 elections, the standard in these cases will give guidance to whomever has to draw the new maps in every state in 2021.

While activists hope for a favorable decision from the Supreme Court, they are not waiting.   In, at least, four states, activists are pushing potential referendums to change the redistricting process.  In the last round of redistricting, all four states drew lines that were slanted in favor of Republicans,  costing the Democrats 5-10 House seats.  In Michigan, supporters have submitted signatures to the Secretary of State for a proposal that would give redistricting authority to a group of randomly selected commissioners.  In Missouri (which already uses balanced bi-partisan commissions for state legislative maps), the proposal being circulated creates a non-partisan official to draw the initial maps with the commissions (and the state legislature for congressional maps) having the power to change those maps by a supermajority.  In Ohio, the proposal being circulated would give the commission that currently draws state legislative maps the responsibility for drawing the congressional map as well.  Finally, in Utah, at least some signatures have been submitted in support of a proposal to create a redistricting commission with authority to draw congressional and state legislative maps but with the legislature having final approval over the plans.  All four proposals establish criteria governing the final maps intended to create a mechanism for challenging the more extreme forms of gerrymandering.

Besides these propositions, of course, the best defense to another round of pro-Republican gerrymandering is to win state legislative seats and the governorships in the states.  In both Ohio and Utah, the proposed commissions divide the appointment of commissioners between three executive branch officials and four legislative officials (meaning that one party could have a 5-2 advantage).   Even with the propositions, the majority of the states will still give virtually unfettered authority to the state legislatures.  With governors and state senators having four-year terms in almost all states, the winners in this fall’s election will still be around in 2021 to draw the new maps.

While “fairness” in elections is not something the directly effects people (and thus is hard to get non-activists interested in), it is a necessary pre-condition to the policy goals that do matter.  The folks at 538 did some random maps based on certain criteria — ranging from nation-wide partisan gerrymanders (unlikely as no party is going to control every state) to various neutral criteria (partisan balance, compact, competitive, maximizing minority representation) — and the only map worse than the current map would have been a nation-wide pro-Republican gerrymander.  In particular, the current map (on average) is about nine to ten seats more favorable to the Republicans than a map designed to maximize the number of competitive districts.  Equally as important, the current map has fewer competitive districts than any of the non-partisan gerrymander maps, meaning that general election voters have few opportunities to change their representative.   While geography does and will pose a potential problem for Democrats, the current maps in several states are costing us multiple seats compared to a non-partisan map (e.g., North Carolina — 2 seats; Texas — 2 to 3 seats) and in the vast majority of states have at least one or two seats that were drawn as likely Republican which with minor adjustments could have been swing seats.  At the end of the day, it is much harder to get protections for workers, the environment, women, LGBTs, minorities if we need to get 56% of the vote to get a narrow majority and a working majority is almost impossible.