This is the third in a series about Gill v. Whitford, the partisan gerrymandering case the Supreme Court is hearing this week. The first is here. The second is here.
Here are a few quick running thoughts from today's oral argument in Gill v. Whitford. This post will be updated. The transcript PDF is here.
Standing? A question mostly ignored in the run-up to argument was the question of standing, because plaintiffs challenged the entire map, not specific districts. But it lurked in the background: Professor Ned Foley has mentioned it, and it's been looming ever since the Court accepted the case leaving open the question of jurisdiction. Right off the top, Justice Kennedy concedes, "You have a strong argument" on the standing issue. That remains a major question as the case moves forward. I wonder, however, if Justice Kennedy feels more comfortable with a more, shall we say, "creative" standing analysis if the claim arose under the First Amendment, a place known for exceptions to standing (e.g., the overbreadth doctrine). When the appellees rose to argue, Chief Justice Roberts came out of the gate calling it "arresting" to have racial gerrymandering claim that must be district-specific but partisan gerrymandering statewide.
Justice Kagan pushed back that in one-person-one-vote cases, the person in an overpopulated district can challenge the entire map.
First Amendment v. Equal Protection: Justice Kennedy has long suggested he prefers the case to turn on the First Amendment rather than the Equal Protection Clause. He returned to this theme repeatedly in this argument, too. A three-judge panel in Maryland seized on the First Amendment claim earlier. Whether it's a better doctrinal foothold is one thing; whether it gives rise to a more workable standard is another. Only time will tell.
Justice Breyer's Multi-Step Test: He quick offered a multi-step test. First, was there one-party control? If not (e.g., a bipartisan commission), end of case. (As a note, this would tend to insulate a good number of partisan gerrymandering challenges.) Second, is there partisan asymmetry? (And here the "efficiency gap" makes an appearance.) Third, is it "persistent" over a "range of voters." Next (he didn't number it), he looked to whether it's an "extreme outlier." Finally, then ask if there's "any other motive" or justification. Justice Breyer wasn't "positive" it's manageable but offered it quite early.
Justice Kagan and Evidence: Justice Kagan pinned Wisconsin on points about the evidence. She emphasized that if legislators are capable of considering the evidence, why not courts? She noted that there's "good evidence" of partisan intent, and intent that led to an effect, "which was to entrench a party in power." She tended to emphasize the problems in this record and the capability of the courts to handle it. What that looks like in a standard is a different matter.
Justice Kagan also believed that Wisconsin went "over pretty much every line you can name," but wondered about line-drawing for future cases to prevent "a world in which in every district somebody can come in and say: A-ha, there's been a violation of partisan symmetry; we're entitled to a redrawn map." The word "outlier" arose as a possible standard.
Justice Gorsuch and Guidance: Justice Gorsuch wondered how the Court's standard might guide the legislatures in the future: what would it need to know "to avoid having every district and every case and every election subject to litigation"? He wondered, "how durable" the efficiency gap might look like in the event a standard like Justice Breyer's was adopted. He later worried that "it would yield about a third of all the districts in the country winding up in court."
Predictability of voters: A common theme was not just durability, but the extent to which voters' preferences are predictable--and the relevance that should have. Justice Kagan and Sotomayor noted that the legislature wanted to maximize Republican seats, and it predicted how voters behaved, and they did a great job in doing so--the predictions were quite accurate, so why complain that voters preferences might vary from case to case? Chief Justice Roberts, in contrast, was concerned that it was "stereotypical" to assume that voters are going to vote simply based on partisan affiliation, and that people "vote for a wide variety of reasons."
The judicial function: Chief Justice Roberts emphasized the concern that if courts throw out a map because one party wins too often, "the intelligent man on the street is going to say that's a bunch of baloney. It must be because the Supreme Court preferred the Democrats over the Republicans. And that's going to come out one case after another as these cases are brought in every state." He worried, "It is just not, it seems a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn't sound like language in the Constitution." He continued that it would sound like "sociological gobbledygook."
Justice Gorsuch later wondered where the judicial power resides; Congress has the power, why judges? (Justice Ginsburg rejoined that one-person-one-vote came from the same place.)
Proportional representation? Proportionality only made a brief appearance when Chief Justice Roberts suggested that partisan asymmetry sounded "exactly like proportional representation to me," something "which has never been accepted as a political principle in the history of this country."
Guarantee Clause: It made a brief appears when Justice Gorsuch, no stranger to the Clause!, raised the issue that the heart of the claim was really a more specific claim in the Guarantee Clause rather than an Equal Protection Claim.
Prediction: No prediction from me! Nothing terribly remarkable from oral argument, but Justice Breyer's suggested path might be a starting point in the event the Court does decide to articulate a test. The question of a limiting principle, as Justice Kagan suggested, would be firm in their minds. I do expect, however, an important standing analysis to follow....