Rigged elections: Justice Kennedy holds the key QUOTING THE MAN HIMSELF
He’s wavered on role in gerrymandering
The building blocks of the American political system go on trial at the Supreme Court on Tuesday, and it’s not speculative to suggest Justice Anthony Kennedy represents the deciding vote. He claimed that role 13 years ago.
The issue is whether state legislators can choose their voters, rather than the other way around, every 10 years by drawing election districts with partisan impunity. In 2004, four justices said yes, four no; Kennedy said maybe.
The result was another decade of partisan gerrymandering. Republicans capitalized in 2010 by gaining control of both houses in 25 states, which they used to draw districts that have favored their side ever since.
Now comes a new case from Wisconsin, one of the most purple states in the 2016 presidential election. President Trump narrowly won the state, but thanks to maps drawn by Republicans in 2011, the GOP emerged with a 64- 35 advantage in the state Assembly and a 2013 edge in the state Senate.
That partisan display, Justice Antonin Scalia wrote for the winning side in the 2004 case from Pennsylvania, isn’t something the federal courts should fix. Kennedy agreed in that specific case but issued a warning for the future.
“If courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow,” he wrote.
The Wisconsin case also comes with suggestions for ways to measure the burden on voters — in this case Democrats — who were scattered among some state legislative districts and packed into others to minimize their clout.
“That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” he said. “If workable standards do emerge to measure these burdens ... courts should be prepared to order relief.” When lawyers for the voters challenging Wisconsin’s maps filed their main Supreme Court brief last month, they quoted Kennedy 41 times, beginning with their opening paragraph: Partisan maps “penalize citizens” because of their “association with a political party, or their expression of political views,” he said in 2004.
Cornell Law School professor Michael Dorf, a former Kennedy law clerk, said the justice isn’t shy about courts weighing in on political matters.
“He is pulled to the idea that challenges to the machinery of democracy ... should be justiciable,” Dorf said. And Kennedy most likely sees partisan gerrymandering as “a kind of cheating. It think it offends his sense of fair play.”
On the other hand, the 81- year- old justice lamented in 2013 that the courts should not have to decide major issues best left to the political branches.
“A democracy should not be dependent for its major decisions on what nine unelected people from a narrow legal background have to say,” he said.