Kennedy key to U.S. Supreme Court out­come on elec­toral maps

Wisconsin Gazette - - Front Page -

In a case that could re­shape Amer­i­can pol­i­tics, the U.S. Supreme Court ap­peared split Oct. 3 on whether Wis­con­sin Repub­li­cans gave them­selves an un­fair ad­van­tage when they drew po­lit­i­cal maps to last a decade.

If Jus­tice An­thony Kennedy, whose vote al­most cer­tainly con­trols the out­come, is pre­pared to join his liberal col­leagues, the court could rule for the first time that dis­trict­ing plans that en­trench one party’s con­trol of a leg­is­la­ture or con­gres­sional del­e­ga­tion can vi­o­late the con­sti­tu­tional rights of the other party’s vot­ers. That could lead to changes in po­lit­i­cal maps across the coun­try.

While both par­ties seek max­i­mum par­ti­san ad­van­tage when they can, Repub­li­cans con­trolled more state gov­ern­ments af­ter the 2010 cen­sus and ag­gres­sively used re­dis­trict­ing to lock in elec­toral ad­van­tages to last for the next 10 years.

Kennedy sug­gested, as he did in an­other re­dis­trict­ing case 13 years ago, that courts per­haps could be in­volved in plac­ing lim­its on ex­tremely par­ti­san elec­toral maps.

Through­out the ses­sion, the jus­tices and lawyers ap­peared to cast ques­tions and re­marks with the hope of at­tract­ing Kennedy.

But he did not tip his hand about whether the Wis­con­sin map that fa­vors Repub­li­cans crossed a con­sti­tu­tional line.

Paul Smith, the same lawyer who failed to get Kennedy’s vote and thus a ma­jor­ity 13 years ago, said tech­nol­ogy and data anal­y­sis had so im­proved since then that there are good ways to mea­sure when one party gives it­self an un­fair edge in cre­at­ing dis­tricts.

With­out the court’s in­ter­ven­tion, Smith said on be­half of the Demo­cratic vot­ers, the next round of re­dis­trict­ing af­ter the 2020 cen­sus will see far more ex­treme par­ti­san maps.

“You are the only in­sti­tu­tion in the United States that can solve this prob­lem just as democ­racy is about to get worse,” Smith said.

“You paint a very dire pic­ture,” Jus­tice Sa­muel Al­ito replied dryly.

Chief Jus­tice John Roberts wor­ried about in­volv­ing the court in a glut of par­ti­san re­dis­trict­ing claims that would fol­low if the Wis­con­sin Democrats pre­vail.

“We’ll have to de­cide in every case whether the Democrats win or the Repub­li­cans win,” Roberts said.

The liberal jus­tices ap­peared to fa­vor the Demo­cratic vot­ers who chal­lenged the Wis­con­sin plan. Repub­li­cans who con­trolled the leg­is­la­ture and the gover­nor’s of­fice adopted elec­toral maps that have given them­selves a sig­nif­i­cant ad­van­tage in the state As­sem­bly in a state that is oth­er­wise roughly di­vided be­tween the par­ties.

Jus­tice Ruth Bader Gins­burg said a de­ci­sion up­hold­ing the Repub­li­can-drawn dis­tricts in Wis­con­sin would en­cour­age one party’s law­mak­ers to stack the deck against their op­po­nents when they con­trol the process and re­duce the num­ber of le­git­i­mately con­tested elec­tions.

“What be­comes of the pre­cious right to vote?” she asked.

The Supreme Court has never thrown out a po­lit­i­cal map be­cause it is too par­ti­san.

Jus­tice Neil Gor­such, the new­est mem­ber of the court, likened the court’s task in find­ing a way to mea­sure par­ti­san­ship with grilling steak.

“I like my turmeric and other spices, but I’m not go­ing to tell you how much. What’s this court sup­posed to do, a pinch of this, a pinch of that?” Gor­such asked.

A de­ci­sion in Gill v. Whit­ford, 16-1161, ex­pected by spring.


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