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Kennedy is key to Supreme Court outcome on partisan maps

03 October 2017

Democrats and Republicans are poised for a U.S. Supreme Court fight about political line-drawing with the potential to alter the balance of power across a country starkly divided between the two parties.

Conservative Chief Justice John Roberts raised concerns about the high court being forced to take on a supervisory role in approving or rejecting future state electoral maps.

A lower court ruled in favor of the challengers, setting out a standard to judge when partisan politics goes too far in map drawing.

The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering.

The Supreme Court for decades has been willing to invalidate state electoral maps on the grounds of racial discrimination but never those drawn simply for partisan advantage. They argue the maps represent extreme partisan gerrymander and that they prevent fair and effective representation by diluting voters' influence and penalizing voters based on their political beliefs. In 2012, Republicans won a supermajority of 60 seats (out of 99) while losing the statewide vote.

"I don't want anybody, any party, to be in full control", said Emily Bunting, an organic farmer from western Wisconsin who joined the lawsuit.

I'm sure my Republican friends will find that an unfair characterization. While today's Democrats have undertaken some gerrymandering (most notably in Maryland), Republicans have been more shameless about it, particularly in states such as Pennsylvania, Michigan and Florida.

A handful of Republican elected officials, including U.S. Sen.

He gave a hard time to those defending Wisconsin's 2011 redistricting plan, which has been criticized as one of the most extreme versions of partisan gerrymandering in the country.

"We still have a shot on the current map, but if we have fair maps, we could see real progress", Post said.

If the court opens the door to partisan challenges, he said, "every one of these cases will come here".

Court Finds More Racial Gerrymandering in Texas Voting Maps
Court Finds More Racial Gerrymandering in Texas Voting Maps

In Wisconsin, as in many states, the state legislature draws new maps every 10 years, giving the party in control an opportunity to reshape voting districts.

Justice Samuel Alito seized on this point early in the argument, asking Wisconsin Solicitor General Misha Tseytlin if a Democratic voter in Milwaukee could sue a town in the northern part of the state that bans political signs supporting Democratic candidates.

"Republicans have worked for years to rig the system with partisan gerrymandering and restrictive voting laws created to keep African Americans, Latinos, and young people away on Election Day", said Tom Perez, the DNC chairman.

If Justice Anthony Kennedy, whose vote nearly 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.

The outcome in the Wisconsin case probably rests with Justice Anthony Kennedy. The trouble lies in identifying when a partisan gerrymander becomes so partisan it violates the Constitution.

Walter Shaub, former head of the Office of Government Ethics, echoed this sentiment, concluding,"Make no mistake about it: Extreme partisan gerrymandering is corruption". But even some of those who agree have said redistricting is a political question between representatives and their constituents, and the courts should stay out. Conservative justices expressed doubt about whether courts should intervene in such highly political disputes, and questioned the challengers' legal standing to bring the case.

For example, Ohioans tend to vote by narrow enough margins in many statewide elections to flip power, and the nation's presidency, back and forth between Republicans and Democrats.

In Wisconsin, a lower court sifted through evidence showing that Republicans packed Democrats into some districts and spread them out across others to maximize gains for the GOP. MI is among the states that could be forced to withdraw their own maps if Supreme Court justices agree that the "efficiency gap" identified by the lower court gives Wisconsin's Republicans an unconstitutional advantage to translate their votes into legislative representation.

Breyer, seeking clarity, enumerated those steps: determining whether the maps were drawn by one party; determining whether that resulted in asymmetrical representation, and determining whether that asymmetry was likely to persist for years.

"It's the most important case involving the structure of American politics in a generation", said Jeffrey Rosen, president of the National Constitution Center, at a recent event hosted by George Washington University Law School.

Kennedy is key to Supreme Court outcome on partisan maps