The U.S. Supreme Court heard oral arguments today in the partisan gerrymandering case Gill v. Whitford. Several of the justices appeared to be amenable to some kind of test to determine whether a map is too partisan in its bias, but there was no consensus on what such a test might look like (although Justice Breyer offered a possibility). Arguments touched briefly on standing but mostly revolved around how the Court could test whether the Wisconsin Assembly acted unconstitutionally when it intentionally drew districts that would maximize Republican seats.

A key exchange involved adjustments made to the Wisconsin maps during the redistricting process that resulted in ever greater Republican advantages.

“If it’s the most extreme map they could make, why isn’t that enough to prove partisan asymmetry and unconstitutional gerrymandering?” asked Justice Sotomayor after describing several iterations of the Wisconsin legislative maps that were rejected because they “weren’t partisan enough.” Misha Tseytlin, the state’s Solicitor General, replied that the facts of this case are “less troubling” than those in other cases the Court has decided. Sotomayor immediately replied, “But they kept going back to fix the map to make it more gerrymandered. That’s undisputed. People involved in the process had traditional maps that complied with traditional criteria, and then they went back and threw out those maps and created more” partisan ones. Why not use one of the less partisan maps? “Because there was no constitutional requirement that they do so,” Tseytlin replied. “They complied with all state law.”

Justice Breyer said getting a manageable standard by which courts could judge future maps was the “hard issue in this case.” Breyer went on to propose one possible standard. Step one would look at whether one party had control of the redistricting process. Step two would determine if there was partisan asymmetry. “Good evidence of that is a party that got 48% of the vote got a majority of the legislature.” Step three is to determine if the map would likely produce “persistent asymmetry over a range of votes.” Finally, is there any other motive or justification that could produce “an extreme outlier” other than pure partisan motivation. “This is where I am at the moment,” he said.

Justice Gorsuch asked legislative counsel Erin Murphy about the criteria “a state [would] need to know in order to avoid having every district and every case and every election subject to litigation.” Murphy argued that current measures of partisan asymmetry “identify false positives roughly 50% of the time,” making it impossible for a legislature to comply with a test that “can’t differentiate between a court-drawn map and a map drawn for partisan advantage.” Murphy said she was not sure any reliable standard could be established.

Chief Justice Roberts said the “main problem” for him was the “mandatory jurisdiction” of future partisan gerrymandering claims. Because each claim must ultimately be decided by SCOTUS, he worried about how the Court would be viewed if it consistently decided those cases in favor of one party other another. Plaintiffs’ counsel Paul Smith said these cases are already finding their ways to SCOTUS under different guises. The “real problem” is that there is not a way today to challenge a map on the basis that “it’s antidemocratic, it decides in advance that one party is going to control the state government for 10 years.” Smith went on to say that it will become “a more serious problem as gerrymandering becomes more sophisticated with computers and data analytics [and] an electorate that’s very polarized and more predictable than it’s ever been before.” Roberts replied, “You’re taking these issues away from democracy and you’re throwing them into the courts pursuant to – and it may be simply my educational background – but I can only describe [it] at sociological gobbledygook.”

Roberts asked if plaintiffs were merely seeking proportional representation, “which has never been accepted as a political principle in the history of this country.” Smith said the plaintiffs were “arguing for partisan symmetry, a map which within rough bounds at least treats the two parties relatively equal in terms of their ability to translate votes into seats.” Roberts shot back, “That sounds exactly like proportional representation to me.” Smith said his side was seeking symmetry, not proportionality. If each party, given the same overall percent of the vote, achieves the same number of seats, then there’s symmetry. Such a map “does not distort the outcome and put a thumb on the scale.”

Justice Alito brought the conversation back to the specific measures used by the plaintiffs. Essentially, he asked is the “efficiency gap” the “holy grail” they’ve been looking for. Smith said social scientists have developed three different ways to calculate a map’s asymmetry, “and in this case, they all come to the exact same conclusion that this is one of the most extreme gerrymanders ever drawn in living memory of the United States.”

“Where do you draw the line?” Kagan asked, seeking to prevent every map every drawn from being challenged for any efficiency gap found anywhere. “It seems to me that this map goes over pretty much every line you can name.” Smith said each of three measures allows one to compare a particular map to all others, making it possible to draw a line. Smith added that sensitivity testing should be done to evaluate “the likelihood of durability of that asymmetry” over a decade. “This map is never going to flip over,” Smith said, because there are not enough swing districts. Kagan asked if the Court should be looking for outliers. “The word ‘outlier’ is probably an appropriate one,” Smith replied. “All partisanship is not unconstitutional. What you need is a method by which the extreme gerrymander, the one that is fundamentally antidemocratic and is going to last for the full decade, can be identified and held unconstitutional. That’s the only thing we’re asking you to do here.”

The case could have significant implications for Texas, both its current districts and any future maps drawn following the decennial census in 2021.

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