Delaying ruling on partisan gerrymanders? Pros and Cons

For more than three decades, some members of the Supreme Court have thought the courts should do something to rein in the centuries-old practice of partisan gerrymandering – that is, drawing election districts to give one party’s candidates a clear advantage.  But none of the Justices have thought they knew what to do about it.

The basic practice, on its face, is usually attacked as a violation of the principle of one-person, one-vote – that is, the idea that every single voter’s vote should count equally with every other voter’s.   A weighted vote for one party’s followers, it is said, devalues that of the other’s followers – even if everyone does get to vote for state legislators or members of the U.S. House of Representatives.

For nearly 14 years, Justice Anthony M. Kennedy has been leading the search for a workable constitutional formula for deciding when partisan gerrymandering had gone too far.  He has floated some general ideas, but has not yet settled on specifics. And, during the current term, all nine of the Justices are reviewing whether such a formula is now available.

So, is this the year such gerrymandering finally faces a constitutional limit?  Maybe not.

It has appeared to be a reality that, after studying one current case on the issue for a full six months, the nine Justices may be no nearer making up their minds.  That case involves a Republican-engineered state legislative gerrymander in Wisconsin.   The Justices did not seem any closer during a hearing on another current case, last week, in a case involving a Democratic-craft congressional gerrymander in Maryland.    And they have refused to speed up the schedule for acting on a third case, a Republican-drawn congressional map for North Carolina.

With such a concentration on a single constitutional issue, it would be entirely normal to think that the Justices are on the very threshold of deciding.  But last week, one of them – Justice Stephen G. Breyer – seemed to give away the secret that progress is either very slow, or does not exist at all yet.  He did so by suggesting that the Court wrap the three cases together, and then schedule them for a combined, comprehensive analysis – next term.

It is probably true that Breyer would not have done that if the Justices had actually gotten somewhere in the six months of deliberation on the first case that was heard on October 3.

It is not unprecedented to do that in a major constitutional case.  The Justices did not decide the school desegregation case of Brown v. Board of Education after the first hearing, so put it off until the next term.   The same thing happened with the abortion rights case, Roe v. Wade.

Although the Court always tries to be careful and deliberate in deciding big cases, some may be harder than others, so a second look can sometimes help.

Before getting into the pros and cons of a potential delay of the partisan gerrymandering controversy, it is clear that there are reasons not to decide either of the two cases that have been heard, whether or not any progress on a final decision has been made up to now.

The Wisconsin case has serious secondary questions about whether the voters who sued had a legal right to file their lawsuit in the form they chose, and about whether the trial court gave the defenders of the gerrymander a fair chance to contest the constitutional formula that the court there wound up using.

In the Maryland case, there is a serious question about whether there is a ruling from the trial court that is sufficiently final in form to permit Supreme Court review.  It reached the Justices without a fully developed legal record, and the gaps showed at last week’s hearing.

So, in either or both cases, the Justices could avoid the ultimate question of the validity of the two gerrymanders, deciding narrower issues and returning the case for more work in the trial courts.  That would, of course, mean a delay of the ultimate controversy until at least next term, when it is sure to return.

But, assuming that the Justices could find their way around those less-consequential questions, what good would it do to put off the biggest question?  Here are some of the “pro” reasons for doing so:

First, the Court could set up the kind of combined review that Breyer has suggested, with sufficient instructions that would guide the lawyers to explore the various theories for striking down partisan gerrymanders.   Side-by-side display of dueling theories might illuminate each of them.

Second, even if the two cases already argued were set for new hearings, without being combined, the Justices would have more time to think about that big question.

Third, the Justices would not be pressed to resolve the ultimate constitutional question at this stage in the current term, when they are moving close to the time when they start concentrating on writing their final round of decisions.   By happenstance, this term has a pile of truly major, and difficult issues, and the Justices probably could use more time pondering those.

Fourth, and maybe the most important, a postponement would sideline the Justices on a major political dispute at the height of this year’s congressional campaign.   Some of the Justices have already shown some sensitivity about announcing any profound new constitutional rules on election districting in the midst of primary elections.   They believe quite strongly in what election law experts call the “Purcell principle” – an idea, taking its name from a prior Supreme Court ruling, that warns the courts against changing election rules when the voters are already going or are about to go to the polls.

Fifth, keeping the partisan gerrymandering issue going into a new term could be something that might entice Justice Kennedy – perhaps the crucial figure on this controversy – not to decide to retire at the end of this current term.   Some court-watchers have already speculated that this may have been Justice Breyer’s real reason for talking up a reprise next term.

But, turning to the other side of the issue of postponement, what are the “cons” – the reasons against delay?

First, supporters of finding a solution to the partisan puzzle seem to think that now is the time, that the Court really has enough before it already to enable it to decide, and that any delay will drain the controversy of its urgency.  They think the Justices have become really interested, and they don’t want that sentiment to fade to any degree.  There have been signs, in both of this term’s hearings, that the problem had grown to be of genuine concern to perhaps a majority of the Court.

Second, the controversy has been a live one since at least 1986, when four members of the Court first declared that courts do have the authority to hear and decide the constitutionality of the practice – a practice that has been a part of American politics since the early 1800s.   It won’t go away, and is getting worse, opponents of partisan-driven maps argue.

Third, experts and theorists in recent years have come up with several variations of sociology, psychology and mathematics that do enable judges to find when a partisan gerrymander is actually very bad – data that can show that the favored party will keep on winning from its advantage in election after election, even if the political winds and sentiments change among the voters.   In other words, the only need is for the Justices to wrap their minds around these theories, and they can do that right now, if they are diligent.

Fourth, even if it now seems to be quite late in this year’s election cycle, there could still be time to draw up new election maps that are not gerrymandered in a partisan way, for use in this year’s later primary elections and in the general election in November.  (As evidence, the supporters of a solution can show that the Pennsylvania Supreme Court came up with an entirely new congressional redistricting map, without the partisan skew, in a matter of mere days.)

Fifth, with Justice Kennedy’s presence on the bench assured for at least the rest of the current term, but with repeated rumors that he may be on the verge of retiring this summer, it could be a profound addition to his judicial legacy if he were to finally deliver on his repeated hints that he may well have the answer to this puzzle.   His retirement this summer, without a ruling on partisan gerrymandering, would put that issue before a new Court that may well be entirely different in its philosophical majority.

Right now, the Justices are in recess for a couple of weeks.  The next time to look for something from them on the issue would be after their next private conference, on April 13.   Unless, of course, they were to spring a major surprise.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.