Gill v. Whitford involves the most blatant, egregious instance of political gerrymandering that our country has seen in a very long time. This is ironic, because while the facts at issue may compel five justices to take action, they will probably be irrelevant to the Court’s ultimate holding.
Last term, I wrote about the Supreme Court granting certiorari in Gill v. Whitford, a momentous political gerrymandering case involving redistricting of the Wisconsin state house districts. Over the summer, merits briefs were filed and the Court heard argument on Tuesday morning. The respondents – citizens of Wisconsin – have demonstrated unimpeachable evidence that the GOP-controlled Wisconsin State Assembly intentionally drew maps with the express intent to disproportionately maximize the number of GOP districts, in the most aggressive, brazen ways possible (resulting in winning 60% of the assembly seats with only 47% of the vote). Their facts are based on concrete scientific and mathematical findings, as well as unprecedented evidence of intent to redraw lines for purely political ends. This much is really beyond dispute, which is probably why the case is before the Supreme Court in the first place.
The Court has two much bigger legal questions before it, neither of which actually require discussion of any facts: 1) are political gerrymandering claims justiciable at all, and 2) if so, what is an appropriate, manageable standard with which to analyze those claims? In a way, the case is so appealing because the facts approach the logical conclusion of this issue – if there ever is to be a finding of an unconstitutional political gerrymander, this is it.
But that is essentially where the facts end and the legal issues begin. In a prior case, Vieth v. Jubilerer, four justices found that political gerrymandering cases were non-justiciable and four justices said that they were justiciable and that a workable standard existed. Then there was Justice Kennedy, who found that no manageable standard had been presented, but left open the possibility that one might exist in the future. A prior case held that such claims were justiciable, but the court in that instance fractured on the specifics of the standard.
Predictably, finding a manageable standard was on everyone’s minds at oral argument. The Wisconsin Solicitor General began her argument by stating, “This Court has never uncovered judicial and manageable standards for determining when politicians have acted too politically in drawing district lines.” Counsel for the Wisconsin State Senate also began her argument by proclaiming, “Plaintiffs have not identified a workable standard…” They might as well have stared directly at Justice Kennedy.
Justice Breyer, for his part, cut even further to the heart of the issue, explaining why all the mathematical mapping models on earth could not help the plaintiffs unless they identified a workable standard: “Because I think the hard issue in this case is are there standards manageable by a Court, not by some group of social science political ex — you know, computer experts.” Put differently, again by Justice Breyer, “When I read all that social science stuff and the computer stuff, I said, well, what — is there a way of reducing it to something that’s manageable?”
That is why, at oral argument, the actual facts of the case were barely discussed. True, the justices did thoroughly address S-curves, Efficiency Gaps (EG) and other mathematical modeling, but mostly in the context of determining the judicial manageability of using those tools. Chief Justice Roberts aggressively attacked the Plaintiffs’ reliance on mathematical modeling, calling it “sociological gobbledygook” and forcefully asserting that, “It is just not  a palatable answer to say the ruling was based on the fact that EG was greater than 7 percent. That doesn’t sound like language in the Constitution.” Plaintiff’s counsel struggled to parry attacks as to this issue, particularly when he attempted to use statistical modeling in establishing a manageable legal standard. There appear to be four justices who reject the use of mathematical modeling in evaluating a political gerrymandering claim.
Ultimately, however, Justice Kennedy seemed quite skeptical of Wisconsin’s argument that no act of political gerrymandering could ever be unconstitutional, no matter how brazen. He repeatedly questioned counsel for the Wisconsin State Senate on whether a state could amend its constitution to mandate that district maps would be drawn to maximize votes for a particular party. He seemed thoroughly dissatisfied with counsel’s answer, which suggests that he believes that political gerrymandering could run afoul of the constitution, albeit possibly in only the most blatant cases.
But no matter how this case comes out, the actual facts involved likely will not play a major role, beyond simply convincing Justice Kennedy to come off the sidelines and adopt a workable standard. For example, if political gerrymandering is held to be non-justiciable, then the facts would never have mattered. On the other hand, if Justice Kennedy can agree to a manageable standard, then the case will most likely be remanded back to the lower court to re-apply the facts to this new standard, albeit with the understanding that these facts probably clear whatever hurdle the high court implements. If the court adopts the standard implemented by the District Court, then the District Court’s decision will be affirmed.
So, again, as compelling as the facts may be, they do not really matter once they have cajoled Justice Kennedy onto the field.