The Third Rail of Modern Supreme Court Jurisprudence: Pennsylvania Republicans File Hail Mary Emergency SCOTUS Petition In Gerrymandering Case

Among the “third rail” cases in recent Supreme Court history, one stands out the most: Bush v. Gore. Subsequently cited only once by the Supreme Court (in a footnote), it was written so as to not be relied upon, containing the notorious line, “our consideration is limited to the present circumstances.” In other words, “this case will self-destruct on January 20, 2001”. So imagine everyone’s surprise when Bush v. Gore was cited in a newsworthy emergency petition before the U.S. Supreme Court on Thursday.

The petition at issue deals with the Pennsylvania Supreme Court’s decision on Monday to strike down the state’s congressional map, on state constitutional grounds. Beyond just overturning the map, the court also implemented a tight schedule for the state legislature to redraw the districts, giving them three weeks to do so. If no map is submitted by the deadline, or if the governor rejects it, then the Pennsylvania Supreme Court will “adopt a plan based on the evidentiary record developed in the [lower] Court.”

Pennsylvania Republican legislators have now filed with the U.S. Supreme Court an emergency petition to stay, contending that the order of the Pennsylvania Supreme Court improperly exercised the power of the Pennsylvania legislature to draw district lines.

This is where true conservatives would oppose the federal judiciary stepping in to usurp  powers reserved to the states. Indeed, the decision is based entirely on an interpretation of the state constitution, which is in and of itself not reviewable by the Supreme Court. But the PA GOP makes the argument that the PA Supreme Court violated the Elections Clause of U.S. Constitution, which states, “[t]he Times, Places and Manner” of congressional elections “shall be prescribed in each State by the Legislature thereof” unless “Congress” should “make or alter such Regulations.” U.S. CONST. art. I, § 4, cl. 1. 

Enter Bush v. Gore.

In arguing its case, the PA GOP cites Bush v. Gore, as well as its procedural predecessor, Bush v. Palm Beach Canvassing Board (“Bush I”) in support of its argument. Bush v. Palm Beach is particularly relied upon, as it’s the first, last, and most frequently cited case in the brief. Basically, the petitioners argue that because the Elections Clause vests power to draw district lines with state legislatures, not courts, the U.S. Constitution is violated when state courts act legislatively in the area of federal congressional district line drawing.

However, in citing Bush v. Gore (as opposed to Bush I), the petitioners go even further. Quoting the concurring opinion by Chief Justice Rehnquist, the petitioners argue that the Court is required to review “what Pennsylvania’s lawmakers have written.” In other words, the Supreme Court must not only review whether the PA Supreme Court acted legislatively in mandating the drawing of new maps, but it must also independently review the propriety of the old maps which were drawn by the Pennsylvania legislature.

This, quite frankly, is where the brief goes really haywire. First, Rehnquist’s concurring opinion was joined only by Scalia and Thomas, only one of whom is alive (Kennedy resolved the case on Equal Protection grounds). Second, and more importantly, the concurring opinion went out of its way to note the exceptional circumstances at play, where the fate of the presidency lay in the balance. Third, petitioners seem to argue that the Supreme Court must actually review the adequacy of the original maps, which certainly involves an interpretation of the state constitution.

Given these facts, why would petitioners cite Bush v. Gore at all? What’s the point? Given that Kennedy didn’t join that concurring opinion, they know going in that they cannot get to five on that particular point. Further, by its very nature, the concurring opinion dealt exclusively with the fact that the election at hand was for the presidency. So they just cited the most embarrassing case in modern Supreme Court history, for no discernible gain.

To be clear, I’m not saying that all of the Justices would think poorly of this. After all, Justice Thomas voted for it, and you can probably tack on Alito and Gorsuch. Also, Chief Justice Roberts was on Bush’s election legal team for Bush v. Gore, so you never know. But he is the Justice most concerned with institutional legitimacy, and relying on Bush v. Gore is probably the last thing he wants to do. Plus, you immediately anger all four of the liberal Justices.

Finally, there’s the fact that Pennsylvania’s argument reads exactly like something conservative justices would normally hate: an attempt to have the federal judiciary overturn a state’s interpretation of its own constitution. And most of the brief reads like a thinly veiled attempt to do so.

In one way, however, Pennsylvania’s argument is quintessentially jurisprudentially conservative, in that they argue that courts shouldn’t be able to mandate the conduct of the legislature: “The Pennsylvania Supreme Court has now legislated criteria the Pennsylvania General Assembly must satisfy when drawing a congressional districting plan…”

The natural response to this is that courts do this all the time: they determine whether legislative action is constitutional and then set forth criteria that legislatures must meet to satisfy the constitution.

That is the major flaw in the argument. In order for this to even be a federal issue in the first place, the U.S. Supreme Court must accept the premise that the Pennsylvania Supreme Court (or any court) is not allowed to ask whether legislative action is constitutional, set out criteria for making this determination, and then issue an order to ensure that constitutional strictures will be complied with.

That is why the petitioners will ultimately lose. Justice Alito – the Circuit Justice for the Third Circuit – is surely going to refer the petition to the entire court, and there might even be a stay pending further briefing. But there is a minimal chance that they will convince Chief Justice Roberts and Justice Kennedy and the three remaining conservatives to encroach on state sovereignty in such a fashion, particularly when the main authority on which their argument is based is Bush v. Gore of all cases.

“Some Group of Computer Experts” and Their “Sociological Gobbledygook”: Oral Argument In Gill v. Whitford

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.

SCOTUS Takes Up Political Gerrymandering, Round 3

In many politically important cases before the Supreme Court, prognosticators often (correctly) surmise that Justice Kennedy will be the swing vote. However, on Monday the court took up a redistricting case, Gill v. Whitford, where we not only think Justice Kennedy will be the swing vote, he already has been the swing vote on the very same issue before the court and will surely be so again here.

The issue of political gerrymandering has made its way up to the high court on numerous occasions previously. However, the standard for political gerrymandering claims has actually yet to be definitively decided, despite the court’s best efforts on at least two prior occasions.

In Davis v. Bandemer, 478 U. S. 109 (1986), the Supreme Court dealt with the question of whether partisan redistricting could ever give rise to a justiciable equal protection claim. The court, 6-3, held that such claims were indeed justiciable, but could not agree on the appropriate legal standard. So, essentially, we agree that there is a standard, but we can’t agree on what it is yet.

The four-Justice plurality concluded that plaintiffs could win only upon a showing of “both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” So, intent and effect. The concurring opinion, on behalf of two Justices, agreed with the plurality that a plaintiff should show intent and effect, but believed that the intent of the legislature must have been solely for partisan ends.

Eighteen years later, the court tried again in Vieth v. Jubelirer, 541 U.S. 267 (2004). However, the court fractured there as well and actually took a step backwards. By a vote of 5-4, five justices rejected the plaintiffs’ political gerrymandering claim and also agreed that no discernible, manageable standard existed at all. These five justices rejected every possible standard presented to them, including the standards previously proposed by the plurality and concurring opinions in Davis.

That is where things go haywire. Of those five justices, a four-justice plurality found that no discernible standard could be established and that partisan gerrymandering claims were simply not justiciable. However, Justice Kennedy – the fifth vote against the plaintiffs – found that while no adequate standard had yet been devised, future courts should not be foreclosed from identifying one. The four liberal justices found that an adequate standard already existed.

Essentially, the four conservative justices found that no adequate standard existed or could ever exist, and the four liberal justices thought that there already existed an adequate standard. Then there was Justice Kennedy, all by himself, finding that no adequate standard currently existed, that it might exist in the future, that he didn’t know what it was, and that he was not preventing courts from developing such a standard.

In discussing what type of standard would be appropriate, Justice Kennedy implored courts to exercise “great caution” so as to avoid an “unprecedented intervention in the American political process.” Thus, Kennedy wrote,

“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”

Kennedy could not identify such a standard at the time. However, “[t]hat no such standard has emerged in this case should not be taken to prove that none will emerge in the future.”

So, that is where we are now: asking whether Justice Kennedy can be convinced that an appropriate, manageable standard has now been identified. Enter Gill v. Whitford.

The case deals with the Wisconsin State Assembly redistricting plan. Wisconsin is a closely divided swing state. Obama won Wisconsin in 2008 and 2012, and Trump won in 2016; the state has one democratic and one republican senator, and statewide vote totals typically hover around 50/50. However, due to a redistricting plan, “Act 43”, in 2012, 2014 and 2016, Republicans won over 60% of the seats even though the statewide vote remained nearly tied.  The District Court found that Act 43 “was intended to burden the representational rights of Democratic voters.” The three-judge District Court panel then struck down Act 43.

After Act 43 was struck down by the District Court, Wisconsin petitioned for cert to the Supreme Court and also asked for a stay of the District Court’s ruling. The court granted cert on Monday and also granted the stay petition by a 5-4 margin, with Kennedy in the majority along with the other conservatives. Given the court’s breakdown on the stay motion, it seems reasonably clear that the four liberals will be voting to uphold the ruling of the District Court on its merits.  Thus, Kennedy is again in the middle of a deeply divided court.

That gets us to the legal standard adopted by the District Court and now being reviewed by the Supreme Court. The District Court required a plaintiff to demonstrate: 1) discriminatory intent, 2) a large and durable discriminatory effect, and 3) a lack of a legitimate justification. This hinges on intent and effect like the rejected standards of yesteryear, but it also requires a third prong  seemingly tailored to Kennedy’s Vieth concurrence: a lack of a legitimate justification.

This may pass muster because it closely tracks Kennedy’s own words in Vieth and is, as a practical matter, an extraordinarily tough standard for plaintiffs to meet. Under this standard, a legislature’s redistricting plan would be upheld if the state could simply demonstrate a legitimate, non-invidious reason for it. This is similar to but more difficult than even the familiar “rational basis review”, which upholds governmental action against non-suspect classes when it is rationally related to a legitimate governmental purpose. Under both standards, providing the court with a legitimate reason for the conduct is sufficient to withstand judicial scrutiny. In fact, under the proposed rule here, the plaintiffs would then also be required to demonstrate discriminatory intent and effect. 

Based on his history on this issue, Justice Kennedy is not going to endorse an easy standard for plaintiffs in these cases, so proposing one would be pointless.  Indeed, the proposed standard here would uphold all but the most brazen gerrymanders, and that may be the point.

Ultimately, we know that Justice Kennedy wants to thread the needle between the protection of fundamental individual rights and the unnecessary judicial intrusion into the political process. Whether that is done here remains to be seen, but rest assured that it will be Justice Kennedy making that decision on behalf of the court.