Court Tests if Partisan Gerrymandering Can Go Too Far (Audio)

be so one sided they violate the Constitution. In oral arguments, today, the conservative and liberal justices appear to appear divided on the issue, with Justice Anthony Kennedy in the middle as the swing vote. Joining me our elections law experts Michael Lee, senior counsel at the Brennan Center, and Richard Brafault, professor

at Columbia Law School. Rich Last year, a divided three judge Federal Court panel ruled that Republicans in Wisconsin had gone too far in drawing maps, and that was the first time that a federal court in more than thirty years rejected a voting map as part as in jerrymandering. Tell us a little bit about the case before we

discussed the Supreme Court arguments. Sure, the case deals with the map that the Republicans, and that that state of Wisconsin, which at that point had a Republican governor and lopsided majorities in both houses of the state legislature, Republican majorities drew for the state legislature going forward. I think the challenges particularly to this um to the maps in the state Senate and the State Assembly. Uh, the plaintiffs were argued that the entire state map was was unconstitutional nop.

They didn't challenge specific districts, they challenged the map as a whole of them. In elections in which the Democrats got actually slightly more votes than Republicans, I think in two thousand and twelve they won my forty of the vote,

the Republicans slightly less. The Republicans won sixty out of ninety nine seats, and the election the Republicans got of the two party vote and one sixty three out of out of ninety nine seats, so they got lopsided majorities even when they Republicans did, even when they had less than a majority or just slightly more than a majority. The Democratic claim was that some combination of discriminatory in

Tampa plan was written. It's hardly by Republicans with an effort to maximize Republican advantage, and this this enormous steward favorite Republicans headed up to an unconstitutional gerrymander. All right, Michael, you were at the Supreme Court arguments today. Tell us your impressions. Well, I think it was overall a really

strong argument on behalf of the Wisconsin plaintiffs. UM. The Court was very engaged, and they ask a lot of questions, and they were clearly clearly wrestling with some of these issues, but they also seemed like they clearly wanted to to sort of do something, and they seemed increasingly comfortable with the idea that they could do so, not only because they are all of these statistical measures, but because they're um focusing on defining a clear statement of the problem, UM,

and that that that will help get to a point where they can actually solve at least this form of extreme gerrymandering. Does that include some of the conservative justices, like Justice Roberts said that we'd have to decide in every case whether the Democrats or the Republicans win, and that it would affect the integrity of the Court's decision. Did you feel any of that from the conservatives concerns, well, some of the conservatives who are skeptical, both for legal reasons.

Justice Corsage in particular had sort of an originalist view of this UM and you know, other people sort of wondered about how you would sort of make these measures work and whether they were reliable. UM. But I think that the Paul Smith, who argued the case on behalf of the Wisconsin plaintiffs, did a good job of putting everything in context and explaining that you know, you know, these measures are just one part of what the court would have to have to look at UM and UM.

You know, they could divide it a formulation that you know would work really well. And Justice Briar offered one that that focus on, you know, whether there was a single party control and then whether there was an asymmetry and you prove it through one or multiple tests, and Invulsements suggested that multiple tests might actually be useful, and then whether it was durable UM and you know, uh, there was some back and forth about whether durability was

something that the court could really sort of know. But as one of the justices pointed out, UM, I believe it was Justice Kagan like this, Uh, you know, this is something that already is being done like map for ours, and when they draw these maps are actually trying to project how they will perform for the course of a decade. So if you can do it for evil, you can certainly do it for good. Um in terms of you know, policing Jerry mannering. And then you know there's there's also

room for um a justification. So arguing that it's the geography of the state, the residential patterns, or the voting right fact that the causes a skew. Um. You know that that works out to be a pretty manageable test. And at the end of the day, it really about the test. It's about sort of a clear articulation of a constitution standard. And um you know that that seemed to get a lot of buy in from a lot

of the justices. And um rich in about forty five seconds here can you explain briefly how Justice Kennedy has been seen as the Court's pivotal point in this Why sure it derives from the last time the Court grappled with this, which is in two thousand and four with the Court in Effects split four one four where four justices led by Justice Scholey or the Conservatives essentially saying, we just Jerryman recently nothing, and the Court can take

up the other four justices the liberals in effect saying yes, we can, although they all had different tests for it. Justice Kennedy in the middle sided with the Conservatives and saying and throwing out the challenge in that case is that I haven't seen a standard yet, but I'm hopeful that we might on in particularly focused on the First Amendment, doesn't think to think about and he focused on the

possibilities of new technology. Alright, thought, rich We've been talking about a Jerryman during case that has reached the Preme Court that could have implications for the American political landscape. My guests are Richard Bruffall, he's a professor at Columbia Law School, and Michael Lee. He's a senior counsel at the Brennan Center. And Michael was at the Supreme Court

arguments today. Michael, you heard rich talking about Justice Kennedy in this two thousand four ruling is looking for a better plan or you know, way to do this, and the Democrats here were ready to give him that plan. But I understand he didn't ask any direct questions about it, all right, he um. Most of his questions were aimed at Wisconsin and the State of Wisconsin's lawyers, the two sets who argued today, Um, and he had a lot of tough questions for them. Um. So it's a little

bit hard to sort of read where exactly he is. Um, although you know, you know, what the plaintiffs offered in the way of a test was built up on things that justice can he said both in two thousand four and then in a later two thousand six case, and so um, perhaps that's a signal that he's um comfortable with what they have done, or perhaps comfortable that justice taken and all of the other justices asking the questions sort of really got it all of the things that

needed to be asked rich Wisconsin is among the majority of states where the state legislature has the primary role in redistricting. If the Supreme Court rules in favor of the plaintiffs, will a plan Will they have to have a plan for how this how these redistricting maps will be done, or will they just reverse what will happen? Well, but pite effectually one below. So if the Supreme Court, the Spreme Court could actually affirm what the pre judge

court found, which that the current plan is unconstitutional. More going forward, though, um, one of the challenges for the Court is to come up with a standard which deals with Wisconsin but doesn't necessarily exposed every plan on the country to litigation. That's one of their concerns. One approach the number of states have taken. I think you were hinting at that a number of states have adopted independent redistricting commissions. It's extremely unlikely the Sprint Court ever mandate

anything like that. It's hard impossible to imagine. One could imagine that this that if the Court finds that that gerryman ery is unconstitutional, that might give a boost efforts at the state levels to create such independent districting commissions. And Michael, you said that the Justice seemed very positive about possibly um getting rid of this gerrymandering. But is

it What kind of a step would that be? It describe how momentous a step that would be if the Court decides in favor of the Democrats here, Well, it would be huge because right now the Supreme Court has never put partisan jerrymandering out of bounds in the same way that it's put racial gerrymandering, out of bounds, and other sorts of discrimination. And as a result, many states have felt that they can go to town when it comes to partisanship, UM, as long as I can sort

of justify it on the basis of politics. And and that includes in many places in the South, in particular, things that are very disadvantageous to African Americans are Latinos. And you've heard throughout this decade in the South, uh, states defend maps that are disadvantageous to minorities by saying, no, no, no, we weren't trying to hurt African Americans or Latinos. We were trying to target democrats and lo and behold, they

just happened to be African American and Latinos. And that's a that's a um, you know opening that's still available right now, because if you fit in the politics bucket, you're out of bound, your inbounds. But if you fit in the race boocket, you're out of bounds, and the court could close that and UM, you know, help um not only sure political fairness, but fairness for communities of color and rich. As Michael said, I've also been reading from other political experts who say that this could be

practically revolutionary, could change the American political scene. Do you agree with that? It's hard to it would have a big impact. There are right now a significant number a number of states which have gerrymandrid congressional delegations and gerry mandrid state legislatures. Much return on exactly what the court says. Part of the proof that the plaintiffs in Wisconsin we're able to make was that wis constant is really extreme, and it's a really extreme gerrymander, more than almost any

plan in the country over the last forty years. If the opinion has limited to something extreme, it's not clear how far it will go. I mean we I think we need to see exactly what they say. But certainly Michael suggesting gerry mandering has been normal, has been increasing and has gotten worse, that it would the increased use of computerization to develop plans. If, if, if the Court doesn't act on this, I think we're going to see

even more extreme jerrymandering going forward. Michael, did the justices ask questions about the sophisticated technology that now allows digital precision in devising these voting maps? They did, and and Paul Smith really was almost apocalyptic and talking about what the cycle would look like. UM one, the maps are next redrawn based on all of the sophistic headed technology. And he pointed to one of the briefs that was filed by a number of political scientists which does a

good job of laying that out. But the justices also um on the plus. But they also seem to think that technology could help solve this problem and make this manageable. You know, they struggled to think that they could manage this problem and not have to get into everything. But now you can draw thousands of millions even of computer simulated maps and and test out the actual maps against those and and you know, decide whether they're likely to

be random or not. So technology is both um you know, a really a real danger but perhaps something that makes us much more uh comfortable for the court to feel like they can get involved and not have to make lots of complicated decisions about where lines go. Were with about thirty seconds left, Michael, And since you were there, I'm going to ask you in your opinion after hearing the arguments, do you believe that the court is going

to um rule in favor of the Democrats here? Well, you know, I've always famously misguessed the court on any number of occasions, so I don't want to start of like hazards. I guess you know the case that was presented by the Wisconsin plantiffs challenging the maps, it was really strong. Alright, I'll have to we'll have to leave it there. Thank you both. That's Michael Leese and your counsel at the Brennan Center and Richard Ruffal, Professor, Columbia Law School.