It's a case that could have profound ramifications on American elections. Today, the Supreme Court announced that it will consider whether judges can throw out election maps for being so partisan they violate the Constitution. The Court has never found a plan unconstitutional because of partisan gerrymandering. Our guests are Rick Hassan, professor at U c Irvan and founder of the Election Law Blog, and Josh Douglas, professor at the University of
Kentucky Law School. Rick, will you start by describing the case from Wisconsin that the justices will be considering. This is one of a number of cases involving partisan gerrymandering
that has been working his way up the courts. The claim here is that Wisconsin is basically a fifty fifty state between Democrats and Republicans, but the Republican state legislature drew the lines for their General Assembly in such a skewed way to help Republicans that Republicans are able to capture many more seats than would be done if it were a fairly drawn district. Josh, the last time the Supreme weren't really dealt with this issue was back in
twenty four. Can you describe where the Court left us after that case. Yeah, well, the Court didn't answer questions as much as provided more of them. Uh. For justices Uh said that there was no standard by which to test a partisan jmander. That is, courts basically shouldn't be involved in resolving these kinds of cases because it was not of a judicial nature and estead as a political question. The four other justices, four so called liberal justice each
came up with a standard. Uh. They said, here's a good standard for courts to use, and we think it's acceptable. And Justice Kennedy was in the middle and he said, I don't like any of the standards that anyone has proposed so far, but I'm not going to close the door to any future standard emerging. So you had with kind of a four one four decision in which Justice Kennedy holds all the keys to power. If he likes the standards, then maybe we'll have the ability to police
partisan jerrymandering. If he doesn't, then there'll be no way for course to do so. So Rick, the Court has been reluctant to take up partisan jerrymandering since that case. Why did they take up this case? Well, there was a there was one other case where the Court looked at Parson Jerremanry since then involving mid decade redistricting in Texas. But you're right that this is the first one. And I think the reason, or one reason the Court may have taken the case is that it came up in
an unusual way. Most cases come up they go to a district court, then they go to a three judge appeals court, and eventually worked their up to the Supreme Court on what's called a certain petition. This case came up directly from a three judge appeals court. I thought, I'm sorry at three judge district court directly on appeal to the Supreme Court. And when case has come up in this unusual way, when the Supreme Court decides not to hear that case, it means the lower court got
the ruling right. And so this was a rare case where a lower court said, yes, this is a partisan gerrymander. And so if the Court decided not to hear that case, it would have at the signal that yes, courts are in the business of policing these things, but we're not going to tell you what the standard is, how you're supposed to do it. Because this ruling would just mean the lower court got it right, not necessarily that it's reasoning was correct, and so it would have left so
many questions if the Court didn't hear the case. I really would have been shocked if the Court didn't take it to clarify this. So I wouldn't necessarily take it as the fact that the Court agreed to hear this case as meaning the Court is really ready to start
policing these things. It really is going to come down to Justice Kennedy and the fact that the Court an hour after issuing it's order that will hear the case, issued another order that it would not stay a lower court order to redistrict in the meantime, means that there is maybe some skepticism about what the lower court did, Josh, As you suggested earlier back in Justice Kennedy said, I haven't seen any standards that would let us judge what
is an unconstitutional partisan jerrymandering. How did the lower court in this case deal with that? What was the standard that it it suggested? Well, this is a new standard that was created by low professor Nick Stephanopolis and a political scientist Eric McGee called the efficiency gap and was getting without getting two technical into the details of it.
The basic gist is that it's a mathematical way to look at the maps performance UH and see if it's skewed towards one board party or another and the lower record UH. You recognize that just Kennedy had left the door open to a standard and it was a two to one decision, agreed with the efficiency gap standard, modified it a little bit and came up with a test that it thought was judicially manageable and that would pass Justice Kennedy's UH test or hope for meaningful standard to emerge.
And I think one of the key points here is that it's a fairly preciser technical standard UH that in theory should be easy to apply, and that's one thing that T. Kennedy was looking for. We're talking about this Preme Court deciding today to take up a case on partisan gerrymandering. We're talking with Rick Hassion and professor at U c Irvine and founder of the Election Law Blog,
and Josh Douglas, professor at the University of Kentucky Law School. Rick, can you talk about the politics of jerrymandering and whether this case has the potential to have a profound effect on that and the American election system just you know a small question there, right. So I think that the uh, the willingness of political uh parties to jerrymander is is
well established. And um, the reason this has become more of a partisan issue with Democrats um being warenched in reigning this in the Republicans is that Republicans control more state legislatures and therefore they engage in this process more uh. And so so I think it does become a kind of uh partisan issue. Uh. And if the Court actually reigned in partisan gerrymaner, I think we would see would
be more Democratic seats overall. That wouldn't be true in every state, but across the board, and this also would affect Congress. I think a state legislature is generally the ones that draw districts for Congress, and they'll they'll engage
in partison gerry managering there too. That said, uh, it's not clear that the Court's agreeing to police parton gerrymandering is going to have a huge effect on the number of seats that are Republican or Democrat, in part because Democrats tend to cluster in cities and so there's kind of a natural benefit to Republicans as districts are drawn, and a natural disadvantage to Democrats. So it's not really
clear that would have that effect. It's also not clear whether, as some people claim, reigning in partsonerry managering would produce more moderate candidates as Um, you know, a way to try to cure the polarization in our Congress and in our state legislatures, Joshua. While it may be unusual for the court to directly consider partisan jerry managering, we've had an awful lot of racial jerrymandering cases at the Supreme Court.
Can you connect the two forests? What's the intersection between racial jerrymandering cases in the Court's decisions there and this partisan jerrymandering issue. Well, I think there's there's two connections, and and Rick has a new paper out that fleshes is out quite nicely. Um. And the connections here are one. Race and party now have become so intertwined. That is to say that racial minorities tend to vote democratic, uh,
and white majorities tend to vote more Republican. Of course that's not universal, but I feel like because the numbers of those are the trend especially for racial minorities. And so you have a link between Toronto trying to draw lines on the basis of politics and doing so on the basis of race. And in fact, some states have defended their their maps on racial jerrymandering challenges by saying, no, we're not drawing lines based on race, only concerned about politics.
So so their linked. And then the second thing I'd say is that some plaintiffs have used the racial jerrymandering doctrine to attack what are really partisan jerrymanders because of that linkage. And so if the court were to adopt the standard now for partisan jerreymandering, that would cut out the argument that, well, we were really trying to do this for politics and not for a race. So I think they are very much intertwined. Um, But there's been
no standard to police partisan jerrymandering as of yet. If the court agrees with this standard, then there'll be another line of attack. You wouldn't have to go after a partisan jerrymander under the guys or racial jerrymander. You should go after the partisan gerrymander directly. So Rick in this Wisconsin case, the plaintiffs pushed a plan called the Efficiency gap, and the lower court didn't endorse it completely. What is
that plan and what's your opinion of it? Right, So the task in in all of these partisan gerrymandering cases is fixing out when consideration of political party information is too much. Uh. There's a legitimate reason to consider political party information when you're drawing districts, because you want to put people who have similar ideas together in the same district. That way a representative can best represent to that district.
It would be uh, kind of a strange situation if if districts kept changing, if they were saying half Democrats and have Republicans, and they kept shifting every couple of years, Uh, that might not be great for representation. So all the jice agree that okay to look at some party information,
and the question is how much is too much. In the VF case, which was mentioned earlier, the two thousand four case, there were I think at least six different standards that were put forward before Justice Kennedy, and each one of them he rejected as not sufficiently manageable as
a standard. And so what's been happening since VIFS the planets have tried to come up with other standards and the standard that the Planets latched onto in the Wisconsin case is as you mentioned earlier, called the efficiency gap, and it's basically looking at how many votes are wasted
in each district. So, for example, if you stick a whole bunch of Democrats into a district, so a district that's electing a Democrat has Democratic voters and Republicans to keep the example very simple, then those extra thirty percent of Democratic voters, those votes are kind of wasted. They
could have been put into other districts. And so if you see much more of this happening on the on the two Democrats and Republicans, you have this kind of asymmetry, then that shows you, um, that there could be a partisan Gerrymager Plane put that standard out there. The Court partially adopted it, and it's going to be one of the many standards that are going to be put before
Justice Kennedy as the case gets considered next term. About thirty seconds left of Josh, do you agree that Justice Kennedy will be the swing vote in this Yeah, He's absolutely the swing vote because he's uh, he said in that two thousand and four case. Um, I don't like any of the standards out there, but I'm open to a standard emerging uh if if if someone who's really smart can come up with it, and so he apparently is still actively looking and so he's the old ball game.
Thank you both for being on Bloomberg Law. That's Josh Douglas, professor at the University of Kentucky School of Law, and Rick hass And, professor at U c Irvine, also founder of the Election Law Blog, which we all follow.