Update: At the Election Law Blog, NYU’s Rick Pildes shown Tea leaves are slightly different. In his reading, Kennedy had trouble writing two October comments because he had to pick up Gorsuch’s failed ideas.
Yesterday, the Supreme Court heard oral arguments about a racism case, Abbott sued Perez. That is a complicated case. For a summary, see Amy Howe on SCOTUSBlog. The vote could have belonged to Anthony Kennedy, a regular rotating vote in gerrymandering cases. He is generally not favorable with such claims. Liberals, however, argue that Governor Abbott’s victory could open the door to a series of lawsuits by placing an appeal to the Supreme Court (currently at least one Comeinand). Either way, it seems the judges will align themselves in two wings, with Kennedy’s vote to take, like this vote (replacing Scalia with Gorsuch):
But that is not my topic today. Instead, I’d like to enter into some speculation about partisan opposition cases. Yesterday, a small clue came from an opinion made yesterday by the Court in an unrelated case. Bottom line: I think the reformers will win in Maryland, and they’ll win or have a lot of work to do in Wisconsin and North Carolina.
Comments mentioned in connection with an unrelated case from October, Jesner v. Arab Bank. It was written by Justice Kennedy. Usually, judges are assigned only one opinion for a given month on cases – and Whitford is also the case in October. The only judges who did not write a letter that month were Roberts and Gorsuch. Given the hierarchy of judges’ preferences, that seems to suggest the following possibilities, in descending order of likelihood:
- Roberts writes comments, and it’s a 6-3 win for reformers (Whitford) or something more complicated; or a 5-4 win for Wisconsin (Gill).
- Kennedy wrote his second opinion based on October, with the same possibility or a 5-4 win for Whitford.
- Gorsuch wrote the opinion and it was a 5-4 win for Gill.
I pause to note that in scenario number 1 and number 3, Roberts and Kennedy will vote together. # 2 may be partly down to speculation (see Rick Pildes’s essay) that Gorsuch was unable to build consensus on Jesner, and Kennedy had to pick up every piece.
Now let’s consider the fact that the Court has the second case, Benisek v. Lamone, from Maryland. Surely the Court accepted the second case because it wanted to something about partisan gerrymandering. That, plus the inability to assign such an important opinion to Gorsuch, suggests that at least Gill won’t win.
But what is the value of adding Benisek? Here are two possibilities:
- To avoid appearing bias, the Court wanted each party to commit a gerrymander – Maryland’s Democratic Party, Wisconsin’s Republican Party.
- There is something wrong or incomplete with the details of the Wisconsin case, for the purposes of the law they wish to apply.
This is not either / or the situation; both may be correct. And since Roberts cares about appearance, he can be a pushover Benisek.
inside Blog on Harvard Law, I Discuss that the main difference between the two cases is that Maryland is a single county, while Wisconsin is a statewide county. In Whitford oral argument, Roberts and Kennedy take this point and link it to reasoning based on the First Amendment (see pages 4-5 of the transcript):
JUSTICE KENNEDY:…. Court Aid – and you’ll just have to assume, we won’t know its exact parameters – decided that this was a matter of the First Amendment, not an equal protection issue. . Does that change the math so that, if you’re part of the state, are you interested in the First Amendment about whether your side is strong or the other is weak?
DIRECTOR OF JUSTICE: … I think the argument is quite simple that you, in your region, have a right to
are affiliated and you wish to exercise that association with others elsewhere in the state. And if you can’t challenge
distracting statewide, it looks like your request – there’s no way you can make your request.
To me, this shows that Kennedy and Roberts are on the verge of seeking a new right in the First Amendment: the right of parties with statewide representation. It will be a home race for the reformers.
However, there is another possibility: The courts have taken a more restrictive approach. They can simply find that in Benisek, Maryland Democrat has pledged one person to command a county. This is an extension of the past racial gerrymandering doctrine. That would also create a new law, as so far the Court has assumed that individual counties can be drawn for a variety of reasons, except race. The court will have to add a second exception for excessive partisan status. In this scenario, Whitford be sent back to do one thing.
In both cases, Kennedy wrote Benisek Writes Roberts Whitford comments, and both votes are 6-3. That means there will be five votes for the new doctrine, even after Kennedy or a liberal justice leaves the Court.
At the Princeton Gerrymandering Project, we are told what will be in Whitford opinion. I think the Wisconsin Democrats can win, while Brian Remlinger thinks the lower courts will have to try again, taking into account any new doctrine the Court comes up with. The other members of the group are still underweight.
In the end, what about North Carolina, Rucho v. Women’s Confederation of Voters? Rucho like Whitford, so they may need to do it again. Too bad, because the lower court wrote a well-organized opinion. No rest for tired people.