This morning, the Supreme Court ruled that citizens challenging partisan gerrymandering of Wisconsin's legislative districts hadn't proven they had grounds to sue. I want to say a little bit about the ruling, because it's gonna be a big deal going forward.
In the US court system, you can't just bring a case against the government because you don't like something they're doing. You have to prove what's called "standing."
In a gerrymandering case, that means you have to prove that you've been harmed by the district lines as they're drawn. But SCOTUS has no clear rules on partisan gerrymandering, so proving that harm is difficult. It's a bit of a Catch-22.
Today in Gill (link below), Chief Justice Roberts wrote for an almost unanimous Court, laying out the issues involved and basically telling the plaintiffs—citizens who said the districts violated their rights—to take another crack at it. supremecourt.gov/opinions/17pdf…
Justice Thomas, joined by Justice Gorsuch, didn't like the "take another crack at it" part, and wanted the whole case thrown out. (Because they suck and they hate democracy and rainbows and kittens.)
Justice Kagan, on the other hand, thought the citizens who brought the suit failed to make the best case possible, and wrote—joined by the other three liberal justices—to show them how to make their arguments better and broader.
The main argument the plaintiffs made in Gill was that they'd been subjected to unconstitutional "vote dilution"—shoved into a district where their votes essentially didn't matter.
There are two kinds of vote dilution: "packing," where you're shoved into a district with lots of people who vote like you, to keep you out of other, more potentially competitive, districts, and "cracking," where you're in a tiny minority.
In Kagan's concurrence, she suggests that the plaintiffs in Gill have another constitutional argument to make, one based on freedom of association. That's the background. Let's read!
(Reminder: I'm not an attorney. Just a dork. Caveat lector.)
Kagan begins by saying that the country is experiencing a growing crisis of democracy, one that only the courts can remedy.
"More effectively every day," Justice Kagan writes today, partisan gerrymandering "enables politicians to entrench themselves in power against the people’s will."
"And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches."
Kagan warns politicians that "standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one." But she's just getting warmed up.
Elected officials in states like Wisconsin, Kagan writes, are today "degrading the nation's democracy," and it's up to the courts to stop them.
American democracy has been placed in peril by antidemocratic self-dealing, Kagan says. And Ginsburg, Breyer, and Sotomayor cosign. This is strong stuff.
Kagan proceeds to conduct a thoughtful, clear review of "packing and cracking" and the standing issue. It's on pages 3 through 7 of her concurrence, and it's worth reading if you want to understand this stuff better. supremecourt.gov/opinions/17pdf…
From there, Kagan moves on to a discussion of how partisan gerrymandering violates citizens' rights to freedom of association. She begins, tellingly, by quoting an opinion on the subject by ... Justice Kennedy.
Again: Kagan is speaking for four justices here, and she begins by quoting a fifth—the sole remaining justice she would need to assemble a majority in support of her position.
(If you're looking for signs and signals on whether Kennedy is going to retire at the end of this term, your ears just perked up.)
Kagan continues: "Consider an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left untouched (neither packed nor cracked)."
"His individual vote carries no less weight than it did before. But if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party."
"This is the kind of “burden” to “a group of voters’ representational rights” JUSTICE KENNEDY spoke of. Id., at 314."
Justice Kagan to Justice Kennedy:
"Members of the “disfavored party,”… deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office."
"(not to mention eventually accomplishing their policy objectives)"
What Kagan is saying here is that we each have a constitutional right to live in a healthy representative democracy.
Is she done?
To recap: The standing argument advanced by the plaintiffs was one of vote dilution, which turns on the lines of their individual districts. Kagan is pointing them to an association argument, which looks at the health of the democratic system in the state as a whole.
Having taken a moment to refresh herself, Kagan suits up again: "Partisan gerrymandering jeopardizes '[t]he ordered working of our Republic, and of the democratic process.' Vieth, 541 U. S., at 316 (opinion of KENNEDY, J.)."
"It enables a party that happens to be in power at the right time to entrench itself there for a decade or more, no matter what the voters would prefer."
"At its most extreme, the practice amounts to 'rigging elections.'"
"And the evils of gerrymandering seep into the legislative process itself: indifference to swing voters and their views; extreme political positioning designed to placate the party’s base and fend off primary challenges; the devaluing of negotiation and compromise."
"And our history offers little comfort. … New redistricting software enables pinpoint precision in designing districts. … Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides."
And again, she underscores, this is an arena in which the Court's role is absolutely essential. "Politicians’ incentives," she writes, "conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms."
The issue of partisan gerrymandering will soon be before the Court again, she concludes, and "I am hopeful we will then step up to our responsibility to vindicate the Constitution."
Whew.
I don't think Kennedy's stepping down, y'all.
I mean, maybe he is. (Though there's no way Kagan writes this concurrence the way she does if she thinks it's a done deal.) But no, I don't think he is.
And if he doesn't, and if he comes back willing to sign on to anything that even somewhat approximates what Kagan did today, the implications go FAR beyond the drafting of district lines in state legislatures.
It's not exactly a surprise to learn that the four liberal members of the Supreme Court believe that our democracy stands at a moment of profound existential crisis, but still. There's something about hearing it said out loud.
The travel ban decision is going to be a barn burner.
