Anthony Kennedy's Retirement Is A Bad Sign For Fixing Gerrymandering

“I don’t think it’s a lost cause. We’re not giving up,” one lawyer said.

Justice Anthony Kennedy’s decision to retire from the Supreme Court could immediately sway the battle over partisan gerrymandering, where Kennedy’s vote was seen as essential in getting the high court to step in and explain how far lawmakers can go to draw electoral districts to their advantage.

In a 2004 case, the justices were split along ideological lines as to whether there was a standard that courts could use to evaluate the constitutionality of partisan gerrymandering. The more liberal ones said there was, while the court’s more conservative justices said there wasn’t. Kennedy was in the middle, saying that a standard might exist, but the court just hadn’t found it yet. It was an invitation for challengers to return to the Supreme Court with a standard, and they did so this year in two cases dealing with districts clearly drawn to entrench the control of those who already hold office.

But in his final term on the court, Kennedy passed on the opportunity to do something about partisan gerrymandering. The court dismissed the cases on procedural grounds, kicking them back to lower courts for further consideration. Those cases are likely to return to the Supreme Court in the near future, but the conservative jurist President Donald Trump picks to replace Kennedy may be more likely to say that there is no standard courts can use to evaluate partisan gerrymanders.

Kennedy’s departure means advocates may have to recalibrate their strategy for a Supreme Court likely to be more conservative and less willing to set limits on what lawmakers can do. There are currently partisan gerrymandering challenges in federal courts in Wisconsin, Maryland, North Carolina, Ohio and Michigan and advocates want the high court to weigh in before the next round of redistricting in 2021, when they say new technology will make partisan gerrymandering even more severe.

“The long-term prognosis is not good for those who want courts to rein in partisan gerrymandering,” said Richard Hasen, an election law expert at the University of California, Irvine.

““The long-term prognosis is not good for those who want courts to rein in partisan gerrymandering.””

- Richard Hasen, University of California, Irvine

But lawyers involved with the redistricting cases that the Supreme Court heard this term downplayed the impact of Kennedy’s retirement on their cases. While Kennedy may have been open to restricting partisan gerrymandering, he chose not to, and he may not have felt any differently when the cases returned to the court in a few years.

“In some ways I would be lying to say that it really crazily upends things,” said Michael Kimberly, who appeared before the justices in March to argue that one of Maryland’s congressional districts was unconstitutionally drawn to ensure a Democrat would get elected. “Even apart from his retirement, even if he were staying on the court, the pretty strong feeling I had was that if he was ready to do it, he would have done it.”

Ruth Greenwood, a lawyer at Campaign Legal Center representing plaintiffs challenging partisan gerrymandered maps in Wisconsin and North Carolina, said challengers would continue to make their case in court.

“No matter who is on the Court, we will keep fighting for fair maps. That has not changed,” she said in a statement.

Kimberly added Chief Justice John Roberts would now become the swing vote in the partisan gerrymandering cases, and lawyers would tweak their arguments to appeal more to him. He said Kennedy seemed more likely to rule broadly about the constitutionality of partisan gerrymandering, while Roberts was more likely to issue a narrow opinion.

“I don’t think it’s a lost cause. We’re not giving up,” he said.

Convincing Roberts that the court should step in and limit partisan gerrymandering could be a challenge.

During October oral argument in one partisan gerrymandering case, he expressed concern that the court’s reputation would suffer if it started weighing in on partisan gerrymandering because the public would see the justices as favoring one party over the other. He dismissed tools developed to evaluate the severity of gerrymandered maps as “sociological gobbledygook.” When Kimberly appeared before the court in March, in the second partisan gerrymandering case, Roberts seemed similarly skeptical. But he also asked how a map gerrymandered for partisan gain was any different than an unconstitutional statute that explicitly favored one party over the other.

E. Mark Braden, a lawyer who has represented Republicans in redistricting cases, said he wasn’t convinced Trump’s nominee would favor the Supreme Court staying out of the partisan gerrymandering. Trump has said he will pick his nominee from a list of 25 candidates, and Braden thinks many of those candidates haven’t really dealt with gerrymandering before. Braden added it wouldn’t surprise him if one of Trump’s picks did eventually rule that courts could step in to limit partisan gerrymandering.

“I don’t think this issue has been presented to many of them,” he said. “More likely than not, they are likely to be more conservative on the issues in the sense of moving things from the political arena to the judicial arena; I think as a threshold matter.”

Kennedy’s retirement could also mean that advocates more forcefully pursue paths other than the federal courts to rein in partisan gerrymandering, said Michael Li, counsel at the Brennan Center for Justice. That could mean more lawsuits like one in Pennsylvania, where advocates successfully sued in state court to strike down the state’s congressional map. It could also mean more ballot measures like one in Michigan, where voters will choose in November whether to take the redistricting process out of the hands of lawmakers entirely.

“Partisan gerrymandering still can be - and needs to be - fixed,” Li said. “It just may not be the Supreme Court that does it.”