The Oral Argument in the Gerrymandering Case: Questions That Could Matter

Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on September 29, 2017, 1:02 pm

It is often said that oral arguments rarely make a difference to the outcome of a Supreme Court case, that the Justices’ minds are essentially made up before oral argument begins.


But Gill v. Whitford, the blockbuster partisan gerrymandering case from Wisconsin, looks to be one of those rare cases for which what transpires during oral argument genuinely has a chance to be outcome-determinative.


There are two reasons for this.   First, Justice Kennedy—whose vote is widely understood as crucial to determining whether or not the Constitution is interpreted as containing a judicially enforceable constraint on the deliberately partisan manipulation of legislative districts—has made clear from his own previous opinions on the topic that he is genuinely torn between two opposing views: on the one hand, the need to identify some such constraint; and on the other, the inability to do so thus far. Even if Justice Kennedy goes into Tuesday’s oral argument tentatively leaning towards one side or the other (having read all the briefs filed in the case), there is a significant possibility that what is said during the argument could push him back in the opposite direction.   There is little doubt that even now, so far into the litigation of this issue, Justice Kennedy is still very much open to persuasion on this issue. It is, of course, the task of the Supreme Court advocate to be persuasive when and where the opportunity exists, and there may be moments in Tuesday’s argument—in responding to one of Justice Kennedy's questions, or even one of another Justice’s—when the advocate can make a point that either dislodges a previous expectation based on the reading of the briefs or instead solidifies a tentative understanding.


The second reason is that, even after all the briefs (or maybe because of all of them), there is still much uncertain and unsettled about the litigation of monumental lawsuit and thus important points that the oral argument can clarify or pin down in ways that might be helpful to one side or the other. For example, how important is the so-called “standing” issue, upon which the state of Wisconsin places much emphasis in its briefs, but which received relatively less attention in the district court (and virtually no discussion in the media’s consideration of the case)? In other words, could this particular lawsuit fail not because of an invalid theory on the merits of the claim, but because the plaintiffs did not identify specific districts that were harmed as a result of the statewide gerrymander (and thus did not attempt to link specific plaintiffs with a district-specific injury, even if the unconstitutionality of the gerrymander had a statewide character)?


Another point of uncertainty concerns the relationship between (1) the degree to which a redistricting map is skewed in favor of one political party and (2) possible permissible explanations for that skew, like longstanding geographic and demographic circumstances that cause (for example) Democrats to cluster in cities while Republicans are more dispersed in exurban areas. If a state legislature under control of one political party draws a map with a significant skew in that party’s favor, is the state then obligated to show that it was unable to achieve its permissible redistricting objectives with any less of a skew? In its briefs, the state seems to understand the district court (and the plaintiffs) as having adopted this position, which would amount to something like a “necessity” or “least restrictive alternative” analysis in other areas of constitutional law (typically those subject to the so-called “strict scrutiny” standard of judicial review). For example, on page 14 of its reply brief, the state defines the relevant portion of plaintiffs’ test this way: “was it impossible for the Legislature to draw a map that scored better, while still complying with other requirements?” And again, continuing on to the very next page of the same reply brief, the state repeats: “Plaintiffs define their third element as whether ‘alternative district maps’ could have been drafted that have less partisan symmetry on some metric, while still complying with traditional redistricting principles and other requirements.”


But maybe the state’s understanding of this point is incorrect and, instead, the district court (and the plaintiffs) set forth a position that operates more like a “reasonable relationship” test that is also familiar in other areas of constitutional law (those governed by a lower standard of judicial review than “strict scrutiny”)? In other words, on this view a state’s map would be constitutionally valid, even if skewed in favor of the party that drew the map (and intentionally so), as long as the map bore some “reasonable relationship” to permissible redistricting criteria; there would be no constitutional requirement of being the least skewed map that satisfies those permissible criteria. So, which of these two different understandings of the district court’s (and plaintiff’s) position is correct? Is a remand necessary, or unnecessary, to clarify this important point? These questions are ones for which Tuesday’s oral argument potentially could be extremely significant.


Related to this uncertainty about the appropriate legal standard for when “geography justifies skew” (to put the point colloquially and somewhat over-simplistically) is the nature of the relevant evidence concerning this particular legal issue. There is much discussion, especially among multiple amicus briefs, concerning the possibility of using computer simulations to identify a distribution of possible maps that conform to the state’s permissible redistricting criteria. This distribution then can be used to determine whether the state’s actual map has a degree of partisan skew that is, or is not, an outlier compared to other possible maps compliant with the state’s permissible criteria. (I have previously discussed this statistical approach and the amicus briefs that emphasize them.)


But questions remain about the relationship of this kind of statistical evidence and this specific lawsuit over this particular Wisconsin map. Was any such statistical evidence based on computer simulations introduced in the district court’s trial of this case and, if not, what is the consequence? Is it part of a plaintiff’s burden in challenging a redistrict map as a partisan gerrymander, according to the appropriate constitutional standard to be identified in this litigation, to provide statistical evidence of this nature—in order to demonstrate the state’s map to be an outlier in its degree of partisan skew (compared, again, to a myriad of other possible maps that would achieve all of the state’s permissible redistricting goals at least as well or better)? Or is the state obligated to provide statistical evidence showing that its map is not such an outlier, at least if a plaintiff is able to present a prima facie case (using other types of evidence) that the state’s map has a significant partisan skew that is both intentional and unwarranted? Is a remand required for further consideration of how this particular type of statistical evidence should bear upon an evaluation of this particular map’s constitutionality?


These are just some of the many questions that could be raised in Tuesday’s oral argument and, depending upon how they are handled by the advocates on both sides, potentially could make a difference in the Court’s disposition of the pending appeal.


If I myself had the opportunity to frame a question for each side, here’s what it would be:


For the state: do you accept the premise, as accepted by all the opinions in Vieth, that an extreme partisan gerrymander is unconstitutional in principle, the obstacle simply being the ability to distinguish in practice extreme partisanship from run-of-the-mill partisanship, which is inevitably acceptable; and if you accept this premise, then if new statistical techniques do in fact enable us to distinguish extreme from run-of-the-mill partisanship in a way that we could not before, must you necessarily concede that the constitutional question is justiciable, with the only remaining inquiry being whether your map is or is not extreme according to the new statistical technique?


For the plaintiffs: to what extent is the district court’s position, and the position that you are advocating in this Court, the same or different from the position of some of your amici who appear to advocate an “outlier” test based on a statistical technique using computer simulations; insofar as the positions are different, what is this Court supposed to do with this particular case at this stage of the lawsuit (assuming we find the amici persuasive on this point); and if there is no difference, why is there so much discussion about the possibility of using these types of computer simulations and the role they can and should play in litigation of partisan gerrymandering claims?


We will soon know what questions the Justices actually ask, see how the advocates respond to them, and have at least an initial impression of how effective these responses appear—especially in their effort to convince Justice Kennedy one way or the other. And maybe there will even be something of a surprise: like the possibility that another Justice, like Chief Justice Roberts, might appear open to persuasion (on something like an “extreme outlier” test, for example) in a way that had not been previously anticipated.


Edward B. Foley is Director of the Election Law at Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law at Moritz. View Complete Profile

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