WASHINGTON, D.C — The United States Supreme Court heard arguments Tuesday over Wisconsin's gerrymandered legislative map in a pivotal case that could upend how states nationwide draw their voting districts.
The justices questioned attorneys for just over an hour in front of a full courtroom as dozens of people rallied outside, calling for the justices to throw out Wisconsin's map.
Justices focused questions on whether a standard and test exists to determine if a map discriminates against voters on the basis of their party and whether the court should wade into a state-based issue at all. The liberal-leaning justices appeared to accept the test and method, the conservative ones had doubts.
Justice Anthony Kennedy's vote in the case has been seen as a crucial wildcard by legal analysts. He authored the court's most recent majority opinion on partisan gerrymandering in 2004 (in Vieth v. Jubelirer) and at the time said that a more precise, workable standard for partisan maps was needed before the court could weigh in. His questions Tuesday did not suggest he had taken a side on the tests proposed for the Wisconsin map.
Republicans drew the map after the 2010 census and have won majorities in the Legislature ever since, despite failing to win a majority of votes. Twelve Wisconsin Democrats sued the state, arguing the map was unconstitutional because it discriminated against Democrats.
Last year a federal three-judge panel agreed, throwing out the map and ordering the state to draw a new one by November 2018. The court also said there should be a better standard and test to measure other maps. Plaintiffs in the case have put forth a three-part test (intent, justification, durability), along with several social science methods to test how well a map responds to the three-part test.
At Tuesday's oral arguments, Chief Justice John Roberts said he is concerned how a ruling that would overturn Wisconsin's map would affect other state maps. It could cause a deluge of litigation, and lead the court into state politics, he said.
"It's going to be a problem across the board," he said.
Justice Neil Gorsuch likened the plaintiff's social science solution to a "pinch of this and a pinch of that" and questioned whether the court had jurisdiction over Wisconsin's map in the first place.
"Where do we get the authority to revise state legislative lines?" he asked.
Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg focused on how overly partisan maps affects democracy and the right to vote, noting that the technology and science to evaluate such maps has continued to improve.
"If you can stack a Legislature like this... the result is pre-ordained in most districts," said Ginsburg. "What becomes of the precious right to vote when we have this?"
"Every single science metric points in the same direction," said Sotomayor. "Why isn't that enough to prove unconstitutional partisan gerrymandering?"
"You have good evidence," Kagan told the plaintiffs.
Wisconsin's defense disagreed.
"I would dispute the premise that the decks are stacked here," said Erin E. Murphy, the attorney for Wisconsin's Senate, which drew the maps.
Justice Samuel Alito acknowledged that traditional gerrymandering is not ideal.
"Gerrymandering is distasteful," he said. But Alito said he worried about the court's ability to impose the plaintiff's new map-making standard and test on states. He was particularly doubtful of the "efficiency gap," a centerpiece of the plaintiff's argument.
"Is this the time for us to adopt this?" he asked of the efficiency gap. "It's full of questions."
During arguments, Justice Stephen Breyer threw out his version of a manageable, four-part test for the court to consider: Is one party in control of redistricting? Is there partisan symmetry (does the map treat parties the same?) Is there going to be persistent asymmetry over a range of votes? Is there any other justification for the redistricting?
If no test for measuring partisan gerrymandering is accepted by the court, attorneys painted starkly different views of the consequences.
Ultimately, the map "nullifies democracy," said Paul M. Smith, lead attorney for the plaintiffs. He warned that if the high court did not intervene in Wisconsin's case and rule on partisan gerrymandering now, it would continue to get worse nationwide.
"This is the last opportunity before we see a festival of extreme gerrymandering (in other states)," Smith said. "That's going to become the norm... you are the only institution in the United States that can solve this."
Misha Tseytlin, Wisconsin's solicitor general and lead attorney for the defense, said Smith's arguments were scare tactics that lacked both historical and constitutional basis.
"The plaintiffs are trying to launch a redistricting revolution," Tseytlin said. The plaintiff's arguments have been recycled and don't offer a better, more precise way to measure whether maps discriminate against voters, he said.
If the justices accept the plaintiff's three-prong test for determining if an unconstitutional partisan gerrymander exists, it would create a legal precedent: that the federal courts can rule on a state map and potentially deem it unconstitutional by partisan discrimination.