The U.S. Supreme Court is set to hear oral arguments in Wisconsin's partisan gerrymandering case on Tuesday. Attorneys defending Wisconsin's 2011 Assembly map and attorneys aiming to see it thrown out will field questions from the justices in person after months of back-and-forth written arguments in the case.
The Cap Times interviewed Ruth Greenwood, a member of the legal team for the plaintiffs and senior legal counsel for the Campaign Legal Center, a D.C.-based nonprofit, and Misha Tseytlin, Wisconsin's solicitor general and lead attorney for the defense.
Here is a breakdown of some of the key arguments they will deliver Tuesday.
How are you preparing for oral arguments?
Greenwood: We have written out hundreds of questions. We need to be able to answer very succinctly and on the spot. We had a moot court in Chicago, that went really well. We spent a few hours combing over areas, thinking about what questions would come up and some that may not come up just in case. We had a moot court in D.C., too. We’re generally preparing for questions and challenges that were raised in the state’s brief.
Tseytlin: It’s a little bit different than when you write a brief. You're (instead) taking a realistic picture of what justices are on your side. I think there are more justices open (to our argument) here than the popular opinion would suggest. In terms of preparing for oral arguments, you want to keep in mind and you want to be preparing for the justices that ask the most questions and the way they ask the questions. So when you’re thinking about answering a question or preparing stock answers you think, "That’s the kind of question Justice (Stephen) Breyer would ask me," or "That’s the kind of question Justice (Ruth Bader) Ginsberg would ask me.” So even if a particular justice is on your side given past votes, if they’re the more frequent questioners, you have to think about how you’re going to answer their type of question in a way that makes it more likely you’ll win overall.
What do you make of the focus on Justice Kennedy in this case, given his past writing on this issue?
Greenwood: We need to get to five votes. We make our arguments to the full court. The reason for the focus on Kennedy was that Kennedy was merely the voice for the five votes in Vieth (v. Jubelirer) in that case (a challenge to redistricting in Pennsylvania in 2004). All of the justices are important and we hope we can convince them all. I think this is important that both sides view this as a nonpartisan issue. We may be representing Democrats in Wisconsin but both sides gerrymander. We need to put a stop to this regardless of who is doing the gerrymander.
Tseytlin: One of the best things about Justice Kennedy is he doesn't hide the ball... he really tells you what he thinks of an area. Some justices, and Justice (Antonin) Scalia was famous for this, he would ask questions in a way to convince his fellow justices. You don't have to wonder what Kennedy thinks is important. The fact of the matter is that there are four justices who have expressed a view on this. Justice (Clarence) Thomas thinks (partisan gerrymandering) is not justiciable. Justice Ginsburg joined in Souter's dissenting opinion in Vieth (v. Jubelirer). For each of the justices I have some point of reference, it's not just Justice Kennedy.
It is in dispute whether there is constitutional basis for partisan gerrymandering to be reviewed by the Supreme Court. What say you?
Greenwood: We base law on precedent and the reigning precedent comes from the Vieth case where Justice Kennedy authored an opinion on partisan gerrymandering. He found the claim to be justiciable but is looking for a standard by which to test whether a map has become so partisan that it has become unconstitutional. To say there’s no basis, that is just not consistent with the case law in terms of standing. The standing should be derivative of the claim itself. The claim itself is that Democrats are harmed. We have plenty of examples of our plaintiffs being packed and cracked.
Tseytlin: What Justice Kennedy has said is you need a neutral historically based principle, the deviation from which would be unconstitutional. A good example is the "one person, one vote" cases from the 1950s and 60s. A lot of states were mal-proportioned. So whether you have an efficiency gap or something else, both of those are nonstarters until you figure out what you're testing for, what the constitutional principle is. So one of the things they say is you can have a large number of plans and see how far each plan deviates from a baseline, but if you don't know what you're deviating from, what is your national baseline then? You want a neutral thing, a "one person, one vote." In this context, they haven't identified the thing, so the rest of it is just noise. Even if partisan symmetry is like "one person, one vote" ...you still need a test that works and won't be politically biased that Legislatures will be able to comply with it.
(To Tseytlin) You say that the plaintiff's solution to partisan gerrymandering is a "hodgepodge" of social science theories. Can you explain what you mean by that?
Tseytlin: At the trial court they said, “We’re going to have that be the efficiency gap” and then we proved a lot of problems with the efficiency gap so when it went up on appeal, they said, "We’re no longer relying on efficiency gap." You can do efficiency gap, you can do mean, median difference, you can do sensitivity testing or you can do something else. That is what we call social science hodgepodge. Social science hodgepodge is their attempt to throw every social science metric in the hopper and say each court can pick one.
(To Greenwood) How do your respond to the criticism that your solution is just a “hodgepodge of social science theories,” as the state has said?
Greenwood: This is an evidentiary issue. The court looked at a plan and decided that it had extreme partisan effect. We offered evidence of an efficiency gap. If you look at the mean, median, difference, they all suggest that Wisconsin is a partisan gerrymander. The court could say that you have to use a particular test. We’d like the court to say whether a particular map is a partisan gerrymander. We think the efficiency gap improves on partisan bias, but again the point is that social scientists can use multiple metrics to determine if a party’s gerrymandering large and can endure.
We hope the Supreme Court would affirm that the court ruled correctly and this is exactly the kind of evidence that can be used in future cases. We hope they adopt the three part test: intent, effect and justification. We’re not trying to tie the hands of future courts and future experts. An example of how this could work was shown in the recent North Carolina (racial) redistricting ruling. They had to redraw their state and the lines were struck down as a racial gerrymander.
The state maintains that if the court rules in favor of the plaintiffs in this case, that it would give folks an open door to say some voting maps are illegal partisan gerrymandering when they might be racial. What say you?
Greenwood: I think that is a bizarre argument. I think they’re wrong. I think rather than having a problem we would be clearing a lane. If your claim is that the district is a partisan gerrymander then we think the remedy should follow from the harm, that the district line be redrawn, not the whole state map. We would be establishing what is a partisan gerrymander and what is not in this case.
Tseytlin: I think it is not too much of an exaggeration (to say) that every single plan drawn by a single party-controlled Legislature would be immediately be called into court as too partisan.
If you now had a rule where you had statewide challenges in the political gerrymandering context ... you'd have an unthinkable result which is that you'd have plaintiffs arguing, "No, no, no it isn't race, it was politics" so you have access to a more powerful claim. That would, in effect, privilege this new political cause of action over more traditional racial gerrymandering. It would in effect make it worse for a state to engage in political gerrymandering than racial gerrymandering. That's pretty unthinkable.
In (many) states, race and politics are correlated. Under the plaintiff's proposed approach, it would be more advantageous for plaintiffs to show political gerrymandering than racial gerrymandering as a natural matter of litigation because of course the holy grail of a plaintiff's is to get the whole map struck down and not just a district. It creates a very powerful incentive and creates a very perverse situation where suddenly engaging in political gerrymandering is worse than racial gerrymandering, which it just can't be. That is the opposite of what the Supreme Court has said in comparing race and politics.