//  10/4/17  //  In-Depth Analysis

By David Gans, Constitutional Accountability Center

Over the course of three decades on the Supreme Court, Justice Anthony Kennedy has developed a legacy as a passionate defender of the First Amendment.  In case after case, Kennedy has spelled out the structural role the First Amendment plays in our democratic system of government, insisting that the government may not discriminate against forms of speech or political association disfavored by the government.  Doing so, as Kennedy has explained, runs afoul of one of the First Amendment’s most basic rule--its prohibition on viewpoint discrimination.  The question at the core of the Supreme Court’s blockbuster partisan gerrymandering case, Gill v. Whitford, argued earlier this week, is whether Kennedy would carve out a redistricting exception from this foundational First Amendment principle. If the questions at oral argument are any indication, Kennedy seemed inclined to strike down Wisconsin’s extreme partisan gerrymander as a violation of the First Amendment.

In 2004, in Vieth v. Jubelirer, Justice Kennedy suggested that partisan gerrymandering would be better analyzed under First Amendment principles than under equal protection ones.  Early in the Gill argument, Kennedy made clear that his views had not changed.  Beginning with his very first question, Kennedy repeatedly invoked the First Amendment and pressed defenders of Wisconsin’s partisan gerrymander to explain whether the First Amendment permitted this kind of official discrimination against a party disfavored by the state.  But neither the Wisconsin Solicitor General nor Erin Murphy, who represented the Wisconsin legislature, was able to offer any convincing reasons to permit the government to use its authority to entrench one political party in power. 

In perhaps the most important and telling exchange of the argument, Justice Kennedy asked Murphy just how far a state could go to manipulate the electoral process for partisan gain.  “Suppose a state constitution or state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to increase -- have a maximum number of votes for party X or party Y. What result?”  This was hardly a question out of left field—Kennedy had offered this very hypothetical in Vieth—but Murphy had a hard time answering it.  Frustrated by Murphy’s efforts to dodge, Kennedy asked the same question again and again.  Murphy resisted framing gerrymandering in First Amendment terms, but, in the end, she did concede such a law could be considered “a First Amendment violation in the sense that it is viewpoint discrimination against the individuals who the legislation is saying you have to specifically draw the maps in a way to injure.” 

Having secured this concession, Justice Kennedy was finished for the day.  He did not ask a single question of Paul Smith, who, in a brilliant argument, urged the Court to prevent states from nullifying our democracy.

Buttressing Kennedy’s questions, Justice Ruth Bader Ginsburg stressed that gerrymandering made a mockery of our core democratic principles.  “The precious right to vote, if you can stack a legislature in this way, what incentive is there for a voter to exercise his vote? Whether it’s a Democratic district or a Republican district, the result—using this map, the result is preordained in most of the districts.”  Justices Elena Kagan and Sonia Sotomayor repeatedly stressed how extreme the Wisconsin gerrymander was—as Sotomayor observed, “they kept going back to fix the map to make it more gerrymandered”—and that courts could separate the wheat from the chaff, intervening when necessary to ensure that voters choose their elected representatives, not the other way around.  Indeed, as Kagan observed, the new technologies that allow legislatures, with surgical precision, “to entrench a party in power” can be used by the courts “to evaluate what they're doing” and check abuses of state power.  This was a case, Kagan suggested, where the master’s tools could be used to dismantle the master’s house.

Apparently growing nervous, the Court’s conservative wing, led by Chief Justice John Roberts, raised a host of concerns to try to convince Kennedy to stay his hand.  But these lines of questioning did not appear to gain any traction.

Chief Justice Roberts worried that intervening to limit partisan gerrymandering would “cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”  According to the Chief Justice—who showed little concern in other cases  about restraint when gutting the Voting Rights Act and wrecking our nation’s campaign finance system—the Court should be wary of policing state efforts to lock up the political process in one party’s favor.  The Chief Justice’s apparent concern was that the Court would be overrun by partisan gerrymandering cases and that there was no neutral principle rooted in the Constitution to decide them.  The “intelligent man on the street,” Roberts worried, is going to say that rulings on gerrymandering are “a bunch of baloney,” resting on party preference, not constitutional principle.   But, as Justice Kennedy’s questions show, there is fundamental constitutional principle at stake: the First Amendment forbids the government from disfavoring a group of voters because of their views.  It’s the Court’s job to enforce that command. 

Justice Neil Gorsuch suggested that First Amendment principles shouldn’t apply at all to redistricting, pointedly asking “where exactly do we get authority to revise state legislative lines? When -­ when the Constitution authorizes the federal government to step in on . . . state legislative matters, it’s pretty clear.”  But, as Gorsuch should well know, the text and history of the Fourteenth Amendment requires states to respect the fundamental rights guaranteed in the Bill of Rights, including the First Amendment.  As Paul Smith replied, there’s nothing unusual about “using the First Amendment and the Fourteenth Amendment to regulate the abusive management of state elections by state government.”  Gorsuch’s comments reflected a selective originalism, turning a blind eye to the Fourteenth Amendment’s limitation on state abuse of power.

A lot can still happen between now and when the Court issues its opinion in the case, but after an hour of argument, it seems that the Justices inclined to uphold partisan gerrymandering will face an uphill battle to convince Justice Kennedy that Wisconsin’s extreme partisan gerrymander can be squared with the First Amendment principles Kennedy holds dear.

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