MacIver News Service | Oct. 23, 2017
By M.D. Kittle[Madison, Wis…] If you look at the trend lines, U.S. Supreme Court Justice Anthony Kennedy continues to swing further left, and that could spell bad news for Wisconsin’s Republican-written electoral maps.
But the data don’t factor in all the “sociological gobbledygook” tied to the Badger State’s redistricting case now before the highest court in the land.
Last week, the Association of Wisconsin Lobbyists hosted a panel discussion on the legal battle over Wisconsin’s political maps, just days after the U.S. Supreme Court heard oral arguments on the gerrymandering case.
William Whitford, the lead plaintiff in the lawsuit brought by challengers of the redrawn political boundaries crafted by Republicans in 2011, joined Rick Esenberg, president of the Wisconsin Institute for Law & Liberty, for a kind of point-counterpoint discussion.
The moderator, University of Wisconsin-Madison political science professor Ryan Owens, broke down the Kennedy curve, or rather, the so-called “swing vote” justice’s slide to the left.
“You see Kennedy trending to the left, which, if you are a conservative, doesn’t give you much hope,” Owens told the sparse but engaged audience of about 20 people.
Kennedy, legal observers agree, stands to be the deciding vote in the controversial case that aims to answer the question of how much is too much political motivation in redistricting.
But Kennedy has drifted further left every year he has been on the court, Owens said, pointing to a chart tracking the justice’s positions on key cases over the years. The high court is often described as evenly split between four liberals and four conservatives, plus one – Kennedy. But that’s an overly simplistic characterization.
“In basic court terms, he is more liberal than (Justice Ruth) Bader Ginsburg when she first got on the court,” Owens said.
Kennedy’s position on some of the most contentious issues facing the court – from same-sex marriage to affirmative action – has “evolved.” The 81-year-old justice has “embraced a vision of a living Constitution, one that evolves with societal changes,” the New York Times wrote in 2015.
But has his opinion on political gerrymandering “evolved” since 2004? In one case, the Pennsylvania-based Vieth v. Jubelirer, Kennedy concurred with the conservative majority ruling that the redistricting case were not justiciable (capable of being tried by a court). At the time, the justice said there could arise such a case before the Supreme Court in the future.
The case was similar to Wisconsin’s redistricting challenge.
A divided court “held that the voters bringing the suit had not proved that they would be denied representation, only that they would be represented by Republican officials. Because the plaintiffs (those bringing the suit) were not denied the right to vote, to be placed on the ballot box, to associate as a party, or to express their political opinions, their political discrimination claims failed,” according to Oyez.org.
Whitford, a University of Wisconsin Law School professor emeritus argues that “any amount of blatant gerrymandering” violates the constitution, and Wisconsin’s case is among the more egregious violators.
Wisconsin Department of Justice Solicitor General Misha Tseytlin, a former clerk for Kennedy, argued before the court that the plaintiffs’ case does not meet the justiciable standard Kennedy sought 13 years ago and that Whitford doesn’t have standing to bring the lawsuit. Whitford, who claims Republicans set up unfair boundaries that disadvantage their opponents, lives in Dane County, where, particularly in capital city Madison, Republicans have very little chance of winning political seats.
But Kennedy’s grilling of the state during oral arguments could signal where the justice may come down on the controversy, Owens said, and it doesn’t portend well for conservatives.
“The party asked more questions is less likely to win,” the professor said, pointing to a summary of data from Supreme Court oral arguments over the past 60 years.
National election law expert Hans von Spakovsky says he hopes the court doesn’t recognize political gerrymandering as unconstitutional. It’s not the courts’ business, said Spakovsky, a former Federal Election Commission member and head of the Heritage Foundation’s Election Law Reform Initiative.
“Folks may get angry about the way districts are gerrymandered. They may not like the way they are drawn, but when the state Legislature is doing it you’ve got a way of making the legislators who do that accountable: You can vote them out of office,” he said in an interview last week with MacIver News Service on the Vicki McKenna Show.
The liberal challengers to Wisconsin’s electoral maps want to wrest control from the elected lawmakers and put it in the hands of the judicial branch, von Spakovsky said.
“What they want the courts to do is answer an unanswerable question, which is, ‘When is too much politics unconstitutional?’ That is an absurd question to begin with, which is why this is an absurd case at its very core,” he added.
There will always be politics in district line drawing because it is by its very nature a political process.
Justice Samuel Alito has warned the high court against transforming the federal courts into what he called “weapons of political warfare,” opening the door for losers in the redistricting process to “get in court what they couldn’t get in the political arena,” von Spakovsky said.
Chief Justice John Roberts characterized the standards advanced by opponents of Wisconsin’s redistricting maps as “sociological gobbledygook.”
“..(T)he whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but [what] I can only describe as sociological gobbledygook,” Roberts said during oral arguments.
But it more than likely won’t be Roberts’ vote that counts. All eyes are on the not-so-swing vote, Justice Kennedy.
The court is expected to rule in the case by next summer.