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How Will The Supreme Court Rule on Partisan Gerrymandering?

Summary:
Ballotpedia asked five redistricting buffs to comment on how the Supreme Court might rule on the two gerrymandering cases it is considering, Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland. My response:  One clue is timing. Rather than fast-track consideration of Benisek v. Lamone, the Court instead set an oral argument date of March 28. That leisurely pace ensures that any decision will come late enough in the term to wreak havoc on this year’s [election] cycle if it announces the imposition at once of a new constitutional standard. Few if any Justices wish to wreak such havoc avoidably. From which I deduce that the Court either 1.) does not expect to announce a new standard, or 2.) expects to do so only in a staged or prospective way that allows states time for

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Ballotpedia asked five redistricting buffs to comment on how the Supreme Court might rule on the two gerrymandering cases it is considering, Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland. My response

One clue is timing. Rather than fast-track consideration of Benisek v. Lamone, the Court instead set an oral argument date of March 28. That leisurely pace ensures that any decision will come late enough in the term to wreak havoc on this year’s [election] cycle if it announces the imposition at once of a new constitutional standard. Few if any Justices wish to wreak such havoc avoidably. From which I deduce that the Court either 1.) does not expect to announce a new standard, or 2.) expects to do so only in a staged or prospective way that allows states time for compliance or kicks in with the next Census cycle.

While I believe Justice Kennedy remains open to the development of some constitutional standard in this area, I also think he is looking for a fix that is objective and mechanical enough that 1.) it yields the same results from state to state and from Republican-appointed as from Democratic-appointed lower court judges, and 2.) the clarity of what it calls for and how to comply cuts off a need for continual massive litigation and judicial supervision (compare here the success of the one-person, one-vote revolution). Kennedy’s having joined with the conservatives to stay the Gill ruling leaves me thinking that as of then he wasn’t convinced that the “efficiency gap” standard fit that demanding bill.

I’m also pleased to note that my essay on gerrymandering from a libertarian/classical liberal perspective, which appeared originally in Cato Unbound, is featured in the latest Cato Policy Report. You can read it here

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