As you probably know if you read this blog, Justice Kennedy asked the following hypothetical at oral argument in Gill v. Whitford Tuesday of Erin Murphy, counsel for the Wisconsin State Senate:
You've probably considered the hypo many times. 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?It didn't, however, seem like Murphy had considered the hypo any times—which is odd, for as I'll discuss below, Kennedy had already asked and answered essentially just this hypo himself 13 years ago in his essential concurring opinion on the subject in Vieth v. Jubelirer—as she began with a tentative "at least you're closer [to something unconstitutional]" answer, drifted into an "I don't think . . . that you've proven a constitutional violation" answer on further questioning from Justice Ginsburg, returned seconds later on still further questioning on the hypo from Justice Alito to allowing that "at least at that point, you know the intent," then confidently told Justice Kagan minutes later that "just finding the intent isn't a problem," after which, when told by Justice Kennedy that "I don't think you ever answered the question," she (a) volunteered that his hypo "could be your instance of a -- a problem that can be actually solved by the Constitution," (b) said that whether his hypo violated the Equal Protection Clause or First Amendment was "a little hard to say at this point because, you know, it really just hasn't been fully explored, this concept of how you would come at all this from a First Amendment perspective," and finally (c) answered about 10 seconds later:
Yes. It would be an unconstitutional, if it was on the face of it, and I think that that would be better thought of probably as an equal protection violation, but you could think of it just as well, I think as 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, but, again, I --By my count, that's four maybes (the two "at least" answers, the "could be your instance" answer, and the "a little hard to say" answer), two nos, one final and definitive yes, and one stunningly quick switch on "how you would come at all this from a First Amendment perspective." (None of which is to dump on Murphy, who's done a lovely job in her past appearances at the Court.) Wisconsin's SG, for his part, recognizing the significance of the question, picked it up in rebuttal and said that Kennedy's hypothetical statute would violate the First Amendment because it would stigmatize the minority party, not because it would be evidence of a facially partisan gerrymander. This is clever but I don't think it will help Wisconsin, as I doubt anyone will agree that the only problem with that hypothetical is stigma.
JUSTICE SOTOMAYOR: . . .
2. The answer I would have given to his hypothetical.
Lamenting how argument went with an appellate-lawyer friend who, like me, wants Wisconsin to win (though I want Wisconsin to win for Frankfurterian reasons and he or she has some troglodytic reason or another having to do with the powers of common-law courts at Westminster), my friend asked how I would answer Justice Kennedy's question. That's easy, I said. (Sorry, Erin Murphy.)
As I had always understood the Court's partisan-gerrymandering precedents and Justice Kennedy's concurring opinion in Vieth, or even the Vieth dissents, a gerrymander isn't unconstitutional merely because it has partisan purposes; virtually all redistricting does. Rather, a gerrymander has to go too far, excessively diminish the electoral power of the minority party or excessively entrench the then-majority power. And whether even a law that facially requires maximized partisan advantage in districting, subject to traditional districting principles, results in excessive gerrymanders will depend on the districting plans that maximization generates and how much partisan advantage maximization gets you in those plans. For sometimes a maximally partisan gerrymander may not be all that partisan, given the constraints of traditional districting principles and compliance with federal law, both constitutional (one-person one-vote) and statutory (the Voting Rights Act), that are baked into Justice Kennedy's hypothetical. We could easily imagine, for example, that a particular districting plan that maximized partisan advantage as much as it could while adhering to traditional districting principles and federal law would only translate 50% of statewide votes to 54% of legislative seats in a given election cycle. Is that unconstitutional? It sounds pretty unexceptional.
In order to decide if an admittedly maximally partisan gerrymander did go too far, then, the Court couldn't just decide on the ground of the state's stated aims; it would still have to engage in the line-drawing and measurement problems that have confuted all attempts to decide partisan-gerrymandering claims since the cause of action was recognized. That is to say, first the Court has to draw a non-arbitrary line for how far is too far; next it has to somehow predict whether a districting map will, in future elections, go too far. So far, both have proved impossible tasks, though that doesn't mean they always will. So, I told my friend, a challenge to Justice Kennedy's hypothetical law would be just as nonjusticiable as a challenge to a facially neutral districting scheme, no more no less, and even if Justice Kennedy believes he knows that this scheme was intended to maximize partisan advantage, as do I, whether that maximization is excessively partisan given the constraints on maximization is a nonjusticiable question. At least, that would be my answer were I in Ms. Murphy's position.
3. . . . which turns out to have been flatly rejected by Justice Kennedy's opinion in Vieth.
The funny thing is, though, is that everything I've just said is completely undermined by what Justice Kennedy's concurring opinion in Vieth actually said. In Vieth, Kennedy famously couldn't find partisan-gerrymandering claims justiciable yet, but was unwilling to hold they could never be found justiciable on the ground of some standard that had yet to be offered. People have always thought that the standard he was looking for was an excessiveness standard, but that doesn't seem to be right at all, or at least not in the sense that he's been searching for a quantitative measure of excessiveness.
In the first place, Justice Kennedy already answered his own hypothetical in Vieth in a way that rules out my answer to his question. Arguing that partisan-gerrymandering claims at least might be justiciable, he wrote that "[i]f a State passed an enactment that declared 'All future apportionment shall be drawn so as most to burden Party X's rights to fair and effective representation, though still in accord with one-person, one-vote principles,' we would surely conclude the Constitution had been violated." But why? It can't be because the mere existence of partisan purposes in districting is unconstitutional; that, Kennedy wrote a page later, "describes no constitutional flaw." Nor can it logically be because maximizing partisan advantage necessarily works an unconstitutional amount of partisan disadvantage.
The reason is simply this: political "classifications, though generally permissible," are unconstitutional, or so Kennedy claims at the very beginning of his opinion, if they "were applied in an invidious manner or in a way unrelated to any legitimate legislative objective." The absolute subordination of other "aims of apportionment" to partisanship just is, Kennedy thinks, unlawful. So when Kennedy writes, immediately after he poses his hypothetical, of "the possibility . . . that a legislature might attempt to reach the same result [of maximized partisan advantage" without [an] express directive," and of "a standard [that] might emerge that suitably demonstrates" whether a legislature is making that attempt, what he imagines is a standard that "establishes the [partisan] classification is unrelated to the aims of apportionment and thus is used in an impermissible fashion." And later, when he explains why the plaintiffs' claims in Vieth failed, he says they "[f]ail[ed] to show that the alleged classifications are unrelated to the aims of apportionment."
Kennedy's implicit rejection of some definition of quantitatively excessive partisan advantage as the Holy Grail of partisan-gerrymandering law, in favor of some as-yet unknown test for excessive subordination of apportionment aims to the purpose of creating partisan advantage, gets much more explicit at the end of his opinion. In what can only be described as one of the more confused and confusing passages in his work, he posits that—while mere partisan classifications are permissible—all "gerrymanders" are bad, no matter how quantitatively excessive:
That said, courts must be cautious about adopting a standard that turns on whether the partisan interests in the redistricting process were excessive. Excessiveness is not easily determined. Consider these apportionment schemes: In one State, Party X controls the apportionment process and draws the lines so it captures every congressional seat. In three other States, Party Y controls the apportionment process. It is not so blatant or egregious, but proceeds by a more subtle effort, capturing less than all the seats in each State. Still, the total effect of Party Y's effort is to capture more new seats than Party X captured. Party X's gerrymander was more egregious. Party Y's gerrymander was more subtle. In my view, however, each is culpable.Besides that "Party Y's effort" can't sensibly be aggregated across multiple independent states and their independent legislatures that Party Y controls, a point I would expect Justice Kennedy of all people to understand, the conclusion is nonsense; as described, "Party Y" hasn't done anything "culpable" at all, though it's hard to understand from the hypothetical what exactly "Party Y" did. But read most charitably, which requires reading a great deal into the hypothetical, it seems the idea is that, so long as a legislature's districting "scheme" is a partisan scheme, it doesn't matter how much partisan injury it causes.
4. Why Justice Kennedy hasn't announced an intent standard already.
We know, then, that thirteen years ago Kennedy believed that the absolute subordination of "legitimate" apportionment aims to partisan advantage was unconstitutional, and I think we probably know from his repeatedly asking Murphy whether she agreed that he still thinks it today. What mystified me at first on rereading Vieth, then, is why he didn't settle on a simple intent-based standard for adjudicating partisan-gerrymandering claims long ago. It shouldn't be too hard to find out, as a factual matter, whether the only thing a legislature was interested in when drawing its district maps was partisanship.
Indeed, Justice Kennedy has demanded much harder and quite similar findings of district courts before; in instructing them on how to decide racial-gerrymandering claims, he required them to decide whether "race was the predominant factor" motivating the shape of a particular district, and whether "the legislature subordinated traditional race-neutral districting principles . . . to racial considerations." Deciding whether a legislature's only motive was partisanship, aside from compliance with one-person-one-vote, the Voting Rights Act, and a superficial show of district compactness and internal contiguity, should be much easier than deciding whether a legislature's predominant motive was race, a standard which is widely seen as meaningless (in what sense can motives predominate?), especially given that political gerrymandering is easily mistaken for racial gerrymandering.
The reason, I think, that Kennedy didn't write an opinion like that in Vieth is that he doesn't really have an absolute-subordination standard in mind; rather, he's looking for some purpose-based threshold that's impossible to describe, and certainly can't be described in quantitative terms. An absolute-subordination standard would describe a null set; bracketing compliance with one-person-one-vote and the Voting Rights Act, a districting plan will always attempt to do at least something besides afford the ruling party partisan advantage, whether it's drawing contiguous and compact districts, protecting incumbents, or avoiding splitting at least some municipalities, communities of interest, or political subdivisions. And even if it didn't describe a null set now, absolute subordination would describe a null set in the future given that states could work around it by pursing some tertiary aim to some minute degree.
Absolute subordination also isn't quite what he says he wants a standard to measure; rather, he wants a standard that can "establish[ a partisan] classification is unrelated to the aims of apportionment," that "the alleged classifications are unrelated to the aims of apportionment," that partisan "classifications . . . were applied . . . in a way unrelated to any legitimate legislative objective." The question, oddly, on this formulation isn't whether the legislature did or didn't also serve some legitimate aim of apportionment, but whether the legislature's partisan classifications, taken by themselves, are related to legitimate aims of apportionment. That is, the partisan motive for the partisan classification must be a purely partisan, illegitmate motive, though it can be mixed with other legitimate motives and legitimate non-partisan classifications. For this reason, an attempt to maximize partisan advantage subject to all sorts of traditional districting criteria is still unconstitutional on Kennedy's view, because the partisan motive is, as far as it goes, pure and illegitimate.
Probably needless to say, this can never be an operable test (but see sec. 6 below), as classifying voters on the basis of partisan affiliation is always (or at least can always be described and viewed as) purely partisan and illegitimate. Any districting map that districts on the basis of partisanship at all singlemindedly pursues partisan advantage to the extent it singlemindedly pursues partisan advantage; it may do all sorts of other things, may even be dominated by those other things, but to the extent it classifies some of the voters on the map on a partisan basis, it won't have done so for some legitimate non-partisan reason (absent things like incumbency protection).
So, unless Kennedy thinks that all districting schemes drawn by politicians are invalid, he can't be serious about invalidating any partisan classification that's unrelated to non-partisan aims. Nor could one explain his holding in Vieth if he were serious; is there any doubt that partisanship had been pursued purely for the sake of partisanship to some extent in Vieth? It would seem that what's being groped for here is some sort of predominant-motive test, like his test for racial gerrymandering, but even that isn't quite stringent enough for what Kennedy seems to want.
One of the reasons Kennedy was unable to settle on a predominant-illicit-motive test is that, at least in 2004, he seemed deeply unsure of what the legitimate "aims of apportionment" were. His opinion complains that there isn't "any agreed upon model of fair and effective representation," any "agreed upon substantive principles of fairness in districting," that the parties hadn't shown him "statements of principled, well-accepted rules of fairness that should govern districting," and most oddly, that he had "not been able to discover[] helpful discussions on the principles of fair districting discussed in the annals of parliamentary or legislative bodies." It was "[b]ecause," he wrote at one point, "there are yet no agreed upon substantive principles of fairness in districting" that the Court had "no basis on which to define . . . standards for measuring the particular burden a given partisan classification imposes on representational rights."
Many people naturally read this passage as a request for a model to measure quantitative deviations from some as-yet undiscovered quantitative measure of fairness; that is certainly a possible reading of the opinion, especially given his later hope that "new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on . . . representational rights." But I think it also suggests an uncertainty about what the "legitimate legislative objectives" and permissible "aims of apportionment" even are, and absent some notion of that, even a purpose-based test is hopeless.
Finally, there is no doubt that Kennedy gave political scientists and election lawyers ample reason in Vieth to think he was searching for some quantitative measure of the "burden" on "representational rights." For example, at one point he suggested that gerrymanders would violate the First Amendment just so long as "a State did impose burdens and restrictions on groups or persons by reason of their views," but that, "[o]f course, all this depends first on courts' having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of a party's voters."
Even this, though, is bizarrely non-quantitative; how, if it's true that the mere use of political classifications is constitutional, can it be that the imposition of "a burden" is a per se First Amendment problem no matter the burden's size? And what sort of quantitative standard would measure whether "a burden" exists or not? Yet at least this motivates his answer to his hypothetical; minimizing the political power of one party, to the extent compatible with traditional districting principles and federal law, would certainly count as "a burden" on that party, even if minimization wasn't ultimately that minimal.
5. Finally, why Justice Kennedy is wrong about the invalidity of "maximizing" partisan advantage.
Of all this, I can only say, and must say, that Kennedy's thoughts on partisanship and districting in Vieth were extraordinarily incoherent, and appear to remain so in their most critical respects. If Kennedy wants to hold that partisan intent in any degree invalidates a districting plan, that would be a workable, if implausible, standard (but see note below acknowledging recent contrary scholarship). But the rule or intuition to which he seems powerfully inclined—that though partisan motives are generally permissible, a motive to "maximize" partisan advantage to the extent that can be done while also serving a bunch of other motives, like hewing to traditional districting principles, is invalid—is just nonsense.
For one thing, "maximizing" partisan advantage subject to the pursuit of other restrictive aims can't sensibly be described as maximization, anymore than one can sensibly talk about living a maximally hedonistic life subject to keeping a reasonable diet, avoiding undue risks, obeying the law, and working fifty hours a week. If that's living a maximally hedonistic life, everyone lives a maximally hedonistic life except for all the ways in which they don't, and if a state can "maximize" partisan advantage subject to (a) district compactness, (b) district contiguity, (c) respect for political subdivisions, (d) avoiding one-person, one-vote liability (which doesn't mean going right to the edge of it), and (e) avoiding Voting Rights Act liability (ditto), probably every state controlled by a single party maximizes the partisan advantage of the party in power. For maximizing one aim subject to five others is simply what it means to rationally pursue that aim at all.
For example, suppose that a state with sixty districts has three partisan options that would comply with traditional districting criteria and federal law: a plan that would give the majority party control of 31 seats, a plan that would give the party control of 32 seats, and a plan that would give the party control of 33 seats. Picking the one with 33 safe seats would "maximize" partisan advantage subject to traditional districting criteria, and picking the ones with 31 and 32 safe seats would not, but what rational legislature that cared to pursue partisan advantage at all would pick those plans when the 33-seat plan satisfied every other objective the legislature had? No legislature would do so, anymore than a gourmand on a diet would choose to eat, as between three healthy, appetizing foods, the one that only sounded the second or third most appetizing to that person at that point in time. Any person, gourmand or otherwise, in that situation would pick the most appetizing healthy option. You could call that person a "maximal" hedonist, or you could just call them sane.
Even if "maximizing" partisanship subject to other goals meant anything besides pursuing partisanship in a non-irrational way, it is impossible to explain why such a "maximal" pursuit of partisanship is per se invalid on grounds that don't invalidate non-maximal pursuits of partisanship. "Maximal" pursuits of partisanship can't be invalid because they're necessarily all that partisan or that maximal; traditional districting criteria may, or may not, prevent them from getting that partisan. A theory of First Amendment burdens on representational or associational rights doesn't explain anything either; in what sense is a non-maximal burden not a burden? How, as a matter of First Amendment law, could the Court sensibly hold that only "maximal" burdens on a party's viewpoints were invalid? Obviously that would never fly in any other area—one is tempted to say any real area—of First Amendment law.
All that is left, it would seem, is that maximizing partisanship is a bad motive, but if the Court held this tomorrow, why wouldn't it also follow that it would be bad for the state in my hypothetical to pick the plan with 32 safe seats instead of one with 31, 30, or 0? Why would the theoretical possibility of a more partisan and unlawful 33-safe-seat plan that complied with traditional districting criteria save the state's intentional choice of the most partisan non-maximally partisan plan it could draw? It shouldn't, at least not on whatever theory would per se invalidate the "maximally" partisan plan, anymore than people who condemn living a maximally hedonistic life have grounds to condone people who attempt to skirt moral objections by always opting to behave in the second-most hedonistic way they can think of. I can only say that someone whose central intuition about regulating redistricting is this incoherent has no business regulating redistricting.
6. A note on the partisan-intent theorists
I am aware that a growing chorus of election-law scholars, whose articles are helpfully collected in the last sentence of this post, argue that at least some sort of partisan motive is invalidating, at least when that motive is met with some success. The author of one of these articles, Michael Parsons, has just written an excellent post cheering on Justice Kennedy's interest at argument in invalidating gerrymanders that stated their maximally partisan aims. I would say just two things about their work in relation to Kennedy's feelings about intentions to maximize partisan advantage.
The first is that it certainly doesn't explain a rule against "maximally" pursuing partisan advantage (or maximally pursuing partisan advantage). Partisan-intent theorists might think such a rule is better than nothing, as it captures a subset of what they're worried about, but it makes no more sense on their lights than permitting the non-maximal pursuit of racial subordination would.
The second thing I would say is that I don't see this as a standard that Justice Kennedy is willing to accept. At least some of the intent theorists' articles argue that not all partisan intent is bad, just partisan intent to subordinate the minority party, or "tribal partisanship." This is intended both to palliate concerns that their rule would invalidate all partisan districting, and to get around the objection that the Court in general and Justice Kennedy have repeatedly said that some partisanship is alright. I guess I don't understand, though, how subordinating the minority party (which is just a pejorative way of talking about favoring the majority party) is a practically lesser subset of partisan redistricting purposes or partisan classifications; what other sorts of partisan purposes or classifications are there?
When some of the intent theorists argue that when Justice Kennedy writes that partisan classifications aren't per se impermissible, all he means is that states may seek to promote proportionality or perhaps incumbency advantage by way of districting for partisan balance, I have a tough time following them. It's true that Kennedy's repeated citation for the proposition that partisan classifications are okay by themselves is an early case that upheld a bi-partisan gerrymander that sought to achieve a rough measure of proportionality. But it strikes me that if Kennedy thought that pursuing partisan advantage to any degree and with any success was per se unconstitutional, he would have adopted a very simple intent test a long time ago. It wouldn't be too difficult for district courts to decide whether states pursued partisan advantage in part in drawing their districting plans; Kennedy has asked district courts to decide the much harder question of whether race predominated over other districting aims. And I don't understand why Kennedy would keep returning to the theme of maximizing partisan advantage, or the pursuit of partisanship in a fashion that's unrelated to any legitimate aim, if he were actually interested in setting aside districting schemes motivated by any hopes of achieving partisan advantage.
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