Kennedy’s Retirement Could Threaten Efforts to End Partisan Gerrymandering

The war against partisan gerrymanders seemed poised for victory. Then Justice Anthony M. Kennedy retired.

WASHINGTON — For 14 years, as partisan gerrymanders across the country grew more extreme, Justice Anthony M. Kennedy came to symbolize hopes that the Supreme Court would eventually rein them in.

His retirement this week did not merely dampen those hopes. Experts said it also presented a potentially crippling threat to growing efforts by voting rights advocates and Democrats to halt gerrymanders by legal and political means.

Justice Kennedy was widely seen as the swing vote on gerrymandering in a court divided between liberals, who see the practice as unconstitutional, and conservatives, who regard it as a political problem, not a legal one. Indeed, he single-handedly preserved it as a judicial question, in a 2004 case involving Pennsylvania’s Legislature, when he declined to join four other justices who declared that it is impossible to determine when a political map becomes unacceptably partisan.

“That no such standard has emerged in this case,” he wrote then, “should not be taken to prove that none will emerge in the future.”

Justice Kennedy had three opportunities in the court’s last term to join liberals in setting such a standard — in cases involving Maryland, North Carolina and Wisconsin — but passed on each. With his departure, lawyers and legal scholars say, Chief Justice John Roberts becomes the most likely justice to cast a fifth vote against partisan gerrymanders.

But that likelihood, some said, is quite small. In hearing gerrymander challenges during the last term, Justice Roberts worried aloud about enmeshing the court in political matters.

“There’s a chance. It’s not zero,” said Nicholas Stephanopoulos, a University of Chicago law professor who has helped lead a lawsuit challenging the makeup of the Wisconsin State Assembly. “But I think our odds plummeted as a result of Kennedy’s retirement.”

Some others were more sanguine, noting that Justice Roberts left the door open to other challenges in a recent opinion that returned the Wisconsin case to a lower court on technical grounds. The court usually dismisses cases with such technical defects, Justice Roberts wrote, but “this is not the usual case.”

“He’s not going to be taken down this road unless a case is perfectly and properly presented,” said Edward B. Foley, an election-law scholar at Ohio State University’s Moritz School of Law. “But it is very significant that he did not foreclose the road at all.”

Voting-rights advocates and Democrats, who have been disadvantaged the most by gerrymanders in recent years, say they will continue the fight by other means. The National Democratic Redistricting Committee, led by former President Barack Obama and his attorney general, Eric H. Holder Jr., has targeted state-level political offices in a dozen states this year, aiming to increase Democratic control of statehouses before the next round of redistricting in 2021. The group has also joined lawsuits claiming racial gerrymanders of House districts in Alabama, Georgia and Louisiana, and is mounting grass-roots efforts to enact electoral reforms.

The group and its affiliates have raised $29 million since its start in January 2017. “This is losing a battle. It’s not losing the war,” the group’s executive director, Kelly Ward, said. “There are a lot of fronts in this war, and we intend to fight on all of them.”

Yet one of the most promising anti-gerrymander efforts may also be among the most imperiled. Ballot initiatives to reduce or eliminate political control over redistricting will come before voters in at least four states in November, and possibly as many as six. Six other states already have independent redistricting bodies; citizen support for new commissions appears in some states to be strong.

But the justices have been divided on whether such measures are constitutional. Here too, Justice Kennedy’s retirement may prove to be pivotal.

In 2015, the Supreme Court rejected a claim by Arizona’s Republican-led Legislature that the Constitution gave it sole authority over redistricting, and that a ballot initiative that shifted the task to a nonpartisan citizens commission was illegal. Justice Kennedy joined the court’s four liberals in the 5-4 ruling. Chief Justice Roberts wrote the dissent for the court’s conservative wing.

“That case really got Justice Roberts exercised,” said Richard L. Hasen, a law professor and election-law expert at the University of California-Irvine. “It was one of the more forceful dissents he has written.” In a court where hard-line conservatives are dominant, he and others said, the constitutionality of citizen redistricting commissions might well get a second and less favorable look.

The next legal challenge to partisan gerrymanders likely will come next year from North Carolina, where a three-judge panel ruled in January that the state’s 13 House districts were an unconstitutional partisan gerrymander

For voting-rights advocates, there is no better case to take to the Supreme Court: North Carolina’s Republican-dominated legislature boasted openly that it had drawn the districts to achieve the maximum partisan advantage over Democrats. The plaintiffs’ case has none of the technical problems that hamstrung the Wisconsin and Maryland challenges this year. And its legal theory — that the Republicans violated Democrats’ First Amendment right to freedom of association by gutting their power at the ballot box — is more straightforward than arguments in other challenges.

How the court decides the North Carolina lawsuit could determine whether elections for decades to come are reasonably fair fights, or waged on maps that past justices have called an affront to democracy.

“North Carolina is the most brazen of all the gerrymanders,” Professor Hasen said. “If that goes, then anything goes.”

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