Kennedy’s Vote Is in Play on Voting Maps Warped by Politics Image People including Bill Millhouser protesting gerrymandering outside the Supreme Court on Tuesday. The court was hearing a case based on voting district maps in Wisconsin. Credit Tom Brenner/The New York Times 
 
 WASHINGTON — Justice Anthony M. Kennedy has long been troubled by extreme partisan gerrymandering, where the party in power draws voting districts to give itself a lopsided advantage in elections. But he has never found a satisfactory way to determine when voting maps are so warped by politics that they cross a constitutional line. 
 
 After spirited Supreme Court arguments on Tuesday, there was reason to think Justice Kennedy may be ready to join the court’s more liberal members in a groundbreaking decision that could reshape American democracy by letting courts determine when lawmakers have gone too far. 
 
 Justice Kennedy asked skeptical questions of lawyers defending a Wisconsin legislative map that gave Republicans many more seats in the State Assembly than their statewide vote tallies would have predicted. He asked no questions of the lawyer representing the Democratic voters challenging the map. 
 
 There was something like consensus among the justices that voting maps drawn by politicians to give advantage to their parties are an unattractive feature of American democracy. But the justices appeared split about whether the court could find a standard for determining when the practice was unconstitutional. 
 
 “Gerrymandering is distasteful,” said Justice Samuel A. Alito Jr., “but if we are going to impose a standard on the courts, it has to be something that’s manageable.” 
 
 Some of the court’s more liberal members said the problem represented a crisis for democracy and that the Supreme Court should step in. 
 
 “What’s really behind all of this?” Justice Ruth Bader Ginsburg asked. She answered her own question: “The precious right to vote.” 
 
 In extended remarks, Chief Justice John G. Roberts Jr. expressed worry that the court’s authority and legitimacy would be hurt were it to start striking down voting districts in favor of one political party or another. 
 
 “That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country,” he said. 
 
 Paul M. Smith, a lawyer for the Democratic voters, urged the court to act. “You are the only institution in the United States that can solve this problem just as democracy is about to get worse because of the way gerrymandering is getting so much worse,” he told the justices. 
 
 Without the Supreme Court’s intervention, Mr. Smith said, other states will follow Wisconsin’s lead. The round of redistricting that will follow the 2020 census, he said, “will produce a festival of copycat gerrymandering the likes of which this country has never seen.” 
 
 The Supreme Court has never struck down an election map on the ground that it was drawn to make sure one political party wins an outsize number of seats. The court has, however, left open the possibility that some kinds of political gamesmanship in redistricting may be too extreme. 
 
 The problem, Justice Kennedy wrote in a 2004 concurrence, is that no one has devised “a workable standard” to decide when the political gerrymandering has crossed a constitutional line. 
 
 On Tuesday, he pressed Erin E. Murphy, a lawyer for Wisconsin lawmakers, about whether a state law could require drawing districts to have the maximum number of votes for a given political party. Other justices followed up on the point, and Ms. Murphy gave equivocal answers. 
 
 Justice Kennedy grew frustrated. “I have to say that I don’t think you ever answered the question,” he said. 
 
 Justice Sonia Sotomayor asked Ms. Murphy more fundamental questions. 
 
 “Could you tell me what the value is to democracy from political gerrymandering?” Justice Sotomayor asked. “How does that help our system of government?” 
 
 Ms. Murphy said that gerrymandering “produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.” 
 
 That did not seem a sufficient reason, Justice Sotomayor said, “to stack the decks.” 
 
 Much of the argument concerned various statistical tests for identifying extreme gerrymandering. Misha Tseytlin, Wisconsin’s solicitor general, said the challengers were relying on flimsy and hypothetical social science evidence. 
 
 Image Arnold Schwarzenegger, a Republican and the former governor of California, says districts should be drawn by independent commissions rather than politicians. Credit Tom Brenner/The New York Times 
 
 “Plaintiffs are asking this court to launch a redistricting revolution based upon their social science metrics,” he said. 
 
 Chief Justice Roberts told Mr. Smith that courts are poorly equipped to evaluate social science data. “It may be simply my educational background,” the chief justice said of the studies before the court, “but I can only describe it as sociological gobbledygook.” 
 
 Other justices seemed more comfortable with the studies. 
 
 “This is not kind of hypothetical, airy-fairy, we guess, and then we guess again,” Justice Elena Kagan said. “I mean, this is pretty scientific by this point.” 
 
 Justice Sotomayor said that “every single social science metric points in the same direction.” 
 
 There may be close cases, Justice Kagan said, but this was not one of them. “This map goes pretty much over every line,” she said. 
 
 Justice Stephen G. Breyer, in remarks that may have been aimed at Justice Kennedy, sketched out a series of criteria that he said amounted to a workable standard. He said courts should act only when there is one-party control of the state government and a map that creates a persistent and unjustified partisan advantage that is “an extreme outlier” when compared to other maps. 
 
 “I suspect that that’s manageable,” Justice Breyer said. 
 
 The case, Gill v. Whitford, No. 16-1161, started when Republicans gained complete control of Wisconsin’s government in 2010 for the first time at the beginning of a redistricting cycle in more than 40 years. Lawmakers promptly drew a map for the State Assembly that helped Republicans convert very close statewide vote totals into lopsided legislative majorities. 
 
 In 2012, after the redistricting, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. 
 
 Democratic voters sued, saying the maps violated the Constitution. “This is one of the most extreme gerrymanders ever drawn in living memory of the United States,” Mr. Smith said on Tuesday. 
 
 The case is part of a larger debate over politics in redistricting, one that has taken on new urgency with the advent of sophisticated software. Both parties have engaged in partisan gerrymandering, but these days, Republicans have an advantage following a wave of victories in state legislatures that allowed lawmakers to draw election maps favoring their party. 
 
 Some critics, like Arnold Schwarzenegger, a Republican and the former governor of California, say districts should be drawn by independent commissions rather than politicians. Prominent Democrats, including former President Barack Obama and his first attorney general, Eric H. Holder Jr., are pushing to undo the redistricting gains Republicans made after the 2010 census when the next census is taken three years from now. 
 
 Outside the court during the arguments, several dozen activists rallied with signs that read “Equal Districts Under Law” and “Hands off our Districts!” 
 
 Mr. Schwarzenegger, who attended the argument, said afterward that he is hopeful that the justices will put a stop to partisan gerrymandering. 
 
 “We are here today to ask the Supreme Court to fix something that the politicians will never do,” he said. “As Einstein said, those who created the problem will not be able to solve it.” 
 
 Last year, a divided three-judge Federal District Court panel ruled that Republicans in Wisconsin had gone too far. The map, Judge Kenneth F. Ripple wrote for the majority, “was designed to make it more difficult for Democrats, compared to Republicans, to translate their votes into seats.” 
 
 The decision was the first from a federal court in more than 30 years to reject a voting map as partisan gerrymandering. 
 
 Wisconsin officials say that the lopsided representation of Republicans in the State Legislature is a product of geography rather than gerrymandering. Democrats have packed themselves into cities, effectively diluting their voting power, while Republicans are more evenly distributed across most states, the brief said. 
 
 Judge Ripple acknowledged that the distribution of the population explains at least some part of the gap. 
 
 “Wisconsin’s political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican Party a natural, but modest, advantage in the districting process,” he wrote. 
 
 But he added that partisan gerrymandering amplified that advantage. 
 
 Sign Up for the Morning Briefing Get what you need to know to start your day in the United States, Canada and the Americas, delivered to your inbox. SEE SAMPLE Please verify you’re not a robot by clicking the box. Invalid email address. Please re-enter. You must select a newsletter to subscribe to. * Required field You agree to receive occasional updates and special offers for The New York Times products and services. * Required field Thank you for subscribing. View all New York Times newsletters. An error has occurred. Please try again later. You are already subscribed to this email. View all New York Times newsletters. Sign Up ||||| CLOSE Wisconsin’s redistricting case isn’t just about Wisconsin. If the group of Democrats suing the Badger State are successful, every state will have to follow new rules when they draw congressional and legislative maps. Milwaukee Journal Sentinel 
 
 The U.S. Supreme Court building. (Photo: J. Scott Applewhite) 
 
 WASHINGTON - U.S. Supreme Court justices showed deep divisions Tuesday over a gerrymandering case from Wisconsin that could have far-reaching national implications. 
 
 Liberal justices expressed openness to the idea that courts should intervene when lawmakers draw election maps that greatly favor their party. Conservatives were skeptical that judges could come up with a way to determine whether and when legislators had gone too far. 
 
 In the middle of it all — as expected — was Justice Anthony Kennedy. Both sides see him as the one who will likely cast the deciding vote and they pitched their arguments to him. 
 
 A three-judge panel last year ruled 2-1 that maps for the Wisconsin Assembly were so heavily Republican that they violated the constitutional rights of Democratic voters. Now, the Supreme Court must decide whether the lower court got the ruling right. 
 
 Justice Ruth Bader Ginsburg questioned what would happen to the "precious right to vote" with maps like Wisconsin's that lock in a majority for one party. 
 
 "If you can stack a legislature in this way, what incentive is there for a voter to exercise his vote?" she asked. "Whether it's a Democratic district or a Republican district, the result — using this map, the result is preordained in most of the districts." 
 
 I never ask for God to choose sides but with the eroding of our democracy I pray God's will includes #fairMaps! This is for all the marbles! https://t.co/S21Y2rVnmt — Vice Chair,Rep Bowen (@DavidFBowen) October 2, 2017 
 
 RELATED: Redistricting case could ripple beyond Wisconsin 
 
 RELATED: Federal court strikes down GOP-drawn maps 
 
 RELATED: Court to Wisconsin Republicans: Redraw election maps 
 
 Chief Justice John Roberts countered that legislatures have long been the ones in most states to determine where political lines are drawn. 
 
 “The whole point is you’re taking these issues away from democracy and you're throwing them into the courts," he told the attorney for the group of Wisconsin voters who brought the case. 
 
 If they succeed, the nation's high court will have to decide in case after case whether to toss out maps favoring one party over the other, he said. And the public will suspect the court's rulings are based on partisanship, he warned. 
 
 “That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country," he said. 
 
 The stakes are high for Wisconsin's Democrats, who have been out of power for seven years. The case represents one of their last shots — if not their very last shot — of gaining a foothold in the Legislature in the foreseeable future. 
 
 But the case could also have a broad national impact. If Wisconsin's maps are thrown out, states will have to follow new rules when they draw congressional and legislative districts, limiting their abilities to give edges to either party. 
 
 The packed gallery included Arnold Schwarzenegger, the Republican former governor of California who has championed redistricting reform, and Wisconsin Senate Majority Leader Scott Fitzgerald (R-Juneau), one of the top leaders to sign off on the GOP-friendly maps. 
 
 The Supreme Court has long wrestled with the question of whether maps can be so one-sided as to violate the Constitution. 
 
 Both sides focused their arguments on Kennedy, who has written that overly partisan maps can violate the Constitution but that courts have never had a way to measure when that happens. 
 
 He asked Erin Murphy, an attorney for the Wisconsin Legislature, whether it would violate the Constitution for a state to pass a law that required lawmakers to draw maps that gave maximum advantage to one side (while still complying with traditional redistricting principles). 
 
 “I’d like the answer to the question," Kennedy said. 
 
 Murphy said such a law would violate the Constitution, but emphasized that no such law was in effect in this case. 
 
 Wisconsin Solicitor General Misha Tseytlin — a former Kennedy clerk — argued Wisconsin's maps are constitutionally sound and contended a victory by the Democrats would prompt a slew of litigation across the country. 
 
 He told the justices the plaintiffs hope to "launch a redistricting revolution" that would force maps around the country to be redrawn. 
 
 "I would expect that almost every single map drawn by a legislature will be challenged immediately if plaintiffs prevail," he said by email before Tuesday's arguments. 
 
 Those bringing the case disputed that, saying litigation could advance only in states with the most extreme maps. 
 
 Paul Smith of the Campaign Legal Center argued the case on behalf of the Democratic voters from Wisconsin. He told the court it was the "only institution" in America that could prevent lawmakers from drawing maps that helped themselves at the expense of voters. 
 
 “Politicians are never going to fix gerrymandering," he said. "They like gerrymandering.” 
 
 The map for the Wisconsin Assembly, he said, "is so extreme that it effectively nullifies democracy." 
 
 The center, based in Washington, D.C., hopes to curb partisan gerrymandering by both sides. Some Republicans — including Schwarzenegger, U.S. Sen. John McCain of Arizona and Ohio Gov. John Kasich — are siding with the Wisconsin Democrats. 
 
 ”I say it is time to say hasta la vista to gerrymandering and it is time to terminate gerrymandering," Schwarzenegger said on the plaza outside the court. 
 
 Every 10 years, states must draw new election maps to account for population shifts. In Wisconsin and most other states, politicians get to draw those lines. 
 
 Republicans took full control of Wisconsin's government in the 2010 elections and used their power to draw maps that greatly favor them. 
 
 Democratic voters sued in 2015, arguing their voting rights had been violated, and the panel of judges sided with them last year. (Unlike other types of cases, redistricting lawsuits are first heard by a panel of three judges and then go directly to the Supreme Court.) 
 
 ARCHIVE: Democrats sue state election officials over 2011 redistricting 
 
 The Supreme Court is expected to rule by summer. 
 
 Wisconsin is often closely divided, but that doesn't reveal itself in legislative races. 
 
 In 2012 — a year when Democratic President Barack Obama handily won Wisconsin — Democrats received nearly 52% of the vote in Assembly races, yet took just 39 of the chamber’s 99 seats. 
 
 In last year's election, Republican Donald Trump topped Democrat Hillary Clinton by the slimmest of margins in the presidential race, but the Republicans laid claim to a 64-35 majority in the Assembly. 
 
 The Democratic voters who brought the lawsuit contend both sides should have an equal chance to capture the same number of seats. If one side can get 60 seats with 52% of the vote, the other should be able to do the same thing, Smith argued. 
 
 They proposed a new test to determine whether maps were unfairly one-sided. It counts “wasted votes” — that is, any votes beyond those needed to elect a candidate — to determine the “efficiency gap” of a map. 
 
 Maps have large efficiency gaps when they spread one party’s voters into districts in a way that creates a significant number of wasted votes for them. 
 
 Justice Samuel Alito questioned whether courts should adopt a relatively new social science theory rather than waiting for more scholarship. Justice Neil Gorsuch said he was worried new rules would be so vague that states wouldn't know what they were allowed to do. 
 
 Roberts called the plaintiffs' test “sociological gobbledygook.” 
 
 Justice Stephen Breyer said the social science measurements may be gobbledygook, but the idea of fairness is not and there are efficient ways for courts to determine what's fair. 
 
 Justice Elena Kagan said courts should be able to determine if maps are fair by using the same tools lawmakers use to draw maps. Computer programs allow lawmakers to put in place maps they can count on to keep them in power. 
 
 “When legislatures think about drawing these maps, they’re not only thinking about the next election, they're thinking often — not always — but often about the election after that and the election after that and the election after that," she said. 
 
 Read or Share this story: https://jsonl.in/2kj7VMp ||||| CLOSE The Supreme Court just made a ruling that could be a game changer for the 2018 election. Ryan Sartor (@ryansartor) has that story. Buzz60 
 
 The U.S. Supreme Court is reviewing stays of executions for two Arkansas inmates scheduled to die on April 24, 2017. (Photo: Win McNamee, Getty Images) 
 
 WASHINGTON — The Supreme Court ruled Monday that racial considerations pervaded the way North Carolina lawmakers drew congressional maps after the 2010 Census in order to maximize Republicans' advantage. 
 
 The 5-3 ruling, written by Justice Elena Kagan, was the latest in a series of decisions by the justices against the excessive use of race in redistricting, the decennial process of drawing new district lines for Congress and state legislatures. Justice Clarence Thomas joined the court's four liberal justices in striking down the state's maps. 
 
 The high court in March demanded additional lower court review of 11 Virginia state legislature districts that Republicans designed with at least 55% black voting-age populations. That followed a decision against Alabama's state legislative districts in 2015. 
 
 The North Carolina ruling upheld a federal district court decision that struck down the state's 1st and 12th congressional districts because state lawmakers had packed African American voters into them, thereby minimizing the influence of black voters in other districts. Kagan said the 1st district "produced boundaries amplifying divisions between blacks and whites," while in the 12th, "race, not politics, accounted for the district's reconfiguration." 
 
 Justice Samuel Alito dissented on the 12th district, joined by Chief Justice John Roberts and Justice Anthony Kennedy. They agreed with state officials that the district was drawn to help Republicans, not to disenfranchise black voters. The high court has never struck down political maps drawn to help one party, though a case from Wisconsin is likely to offer a new test next year. 
 
 "Partisan gerrymandering is always unsavory, but that is not the issue here," Alito wrote. "So long as the legislature chose to retain the basic shape of District 12 and to increase the number of Democrats in the district, it was inevitable that the Democrats brought in would be disproportionately black." 
 
 Alito also criticized the majority decision for failing to stand by a 2001 case in which the high court upheld a similar configuration for that district. "A precedent of this court should not be treated like a disposable household item — say, a paper plate or napkin — to be used once and then tossed in the trash," he said. 
 
 The Voting Rights Act of 1965 requires that states draw districts enabling African Americans to elect their chosen representatives, lest black voters be spread too thinly across district lines. Two decades ago, Democrats used the law to demand so-called "majority-minority" districts. 
 
 Since Republicans took over many state legislatures in 2010, they have drawn districts with what African American and Democratic critics claim are more blacks than necessary, in order to keep surrounding districts whiter — and more Republican. But the Supreme Court has knocked down several of those maps. 
 
 “This is a watershed moment in the fight to end racial gerrymandering,” said Eric Holder, the former Democratic attorney general now chairing the National Democratic Redistricting Committee. “Today’s ruling sends a stark message to legislatures and governors around the country: Racial gerrymandering is illegal and will be struck down in a court of law.” 
 
 But Hans von Spakovsky of the conservative Heritage Foundation said the ruling compounds "the confused state of the law." 
 
 "The Supreme Court says race can be a factor in redistricting but not the predominant factor, a rule that is so vague, so broad, and so lacking in a definable legal standard that it is not really a rule at all,” he said. 
 
 
 
 The North Carolina case involved two congressional districts that had come before the Supreme Court several times before; it was the fifth time for District 12, drawn in snakelike fashion along Interstate 85 after the 1990 Census to create a district capable of electing black lawmakers. Kagan noted that the latest district lines added "a couple of knobs" and some 35,000 black voters, even though it has elected African Americans since 1992. 
 
 Those changes helped change the state's congressional delegation from 7-6 Democratic in 2010 to 10-3 Republican in 2016 -- a trend that Alito said resulted from "a coherent (and generally successful) political strategy." 
 
 Even as the justices debated the North Carolina and Virginia maps in December, another case from Wisconsin was moving their way that could give them a chance to rule on partisan, rather than racial, gerrymandering. To date, the court has not defined how much political advantage is too much. 
 
 Read more: 
 
 Read or Share this story: https://usat.ly/2rKxSTO
– Justice Anthony Kennedy may end up casting the deciding vote in one of the Supreme Court's biggest cases this term—and he appears to be leaning toward joining the court's more liberal justices when it comes to reining in gerrymandering. The court heard arguments Tuesday in a redistricting case from Wisconsin, where Democrats say Republicans created districts so lopsided that they violated voters' constitutional rights. Kennedy, a Reagan appointee, seemed skeptical of the arguments made by lawyers defending the Wisconsin voting map and didn't ask any questions at all of the lawyer representing the Democratic voters, which "would seem to bode well for the challengers," SCOTUSBlog notes. Justices including Ruth Bader Ginsburg said it was time for the Supreme Court to step in and stop partisan gerrymandering, though Chief Justice John Roberts said he worried that the court itself would be seen as partisan if it started striking down voting districts, the New York Times reports. That would "cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country," he said. Republicans including Arnold Schwarzenegger and Sen. John McCain are siding with Democrats on the issue. "It is time to say hasta la vista to gerrymandering and it is time to terminate gerrymandering," Schwarzenegger said outside the court, per the Milwaukee Journal Sentinel.