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 ||||| Today may have been only the second day of the Supreme Court’s new term, but it may also prove to be one of the biggest. The justices heard oral argument in Gill v. Whitford, a challenge to the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. A federal court struck down the plan last year, agreeing with the plaintiffs that it violated the Constitution because it was the product of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. After roughly an hour of oral argument this morning, the justices seemed to agree that partisan gerrymandering is, as Justice Samuel Alito acknowledged, “distasteful.” But there was no apparent agreement about whether courts could or should get involved in policing the practice. 
 
 The case arose after Republicans won majorities in both houses of the Wisconsin legislature and captured the governor’s office, giving them control over the maps that were drawn after the 2010 census. In the 2012 elections, Republicans won slightly less than half of the statewide vote, which translated into 60 seats in the state’s 99-seat assembly; by contrast, Democrats won just over half of the statewide vote but garnered only 39 seats. Two years later, Republicans won 52% of the vote and 63 seats, while Democrats won approximately 48% of the vote and 36 seats. 
 
 A group of challengers argued that the new redistricting plan amounted to an unconstitutional partisan gerrymander. They contended that the new plan sought to dilute Democratic votes across the state, using two methods: “cracking,” which divides up supporters of one party among different districts so that they do not form a majority in any of them; and “packing,” which puts large numbers of a party’s supporters in relatively few districts, where they win by large margins. 
 
 The dispute went to a divided three-judge district court, which Congress has designated as the forum for redistricting challenges. That court regarded the case as an easy one. Although it may sometimes be difficult to tell when politics plays too influential a role in redistricting, the lower court conceded, this case is “far more straightforward”: The Republican-controlled legislature drafted a redistricting plan to lock in the party’s control of the state legislature, even though it could have created a different plan that would have accomplished redistricting goals without giving Republicans such a partisan advantage. 
 
 The district court may have regarded the case as a “straightforward” one, but few justices seemed to share that sentiment today. That’s not particularly surprising, because the issue of partisan gerrymandering has deeply divided the Supreme Court in the past. Thirteen years ago, the justices rejected a challenge to Pennsylvania’s redistricting plan, with four justices agreeing that courts should decline to review partisan-gerrymandering claims, because it is too hard to come up with a manageable test to determine when politics plays too influential a role in redistricting. Four other justices would have allowed courts to review partisan-gerrymandering claims. That left Justice Anthony Kennedy, who agreed that the Supreme Court should stay out of the Pennsylvania case but suggested that courts could play a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found. 
 
 Before the justices got to the merits of the case this morning, they tackled another question: whether the plaintiffs have a legal right – known as “standing” – to challenge the 2010 map at all, particularly because some of them live in heavily Democratic districts. Kennedy (whom many regard as the key vote in the case) acknowledged that the plaintiffs could not point to a specific Supreme Court case in their favor, but he asked Wisconsin Solicitor General Misha Tseytlin whether the plaintiffs might have standing if their claims were grounded in the First Amendment, rather than a right to equal protection of the laws. Kennedy seemed to suggest that they would, telling Tseytlin that such plaintiffs would have a First Amendment interest in having their preferred political party be strong, rather than weak. 
 
 Chief Justice John Roberts seemed to disagree. He told attorney Paul Smith, who argued on behalf of the plaintiffs challenging the map, that allowing plaintiffs in a partisan-gerrymandering case to challenge an entire map seemed inconsistent with the court’s rule that plaintiffs in racial-gerrymandering cases can only challenge their own districts, not the whole map. 
 
 Smith countered that the two scenarios are different: In racial-gerrymandering cases, he argued, the claim does attack a specific district; by contrast, a plaintiff in a partisan-gerrymandering claim is challenging the dilution of one party’s votes statewide. 
 
 If five justices were to agree that the plaintiffs lack standing to challenge the whole map, it would allow them to avoid ruling on the merits of the case. But it does not look as though there are five votes for that outcome – especially if, as Kennedy’s comment suggests, he would allow the lawsuit to go forward. And so most of the one-hour argument today was spent on the substance of the case, and in particular on two closely related questions: Should the courts get involved in reviewing partisan-gerrymandering cases at all; and, if so, what standard should they use to review such claims? 
 
 Roberts made clear that, in his view, the Supreme Court should stay out – for the good of its institutional reputation. He told Smith that if the plaintiffs win, the courts would be flooded with partisan-gerrymandering claims, which would all wind up at the Supreme Court because, unlike in most cases, in which the court can choose which cases to review, the court is generally required to review redistricting challenges. For example, if the Supreme Court rules for the Democrats in a case, Roberts continued, most people will not understand that the decision rests on a complicated calculus. Instead, Roberts posited, the average person will say, “That’s a bunch of baloney,” and chalk the ruling up to a preference for the Democrats. And that, Roberts stressed, will cause very serious harm to the status and perceived integrity of the Supreme Court. 
 
 Smith pushed back, predicting that any potential harm to the Supreme Court’s reputation would pale in comparison with the harm to democracy if the state prevails. Partisan gerrymandering is already bad, he cautioned, but we are on the “cusp of a more serious problem” because officials drawing redistricting maps now have access to vast amounts of data, and because the electorate is now so polarized that voting has become more predictable than ever. If you uphold the Wisconsin map, he told Roberts ominously, the court will be confronted with a “festival of copycat gerrymandering,” and people will lose faith in democracy altogether. 
 
 Roberts was unconvinced, telling Smith that his rule would take democracy away from the legislatures based on social science “gobbledygook.” The court’s newest justice, Neil Gorsuch, was relatively quiet, but he appeared to show his cards when he asked Smith to name the source of the Supreme Court’s authority to revise state redistricting maps. The court should be cautious, Gorsuch emphasized, about stepping in here. 
 
 The plaintiffs seemed to find a more receptive audience in Justice Ruth Bader Ginsburg, who told Erin Murphy – arguing on behalf of the Wisconsin legislature – that the “precious right to vote” is at the heart of this case. If legislators can “stack” a legislature, so that the result of the election is “preordained,” she queried, where is the incentive for voters to actually go to the polls? “Society should be concerned,” Ginsburg concluded. 
 
 Justice Sonia Sotomayor voiced similar concerns. She asked Murphy whether it was okay for one party to “stack the decks, so that for 10 years,” it could garner a minority of the vote but still win a majority of the seats in the legislature. 
 
 But although the justices spent some time at the 50,000-feet level, contemplating the broader implications of their ruling, much of their time was spent in the weeds, on what Justice Stephen Breyer described as another “hard issue” in the case: If courts are going to get involved with partisan-gerrymandering cases, what are manageable standards that they can apply to evaluate the claims? Breyer offered Tseytlin a five-part test that looked at, among other things, whether one party controls the legislature and the redistricting process; whether the redistricting maps create “partisan asymmetry” – that is, they do not treat the different political parties equally; and whether that asymmetry is “persistent” and extreme. “I suspect,” Breyer told Tseytlin, that the test is manageable. 
 
 Justice Elena Kagan seemed to agree. She observed that, if the technology now available to legislators is so good that legislators can draw the maps easily, the same techniques can be used on the back end to evaluate what the legislature was considering when it was drawing the maps. This is not “airy fairy,” she stressed, but instead “pretty scientific.” 
 
 Not surprisingly, Tseytlin disagreed. He maintained that the Supreme Court had already rejected some of these kinds of inquiries in its earlier cases. And he repeated a theme that would resurface throughout the hour: Any “standards” that the court might articulate to evaluate partisan-gerrymandering claims would rely heavily on statistics and battles between each side’s experts. 
 
 Murphy picked up this theme, reminding the justices that the kinds of standards that the plaintiffs have proposed have identified “false positives” – districts that appear to be the result of gerrymandering but are not – 50% of the time. What, she asked rhetorically, are legislatures supposed to do when confronted with problems like these? 
 
 Justice Samuel Alito was also skeptical. He told Smith that, although everyone has been looking for a manageable standard, one of the theories on which the plaintiffs relied – known as the “efficiency gap,” which looks at the number of votes “wasted” in each election, either because they are cast for the losing candidate or because the victorious candidate did not need them to win – was not developed until very recently. “Is this the time for us to jump into this,” Alito asked, when there are still so many questions about the theory? 
 
 Although it was obvious that, for Alito, the answer was “no,” for Smith the answer was “yes.” In the 2004 redistricting case, the court provided a blueprint for future partisan-gerrymandering challengers: They would need to give the court manageable standards to evaluate their claims. And that is exactly what social scientists have done, Smith argued. In this case, the district court used three different social-science standards and concluded that the 2010 Wisconsin map was, for purposes of partisan gerrymandering, one of the worst maps ever. 
 
 Kagan seemed to be on board with Breyer’s standard, but looked for reassurance that the courts would not be inundated with challenges to other redistricting maps in the future. Smith suggested a variety of measures that seemed to placate Kagan, but not Roberts, who complained that the kind of statistics-based predictions that Smith’s measures would call for had “been a very hazardous exercise” for the court in the past. Alito also complained about the “dozens of uncertainties” in the process that Smith was proposing. 
 
 Perhaps notably, Kennedy did not ask Smith any questions at all during Smith’s 30 minutes at the lectern – which, although there’s no way to know, would seem to bode well for the challengers. Smith seemed to direct his closing remarks straight at Kennedy, as he told the justices that if they do not act now, it could be too late. We’ll know by the end of June whether and how the court will act. 
 
 This post was originally published at Howe on the Court. 
 
 Recommended Citation: Amy Howe, Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case?, SCOTUSblog (Oct. 3, 2017, 2:13 PM), http://www.scotusblog.com/2017/10/argument-analysis-cautious-optimism-challengers-wisconsin-redistricting-case/
– 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.