August 19, 2015
On August 18, Wisconsin Attorney General Brad Schimel filed a motion to dismiss a lawsuit by 12 plaintiffs who alleged that the Republican redistricting plan of 2012 violated their First Amendment rights to freely associate and their Fourteenth Amendment rights to equal protection under the law.
The plaintiffs charged that the redistricting plan was “one of the worst partisan gerrymanders in modern American history.” It “allowed Republican candidates to win 60 of the Assembly’s 99 seats even though Democratic candidates won a majority of the statewide Assembly vote. The evidence is overwhelming that the current plan was adopted to achieve precisely that result.”
In his 30-page filing with the U.S. district court, Schimel essentially said that it’s all but impossible for such suits to prevail. As he put it, they cannot “untie the Gordian Knot of political gerrymandering cases.” One reason such cases are “unsolvable,” he argued, is that there is no standard that is “judicially discernible” or “manageable.”
But it was just such an objective, discernible, and manageable standard that the plaintiffs in this case are proposing. They offer a mathematical way to measure gerrymandering.
The terms “judicially discernible” or “manageable” come from the 2004 U.S. Supreme Court case Vieth v. Jubelirer, where a deeply divided court threw out a challenge to Indiana’s redistricting.
Justice Anthony Kennedy was the decisive vote, but he took pains to distance himself from the other four conservative justices, who claimed that intervening in political redistricting was beyond their purview.
“I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases,” Kennedy wrote. “If workable standards do emerge to measure these burdens, however, courts should be prepared to order relief.”
Kennedy also foresaw the strength of the First Amendment argument that the plaintiffs in the current case have raised. “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” he wrote. “In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.”
That was the precise “purpose and effect” of the Republican redistricting effort.
If this case goes to the U.S. Supreme Court, Schimel may not be able to rely on Justice Kennedy’s vote—and if that happens, he’ll end up losing.