Wisconsin Gerrymandering Case: Kennedy's Questions at Oral Argument Suggest Citizens' Win Against GOP, Experts Say

Wisconsin gerrymandering case, Gill v. Whitford,
at Oct 3 oral argument at U.S. Supreme Court.
 See Gill v. Whitford for transcript from
U.S. Supreme Court.

In Wisconsin's potentially precedent-setting gerrymandering case at the U.S. Supreme Court, several experts focusing on Justice Anthony Kennedy's questioning say a win for citizens' First Amendment rights against Republican incursions here appears likely.

The case is Gill v. Whitford, (U.S. Supreme Court).

Kennedy's questioning excoriated one of the Republicans' attorney, (representing the GOP-led Wisconsin State Senate), Erin E. Murphy.

Reports Mark Joseph Stern at Slate Magazine from the October 3 oral argument:

Erin E. Murphy then takes over for [Wisconsin Solicitor General Misha ] Tseytlin at the lectern. She represents the Wisconsin State Senate, where the Republican majority would very much like to stay in power. Kennedy promptly grills Murphy with a sharp hypothetical: Imagine a law that compels legislators to draw maps that consider 'traditional principles' but must maximally favor one party. Would that be constitutional? And under what principle? Murphy ducks the query for several minutes before an irked Kennedy eventually intones: 'I’d like an answer to the question.'

Murphy admits that such a law might constitute 'a First Amendment violation in the sense that it is viewpoint discrimination.' It’s an odd moment, since she is effectively telling the justices that, yes, her client violated the Constitution, but, no, the court can’t do anything about it. Justice Sonia Sotomayor seizes the moment to ask Murphy 'what the value is to democracy from political gerrymandering.' Murphy provides a gloriously nonsensical answer, asserting that 'it produces values in terms of accountability that are valuable so that the people understand who isn’t and who is in power.'

'I really don’t understand what that means,' Sotomayor deadpans. The liberal justices have eaten Murphy’s lunch, and she slinks off.

Stern's analysis is seconded by Adam Liptak and Michael D. Shear in the NYT:

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.

See also Edward B. Foley - Moritz College of Law and Rick Hasen's Election Law. and Steven Mazie at The Economist.