Overlooked because of the Campaign Finance ruling yesterday was arguably a more important case being argued before the Supremes, Vieth.
In that case, the Pennsylvania Democrats are trying to overturn a Republican partisan gerrymander as unconstitutional. They have a tough road [update: my wife says this is a sign I’m from the city. It should be “row,” not road] to hoe. As background, years ago the Supreme Court in a case called Bandemer stated that partisan gerrymandering might be unconstitution. But, the Court declined to ever find such a case. Sandra Dee was in the dissent, where she stated that partisan gerrymandering could not be unconstitution — it was a political issue that is not justiciable.
Below in the extended entry is Professor Nathaniel Persily’s review of the day’s oral argument, which he attended.
Here are a few paraphrased tidbits from the oral argument in Vieth,
which I attended with my students yesterday. Some of the comments
repeat the description in SCOTUSBLOG and in Roy’s post, but I figured
I might as well send them along since I had already wrote this up
(although these are not from notes, so take Roy’s post as more
In short, it was rough sledding for the Appellants. By the end of the
argument it seemed more likely to me that the Court would reverse
Bandemer and hold partisan gerrymandering claims nonjusticiable, than
it would strike down the Pennsylvania plan. The reasons were what we
all predicted: the lack of any administrable standards to define when
such a gerrymander rises to a constitutional violation and the fear
(ironic though it may be) of venturing farther into the political
The tone for the whole argument was set by Justice O’Connor’s first
comment: “Maybe the lesson since Bandemer – given that no court has
found an unconstitutional partisan gerrymander – is that we should get
out of this mess altogether.” “Hands off”, I think she said.
Justice Scalia agreed, asking “isn’t it peculiar for us to recognize
the possibility of a constitutional violation but then never find a
situation which satisfies the standard.” He also later suggested that
Article I leaves these disputes in the hands of state legislatures.
The Chief Justice pressed: There is nothing in our constitutional
tradition for holding these gerrymanders unconstitutional – nothing in
the text or traditions or history. If you look at people like Canon
and Dirksen – partisanship has always been a part of this process. No
one has believed that partisanship should be removed from the
process. Indeed, the word democracy isn’t even in the Constitution.
[Scalia interjected – let alone party]
The lion’s share of the argument was dedicated to the appellants
proposed standard, namely that a constitutional violation occurs when
the party receiving a majority of the votes consistently cannot win
even close to a majority of the seats. Not a single Justice appeared
willing to sign on to this standard. In fact, it was unclear to me
whether the Justices even understood it. It reminded me of the famed
(and rejected) Banzhaf index from the one-person, one-vote cases. The
Justices seemed likewise suspicious that judges (or anyone) could
figure out whether the congressional delegation was consistently
unreflective of majority will.
From their responses, it appeared the Justices thought of this as
either (1) a standard that might always be satisfied or (2) a
potential morasse in which claims always get thrown into courts, and
we rely on experts to fight it out as to whether the data show a
continued denial of majority rule. Paul Smith for the Appellants
analogized the inquiry to a Section 2 VRA case.
Justice Breyer remarked: What you are describing here is government
by experts, not government by the people. [At which point, I wanted
to ask him: “Your point being?”]
Then Breyer said: This reminds me of what John Kenneth Galbraith used
to say: “I’d rather be governed by 50 people chosen at random than by
the faculty of Harvard University.”
Justice Scalia interrupted: “It was William F. Buckley, who said that.”
Justices Stevens and Breyer kept trying to suggest alternative
standards grounded either in Powell’s Bandemer concurrence (Stevens)
or in Shaw (Breyer).
Stevens suggested the state should be forced to provide at least
one “neutral” (i.e., unrelated to partisanship) reason for an alleged
Counsel for PA said that there are no “nonpolitical” reasons.
Stevens suggested compactness, contiguity, respect for political
subdivisions, reelecting incumbents of both parties [a strange choice,
I thought – did he not have Issacharoff’s insightful Harvard piece on
his nightstand, like the rest of us do?].
Counsel for PA maintained that given known demographic patterns etc.,
such principles have foreseeable partisan effects.
One other interesting Stevens moment: he asked whether it would be
legal for a majority party to pass a law that gave a higher salary to
members of the majority party. If not, how was this different?
Counsel for PA didn’t really respond directly except to mention that
the leaders of the majority party in the PA legislature actually do
get higher salaries, owing to their additional duties.
Justice Breyer seemed to suggest a three part standard, which combined
Shaw, Justice Stevens’s proposal and the Appellants’. He suggested
that plaintiffs should demonstrate:
(1) that partisanship was the predominant factor in a districting
(2) that no neutral justification could be proffered, and
(3) that majority will was consistently frustrated
Breyer also spoke a bit about Shaw. He said that he was against the
standard that came out of the “positive gerrymandering” [i.e., Shaw] cases. He had always felt that since partisanship could be used to
draw districts why can’t we use race to draw districts to help out
minorities. But “since I lost that battle,” perhaps we should now
apply the same standard to partisan gerrymandering claims – i.e., that
partisanship cannot be the predominant factor.
Counsel for PA reemphasized that partisanship was always part of the
process, and he implied that no one was really injured by a partisan
One thing that struck me was how the debate in the Court seemed
completely detached from the mass of empirical work done on partisan
gerrymandering. This was all the more surprising given the excellent
amicus briefs assembled by the Appellants from Tom Mann et al., and
from Jacobson and Grofman (whose brief actually supported neither
party). [Although, like O’Connor et al, I am particularly worried
about courts getting deeply involved in these disputes and think that
should decide this case, I think the evidence that partisan
gerrymanders, or any gerrymander, were more successful in 2002 than
previously is hard to dispute. This is due less to a function of the
new technology, which everyone seems to emphasize, than it is to the
stability of partisan preferences in the electorate. People point to
the rise in the number of independent voters out there (despite Keith
et al., The Myth of the Independent Voter) and assume there is a huge
mass of voters switching sides between elections or as they move down
the ballot. That is just not true. Larry Bartels has the best
article – I think it is in the AJPS from two years ago — on this.]
It seemed that several Justices (I think Kennedy was one) continue to
believe that partisan gerrymanders are self-regulating – i.e., the
more greedy the controlling party is, the more likely it is to risk
losing many seats. In other words, The Honorable Bruce Cain might get
another cite here as he did in Bandemer. [Given the other news of the
day – i.e., McConnell – I guess they have only read his early work.]
Justice Scalia stressed that losing elections may have more to do with
the inability of the minority party to persuade people over to its
side. How do we know they are losing because of the gerrymander? he
Concerning administrability, Scalia asked: what would we look at –
party registration data? Election returns? If so, which election
returns and for how many elections? How do you know in which way they
are going to vote in the next election? What do you do in a state
like Minnesota where they have a vibrant third party like the Farmer-
Labor? [Note: the Farmer Labor “Party” is basically merged with the
On a similar note, the Counsel for PA argued that the Appellants’
standard, which would look at past election returns, would inevitably
be biased in favor of a party that was losing voters. “Some of these
people have switched parties, some have died, etc.” Several Justices
thought this argument was particularly clever. It also emphasized an
inherent difficulty in these types of cases: you will never know for
sure that majority will has been consistently frustrated or that one
party has been systematically screwed until a few elections (2 or 3)
have passed. Then litigation might take a year or so, and before you
know it, it is time to redistrict again.
Justice Souter didn’t say much except to suggest that most of the
predictions of the Republicans in this case came to fruition. They
only lost one seat that they thought they were going to win. “You
don’t have to bat a thousand” to prove a constitutional violation.
For counsel for PA – the fact that one of the expected Republican
districts ended up going to a Democrat, showed how these gerrymanders
are unpredictable. [FYI – they were discussing Congressman Jim
Hoeffel’s district. He was paired in a republican leaning district
with a republican incumbent, George Gekas, and narrowly won. He will
now be running against Arlen Specter for Senate and his seat is likely
to go Republican.] Also of note, given the claim that Dems were
completely shut out of the process: About 40% of Democrats in the PA
assembly voted in favor of the plan.
Justice Kennedy (the key vote if this is going to be a 5-4 decision,
which I think it won’t) didn’t say all that much; though toward the
end he asked: “Your argument would apply to all elections, even down
to every city council, water district, etc. right?” Paul Smith
responded: “Yes, even local governments can violate constitutional
So, in short, it was a bad day for Democrats, those who want the Court
to breathe notions of competition into the Constitution, and those of
us who profit off redistricting chaos. It was a good day for Tom
Delay, political cartelmeisters, and Frankfurter enthusiasts.