The Supreme Court on Tuesday will hear a case, Gill v. Whitford, from Wisconsin Democrats, who argue that the district maps in their state were unconstitutionally drawn favoring the GOP. "In 2014, the Republican Party received 52% of the two-party statewide vote share and won 63 assembly seats". In the following election, in 2012, Democrats won a majority of votes but Republicans captured sixty out of ninety-nine seats in the State Assembly.
For example, Ohioans tend to vote by narrow enough margins in many statewide elections to flip power, and the nation's presidency, back and forth between Republicans and Democrats.
But Kennedy gave few hints as to whether he was satisfied that the Democratic challengers to the Wisconsin map had offered a manageable standard that could separate unconstitutional maps from legitimate ones.
A special three-judge court in Madison agreed, in a divided ruling.
Supreme Court justices clashed on Tuesday over whether courts should curb the long-standing US political practice of drawing electoral maps to entrench one party in power, with conservative Anthony Kennedy likely to cast the deciding vote.
The Supreme Court has previously held that undocumented immigrants are entitled to some form of due process when contesting their detention but also that "brief" detentions were allowed. The answer could reshape American politics. But it also presents a steep challenge for the justices, who have been hesitant to referee the political process so directly. If the Court "illegitimately invades" that domain, he warned, it will "invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena".
Smith responded by arguing that gerrymandering posed an equally risky threat to democracy because it would erode confidence in the political system and discourage people from voting.
Though it is up in the air how deeply the Court will cut into the practice of partisan gerrymandering, a smart gambler would bet on Wisconsin's maps going down.
"Since 1970, redistricting usually goes to the Minnesota Supreme court because we can never agree", Schultz said.
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Kennedy, First Amendment Champion: Liberals hoped that Anthony Kennedy would extend his embrace of the First Amendment to striking down gerrymandering as a de facto punishment of expression. The plaintiffs are relying on a law called the Alien Tort Statute, which grants USA courts the right to hear civil actions brought by aliens for any violation of the "law of nations or a treaty of the United States".
Paul Smith, the same lawyer who failed to get Kennedy's vote and thus a majority 13 years ago, is again urging the court to rein in partisan gerrymandering, or drawing districts for partisan gain.
Wisconsin says clear, manageable standards can not be established because best social science practices are constantly changing, an argument with which the chief and Justice Samuel Alito expressed agreement. The gap was use in federal court in the Wisconsin case, showing a clear Republican advantage that guaranteed "the number of Republican seats would not drop below 50 percent", according to the ruling.
Gorsuch and Alito, who at one point conceded gerrymandering was "distasteful", pressed Smith on how exactly the court could establish a test to determine whether a redistricting plan was unconstitutional.
But at the moment, he just might be the most powerful political figure in the United States. As technology like mapping software, census data, and voting algorithms improves, it becomes even easier to draw voting district lines even more precisely, making it even easier to be extremely partisan. That could lead to changes in political maps across the country. If the court decides these matters are better left with the political branches, it could give map makers even more leeway.
While every Supreme Court case is notable, some topics on their radar this term include voter rights, gerrymandering, religion, discrimination, digital privacy and worker's rights.
A decision is expected by the spring.