COVID-19 Special Coverage
Are political gerrymandering claims justiciable? Gill v. Whitford argument preview
Are political gerrymandering claims justiciable? Gill v. Whitford argument preview

The US Supreme Court [official website] will hear oral arguments today in Gill v. Whitford [docket], a case directly challenging the constitutionality of Wisconsin’s congressional districts with broad implications for the limits of political gerrymandering nationwide.

The Court will address both procedural and substantive [questions presented, PDF] issues in this case. As a preliminary matter, the Court must determine whether the district court had the authority to hear a statewide challenge to Wisconsin’s redistricting plan, as opposed to hearing the case district by district. Substantively, the sides agree that Wisconsin’s redistricting plan is typical of traditional redistricting plans. Thus, a ruling against Wisconsin will represent a significant change in the law and require state legislature’s to reevaluate how they carry out redistricting.

The Court must also address, once again, whether or not partisan gerrymandering claims are justiciable (or capable of being resolved by the judiciary). In 1986, the Court ruled in Davis v. Bandemer [opinion] that political gerrymandering was justiciable, but a majority could not agree on a standard by which to assess political gerrymandering claims. Then, in 2004’s Veith v. Jubelirer [opinion], a plurality of the Court led by Justice Scalia sought to overrule Davis, arguing that the lack of manageable standards makes these claims nonjusticiable. The Court will address this question again.

Finally, provided a majority can agree on the justiciability question, the Court must resolve what standard lower courts are to employ in trying political redistricting cases. The district court appeared to draw its test from the plurality in Davis, but a majority on the Court has yet to endorse a test or standard for these cases. In Veith, the conservative and liberal justices split evenly. Justice Kennedy straddled the middle by concurring in the judgment, while refusing to “foreclose all possibility of judicial relief” if an appropriate standard could be identified.

We’ll share audio and the transcript as soon as possible.

UPDATE (4:03 PM EDT): The transcript is now available.