(Brennan Center for Justice)
In Vieth v. Jubelier (2004), the Court failed to agree on a standard to detect when partisan gerrymandering gets so extreme it crosses the constitutional line. Frustrated, the Court became more divided, affording Justice Kennedy immense decisive power with his swing vote. By voting with 4 liberal justices on the issue of justiciability and 4 conservative justices on the issue of unconstitutionality, Kennedy upheld the compromise position laid out in Davis v. Bandemer.
"If workable standards do emerge to measure these burdens...the Court should be prepared to offer relief."
Artist sketches from the Gill v. Whitford Oral Argument
Currently, the Supreme Court has two partisan gerrymandering cases on its docket, Gill v. Whitford and Benisek v. Lamone. The former is an appeal based on Republican redistricting in Wisconsin. The latter is an appeal based on Democrat redistricting in Maryland. Multiple quantitative standards purporting to measure extreme partisan gerrymandering have been offered to the Courts through amicus briefs. Justice Kennedy is expected to be the swing vote in both cases.
Will this be the year that the Court settles on a standard to determine how much partisan gerrymandering is too much? If so, the Court will finally walk through the door of compromise opened by Davis v. Bandemer.
...Political scientists have now done what wouldn't have...been possible to do in the 1980s because... of the lack of available computing power."
- Theodore Boehm, lawyer for the Indiana Democrats, Davis v. Bandemer, telephone interview