BY ANNE BLYTHE
In North Carolina, where there have been seven redistricting lawsuits in the past decade, the news of Justice Anthony Kennedy's retirement from the U.S. Supreme Court added a new cliffhanger in the long-running mystery of partisan and racial gerrymandering claims not yet resolved.
During his three decades on the bench, Kennedy has voted with the more liberal justices on everything from same-sex marriage to abortion rights to affirmative action to the constitutional rights of criminals and limitations on the death penalty.
The 81-year-old Ronald Reagan appointee also was considered by many to be a crucial swing vote on racial and partisan gerrymander cases. His absence from the court adds a new question mark to what will happen to the gerrymandering lawsuits in North Carolina that could shape election districts for congressional and General Assembly seats in the 2020 elections.
"It's a little early to figure out exactly how that all plays out because we don't know who the successor is or when he or she may be there," said Michael Li, senior counsel for the Brennan Center for Justice's Democracy Program.
President Donald Trump said Wednesday he would start the effort to replace Kennedy "immediately." Senate Majority Leader Mitch McConnell, a Kentucky Republican, has declared that the Senate "will vote to confirm Justice Kennedy's successor this fall." Senate Minority Leader Chuck Schumer, a New York Democrat, has argued that any decision should be put on hold until after the November elections.
McConnell's success in blocking President Barack Obama's nominee, Merrick Garland, to the court in 2016 served as a campaign rallying issue for Republicans then. The Kennedy replacement could serve as a similar rallying issue in the 2018 elections as conservatives try to tilt the balance of the court for years to come.
Even if that tilt happens, some legal analysts say that does not necessarily mean the efforts to do away with extreme partisan gerrymandering will go unanswered for generations.
"We really don't know what's going to happen," said Justin Levitt, a professor at Loyola Law School in Los Angeles who tracks redistricting cases. "There are some things we know. We know there will potentially be a seismic impact on reproductive freedom, LGBT rights and some other things where Kennedy joined the progressives on the court."
It was Kennedy's opinion in a 2004 redistricting decision that kept the door open to lawsuits such as the one in North Carolina questioning whether Republican lawmakers went too far in 2016 when they adopted Congressional districts designed to give the party a 10-to-3 advantage. Though Kennedy did not rule in the 2004 case that partisan gerrymandering had occurred, he indicated a willingness to revisit the issue.
Not 'an issue that is reliably partisan'
But in his last session on the court, Kennedy joined the majority of justices who kicked cases from Wisconsin, Maryland and North Carolina back to the lower courts for more hearings.
Kennedy's departure might mean attorneys in those cases have to adjust their arguments for the next justice who joins the court. But some legal analysts say there are arguments that can be made that could appeal to a conservative jurist.
"I don't, in any way, want to discount Justice Kennedy's importance to the issue," Levitt said in a telephone interview Wednesday night. "But I don't think this is an issue that's reliably partisan."
When the justices sent the Wisconsin case back to the lower court, with a note that challengers of the Republican redistricting plans needed to show individual harm, not just statewide harm, the four more liberal justices teed up a road map for how a successful argument might be made. That included showing how biased maps stood in the way of the First Amendment right to freedom of association.
"Justice Kennedy is an extremely strong promoter of the First Amendment," Levitt said. "That's not a particularly conservative or liberal issue. I would think it's a conservative principle that a state shouldn't be able to punish your private political speech."
In the North Carolina case challenging the state's 13 congressional districts as extreme unconstitutional partisan gerrymanders, the state Democratic Party joined with Common Cause North Carolina and the League of Women Voters in claiming their First Amendment rights had been violated.
Fourth U.S. Circuit Judge James A. Wynn, a Barack Obama appointee, wrote a 205-page opinion that was joined in full by U.S. District Judge William Britt, a Jimmy Carter appointee, and in part by Judge William Osteen Jr., a George W. Bush appointee. Osteen accepted the Equal Protection arguments but rejected the plaintiffs’ First Amendment claim.
Taken together, the judges ruled, the challengers' evidence established that the 2016 congressional district plan's "pro-Republican bias had the effect of chilling the political speech and associational rights of individuals and entities that support non-Republican candidates. And we further find that the 2016 Plan adversely affected such individuals’ and entities’ First Amendment rights by diluting the electoral speech and power of voters who support non-Republican candidates."
Li at the Brennan Center and others predict that case, Rucho v. Common Cause, could be one of the first to land back at the Supreme Court.
NC's 'so-called smoking gun'
The three-judge panel that struck down the congressional districts earlier this year heard evidence about individual harm, statewide harm and the free speech and the freedom to assemble arguments. The judges have asked attorneys representing the lawmakers and challengers to file any additional briefs for them by July 11, signaling a willingness to address the Supreme Court's questions quickly.
The North Carolina case has an element not present in the Wisconsin or Maryland cases.
Bob Phillips, executive director of Common Cause North Carolina, called it the "so-called smoking gun."
Rep. David Lewis, a Harnett County Republican and a leader of the redistricting process that led to the 2016 congressional districts, acknowledged outright the maps were drawn to give Republicans an advantage.
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats because I do not believe it’s possible to draw a map with eleven Republicans and two Democrats,” Lewis said at the time
Wynn stated in the panel's comprehensive opinion: "A partisan gerrymander that is intended to and likely has the effect of entrenching a political party in power undermines the ability of voters to effect change when they see legislative action as infringing on their rights. We agree with Plaintiffs that a wealth of evidence proves the General Assembly’s intent to ‘subordinate’ the interests of non-Republican voters and ‘entrench’ Republican domination of the state’s congressional delegation."
Li, Levitt and others said the North Carolina case could, indeed, have stronger elements than partisan gerrymander cases that proceeded it to the country's highest court.
"North Carolina, in many ways, is an easy one because it has the easy bald-face statements," Li said.
But when it goes back to the high court again and whether Trump's nominee is seated by then, remains a question that no one can answer. It's unclear, too, what will happen with future racial gerrymander claims.
Additional confusion was added this week, when the justices ruled 5-4 to uphold, for the most part, an array of congressional and legislative districts in Texas.
In an opinion written by Justice Samuel A. Alito Jr., the court's more conservative members overturned lower court rulings that found them to be unconstitutional racial gerrymanders. Alito wrote that the trial court had “committed a fundamental legal error” by requiring state officials to justify their use of voting maps that had been largely drawn by the trial court itself.
Justice Sonia Sotomayor wrote in her dissent the majority opinion "does great damage to that right of equal opportunity."
Is Roberts the new swing vote?
The Constitution and the Voting Rights Act “secure for all voters in our country, regardless of race, the right to equal participation in our political processes,” she wrote. “Those guarantees mean little, however, if courts do not remain vigilant in curbing states’ efforts to undermine the ability of minority voters to meaningfully exercise that right.”
Irv Joyner, a Durham attorney who has been at the table with the NAACP on voting rights cases, said this week that Kennedy turned out not to be the swing vote on partisan gerrymandering that critics of the practice had hoped to have.
"I think Kennedy on racial gerrymandering, he would have been a positive vote," Joyner said. "On the partisan gerrymandering, he would have been an if."
In Kennedy's absence, some think Chief Justice John Roberts could become the vote that attorneys hope to swing.
Roberts raised concerns about the court's reputation if it started weighing in on partisan gerrymandering. He feared that would lead the public to see the independent judiciary as favoring one party over another.
"Sociological gobbledygook" was how Roberts dismissed a mathematical formula that Democratic voters in the Wisconsin case used to try to bolster their claims that Republicans in the statehouse redrew lines in 2011 with discriminatory intent. The formula, called the “efficiency gap,” counts the number of votes wasted when voters are shifted into districts where their votes won’t matter, either because their party’s candidate can’t win or is already sure to win.
But in a Maryland case, Roberts asked how a map gerrymandered for partisan gain was any different from an unconstitutional statute that explicitly favored one party over the other.
"Will Roberts be the swing vote?" Joyner said. "I would hope that would be where he would end up."