The End of Partisan Redistricting?: Benisek v. Lamone

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Free Speech and Election Law Practice Group, was recorded on Friday, March 30, 2018, during a live teleforum conference call held exclusively for Federalist Society members.       

 

Dean Reuter:  Welcome to the Practice Group's Teleforum Conference call as today we discuss the Benisek partisan redistricting case. I'm Dean Reuter, Vice President, Director of Practice Groups, and General Counsel here at The Federalist Society.

 

      Please note that all expressions of opinion are those of the expert on today's call. Also, this call is being recorded for use as a podcast and will likely be transcribed.

 

      We're very pleased to welcome return guest Misha Tseytlin. He's the Solicitor General in the Wisconsin Department of Justice. Wisconsin went through a similar case, a partisan gerrymandering case, earlier in the term. Benisek is the second such case, a Maryland case, argued earlier this week. So we're very pleased to welcome him as our guest. I think he's going to be brief in his opening remarks, and we'll be looking very soon to audience questions.

 

      In fact, we're going to take the unusual step of opening the line to questions now so that -- our guest has indicated if you have a question at any point in time, he's happy to pause and answer your question. So as I normally do after opening remarks, I have now opened the floor to questions. So if you at any point in time have a question for our guest, push the star button then the pound button and we will interrupt him during his opening remarks. Otherwise, when he's done, we'll invite questions once again. With that, Misha Tseytlin, the floor is yours.

 

Misha Tseytlin:  Thank you so much. And thank you for The Federalist Society for having me on another one of these, as I've always found these to be a valuable experience, and I get really good questions. As Dean indicated, I am happy to answer any questions folks may have. I prefer answering questions to hearing myself talk, so if anything I say prompts a question in your mind, please feel free to chime in and we can have, hopefully, a useful discussion.

 

      Now, quickly, as a little bit of background on political gerrymandering, which is, I think, a colloquial term for the general concept of drawing political boundaries to obtain some form of partisan advantage. It is a practice that's as old as the Republic and probably older. The name gerrymandering comes from the name of Massachusetts governor, Elbridge Gerry. He presided over a districting scheme in Massachusetts where some of the districts were cartoonized as looking like a salamander, so an enterprising cartoonist combined his last name and the salamander into gerrymander.

 

      Now, the Supreme Court for a long time did not get involved in the issue of political gerrymandering. About 40 years ago, it started to poke its foot in the door, attempting to come up with a legal standard for an illegal, unconstitutional, political gerrymandering. The Court has not been able to settle upon any judicially manageable standards. The reason for this difficulty, I think most people acknowledge, is that political considerations in drawing district lines are ubiquitous. There is always partisan intent, and at least some partisan intent is unavoidable. So the difficulty in crafting a judicially manageable standard is having a limited, precise, specific test for deciding how much politics is too much.

 

      This is quite different than, for example, in the racial gerrymandering context where the Court has rightly concluded that absent compliance with the Voting Rights Act or some other consideration that satisfies strict scrutiny, you can't have racial considerations. You can't draw district lines for racial reasons. A similar standard, I think almost everyone recognizes, would be impossible in the political context. So you have the challenge of deciding how much politics is too much.

 

      So as I mentioned, the Supreme Court over the last 40 years has had a couple of political gerrymandering cases but has not settled upon a standard. It got back into this issue full-freight this term. The first case it heard on the issue came out of Wisconsin, and it was a challenge to Wisconsin's state-wide map, claiming that it was a political gerrymander. I argued that case for the State of Wisconsin on October 3rd, right at the beginning of this term. The plaintiffs in the Wisconsin case attempted to solve the how-much-politics-is too-much puzzle by proposing a series of social science metrics, all loosely built around the partisan symmetry concept. I can give folks more information about that concept and those metrics if you're interested, but for now, I'll just say there were a couple of arguments that we raised that are going to be relevant to the Maryland case that I will be talking about in a minute.

 

      And one of the arguments we said is that even in the racial gerrymandering context, which is I think by everyone is like a more serious constitutional allegation than what everyone thinks of political gerrymandering, plaintiffs are limited to district-specific challenges for their own district. So even if one thinks that a whole state was racially gerrymandered—perhaps you have minorities spread across the state and the allegation of legislature gerrymander statewide—you can't bring that kind of claim. You're limited to district-specific claims. And one of the things we argued is, at minimum, that rule should apply in the political gerrymandering context. So the statewide challenge to the Wisconsin map should be thrown out on that basis alone.

 

      Second, we argued that the social science metrics that the plaintiffs were proposing were too broad, too malleable, and too uncertain. Now, fast forward a couple of months later. There has not been a decision yet in the Wisconsin maps. And the Supreme Court, unexpectedly, sets for argument a case arising out of Maryland involving a single district political gerrymandering challenge. The reason I say unexpectedly is that the case had -- the first filings in the Supreme Court on that case by the challengers to the maps had actually occurred before our oral argument. And what the challengers said in that filing was, "Hey, look, we have a single district challenge. You should expedite the briefing in our case and have us argue it on the same day as the Wisconsin argument so that the Court has both options, both the statewide and the district-specific challenge before it." And the Supreme Court had denied that, so I think most folks are then expecting the Supreme Court to adjudicate our case. But the Supreme Court, I think by most lights, unexpectedly set Maryland case for argument, and that argument happened earlier this week.

 

      Now, as I mentioned, the Maryland case involves a single district challenge, a challenge that one particular district was politically gerrymandered in order to favor a political party. The theory that the plaintiffs are raising in that case is not based at all on the social science metrics that were the centerpiece of the challenge to the Wisconsin map. Instead, the plaintiffs in the Maryland case attempt to ground their theory in the First Amendment retaliation doctrine, and their standard is built around a retaliatory intent and a more than de minimis effect.

 

      Now, oral argument was held on Wednesday in this case. Several of the Justices made clear that they are unhappy and remain unhappy about the practice of political gerrymandering, but they did not seem to reflect any consensus on what standard they would adopt. I think it is at least notable that none of the Justices really discussed the political -- the social science based metrics that were the centerpiece of the Wisconsin case, suggesting at least, hopefully, to us that some of the arguments that we had made in the Wisconsin case about how those metrics do not forward the interests of -- attempted to come up with a limited, precise standard had it found some favor with the Court, but I guess that's just speculation.

 

      In fact, the uncertainty between the Justices as to what they would do with these cases was so great that Justice Breyer suggested that both the Maryland case, the Wisconsin case, and another case pending out of North Carolina, be set for a single, consolidated re-argument, at least in the Wisconsin and Maryland examples, next term. I think if the Court had been happy that it was settling on a standard to judge these cases, that suggestion would be quite odd. But again, that suggestion did not find any other vocal support at oral argument so it's hard to know what to make of it.

 

      So the Maryland case oral argument has been completed in that case and a decision on that case and the Wisconsin case is expected by June, unless Justice Breyer's suggestion gets some traction, and then, of course, then we'd all do it again next term. So now I think those are just my opening remarks. I'm happy to hear questions either from Dean or from the audience, or anyone else who wants to speak up.

 

Dean Reuter:  Well, thank you. We are in the question and answer phase here. If you have a question for our guest, push the star button and then the pound button on your telephone. We've got quite a bit of time left. Let me get things started here while we wait to see who rings in by asking you more about this in the Maryland case, the First Amendment retaliatory effect. Can you just tell our listeners a little bit more about that First Amendment claim? What does that mean? How has it been received by the Court? What happened at oral argument around that issue?

 

Misha Tseytlin:  All right, so the theory underlying their claim is they want to analogize political gerrymandering to established political retaliation case law. For example, it is generally impermissible for a state to fire a line employee, a janitor or secretary, or some other non-policymaker, because they have expressed Republican, or Democrat, or Libertarian, or Green Party views. That has been held by the Supreme Court to be generally a First Amendment violation. And they attempt to analogize political gerrymandering, drawing political lines in an individual district to change the winner of the district or make it harder for certain voters to prevail in that district, as analogous to that. Like a lot of articulations in the theory of political gerrymandering, that can sound a lot better in theory than in practice.

 

      In theory, one could articulate political gerrymandering in a way that if you squint hard enough, it feels like something that might be grounded in that kind of doctrine. But, of course, as I mentioned at the beginning, the fundamental challenge in the political gerrymandering context is deciding how much politics is too much. And the notion—just kind of pointing to this body of case law for the retaliatory firing case law—doesn't really advance the inquiry of how much is too much. And I think that was on display at the oral argument on Wednesday where the justices were pressing the plaintiff counsel about what kind of political considerations he would permit, how much of impermissible political considerations he would require, what does it mean for there to be retaliatory impact in the district line-drawing process.

 

      And the plaintiff's counsel attempted to have some limiting principle in saying that there couldn't be a de minimis political impact, but I think the justices did not seem persuaded that that was sufficiently limited. But again, those are just oral argument questions, and we don't know until they actually issue the decision whether they like that standard, or whether they want to craft a modified version of that standard, or whether they think that standard is a non-starter, or whether they think that standard has some promise, but they want the issue with some guidance from the Supreme Court to percolate in the lower courts further.

 

Dean Reuter:   Well, this is Dean again. Again, if you're in the audience, you have a question, push the star button, then the pound button on your telephone. We've got one question pending, but I want to ask a follow-up question on this retaliatory effect, this First Amendment claim. It just seems to me that that would wipe out all consideration of all partisan or political gerrymandering. And my understanding, at least when I got out of law school in 1986, gerrymandering was all about politics, and overtly so. And it wasn't the case that this was being done sort of illicitly or covertly. Everybody knew it was for political purposes. The doers knew it, the victims of it knew it, nobody seemed to be overly concerned about it. Can you tell me more about what's changed to make this an issue at this point in time?

 

Misha Tseytlin:  Well, I mean, I would say that political gerrymandering by the party that was not in power has -- issues with it have been voiced in court, unsuccessfully, but they have been voiced in court for 70, 80 years, again, unsuccessfully, as a general matter. They've been voiced at the U.S. Supreme Court for 35, 40 years. So the arguments against political gerrymandering by those who feel they are on the wrong side of it and having those arguments brought to court is nothing new. The challenge has always been for those plaintiffs because, as your question I think properly has as a premise, the political line-drawing by politicians is root and branch political.

     

      I think everyone has recognized, including the justices who are critical of political gerrymandering and the judges that are, that you need some way to have a line between what is normal politics and what is going too far. I think it was a telling exchange at the Supreme Court in the Maryland case this week. Justice Kagan and Justice Sotomayor obviously, or not obviously, but seemed to want to do something about the Maryland map, and while they did not seem too satisfied with the de minimis test the plaintiffs had proposed, they said, "Well, we know we need to decide how much is too much, but can't we just say that this is too much?", just because there were a lot of statements in the Maryland case, including from Governor O'Malley, that were pretty rough, pretty hardball.

 

      And Justice Breyer chimed in and he said, "Well, that doesn't," -- with a question that, now that I think, the gist of it was, "Well, having those kind of single-minded statements, having a legal test based upon that, or having an execution based on that wouldn't do much good because if the only thing that you would say is, 'Well, you can't have districting with those kind of statements,' folks just wouldn't make those kind of statements in the future and they would draw the lines the same way."

 

      So I think even that attempt to ground the test and the particular -- I think the statements that Governor O'Malley made in the Maryland case might be a little more than you'd see in a usual case. I think at least Justice Breyer's question recognized that that wouldn't provide any sort of useful limiting principle either.

 

      So I think the courts are still with the same challenge they've been for the last 40 years, which is lacking a judicially administrable principle standard for distinguishing between permissible politics and too much political consideration.

 

Dean Reuter:  Any overlap here with the political question doctrine of the Court, that they tend to want to avoid political questions, getting involved in them in the first place?

 

Misha Tseytlin:  And so the political question doctrine is a broader doctrine that encompasses several considerations, for example, that are some foreign policy decisions that are root-and-branch political in a way that's been assigned to the political branches by our Constitutional system. So sometimes you'll have issues decided as political questions that way. I think the way courts have looked at the political question doctrine in the districting context has not been so much that making districting decisions is assigned wholly to the political branch such that the courts get involved. Courts second guess, for example, one person, one vote, and they second guess racial gerrymandering.

 

      I think what the courts have done is they've taken the branch of the political question doctrine that says that courts should not get involved unless they can design judicially administrable, judicially manageable standards. And the justification there isn't that courts have as a structural matter or as a Constitutional text matter no business in this area, but that if courts cannot come up with a principle test, it is better that they stay their hand, or they stay out of the area entirely.

     

      And that was the position very powerfully articulated by Justice O'Connor when she was on the Court. She is, of course, the rare justice that actually drew maps when she was in the Arizona Legislature. And she articulated, I think, quite powerfully that there are just no judicially manageable standards for distinguishing between permissible politics and too much politics. So the political question doctrine at large in some of its variants is not necessarily applicable here, but the judicially manageable standards branch of the political question doctrine is highly relevant. I think at least some very well-respected jurists have said that the courts should not get involved in this area and should deem it a political question based upon the judicially manageable standards inquiry.

 

Dean Reuter:  Very good. It's almost an I-see-it-when-I-know-it standard. We do have three questions pending. And I don't know if you said in your opening remarks, Misha Tseytlin, or not, but it is interesting -- I find that this is, although political, it's bipartisan, and in one case, it's the Democrats who are complaining as victims, and in the other case, it's the Republicans who are complaining as victims.

 

      But let's turn to our audience now and take our first question of the day. Go ahead, caller.

 

Caller 1:  Hi. I'd like to join a couple of phrases that I've heard together. First is that justice should be blind, and the second is that politicians -- voters should choose their politicians; politicians shouldn't choose their voters. I'd like to begin my question by saying do any of the justices disagree with that second premise?

 

Misha Tseytlin:  I mean, that second premise, I think, is more, and I don't mean to say this in a kind of a dismissive way, but I think there's no better way to say this is that's more of a political talking point than an argument that kind of finds favor in judicial doctrine. And I'll say, like for example, there is almost, and I don't know of any jurist that believes, for example, that if politicians draw district lines, in part, for incumbency protection that that is unconstitutional. And that is, of course, if you were to kind of take the principle that politicians shouldn't choose their voters seriously, that would be a much more specific example of politicians choosing their voters than the other way around, than kind of political gerrymandering which is generally favoring one's party.

 

      And so, the Supreme Court has actually held that incumbency protection is one of the things that can be taken into account. So I think the issue with political gerrymandering to the extent that some justices have a problem with it isn't politicians choosing their voters in that way; otherwise, it would apply more closely to incumbency protection. It's more that they don't think that favoring one's political party should, at least in an extreme case, be permissible. So I think that's why I think that political slogan isn't particularly apt to the political gerrymandering in the legal debate because it kind of hits the wrong emphasis.

 

Caller 1:  Understood, and thank you. The second half of my question though is going to be -- I've heard a lot of the standards. I looked at the social science standard and in another area of law, the law of Fourth Amendment searches, the justices have made a technology determination. So, for example, certain technologies cannot be used to search a home from the outside. If it's not a technology available to the general public, I think is the standard, the police can't use it to get a heat signature on your home without a warrant first.

 

      And everything that I've read about gerrymandering suggests that the reason it's become so prevalent and dominant a force in politics today, both at the state level and at the federal level, is because advances in computer technology. And I'm wondering if a neutral standard might be circumscribing the technology that would be allowed to use to draw districts. If they were to say, "You have to do it the way you did it back in 1950," would that be a neutral standard that might find some purchase?

 

Misha Tseytlin:  Right. So I'll say this about the technology and how the technology interacts with the data that we do have. I do think it's intuitively appealing to think that everything -- technology is getting better. You've got more computing power in your iPhone than you had in 1970 in supercomputers. So you would think that political gerrymandering would be much more effective if it's done on computers, but in fact, the data doesn't really bear that out.

 

      In the Wisconsin case, the expert for the other side did a study from 1970 to the most modern period, which at that point was 2014, and he calculated how effective the gerrymander was under their social science metrics. And if you look at the data that he created, the effect of political gerrymandering, or at least on the social science metrics that the plaintiffs wrote, was no different in 1972 than in 2014. It kind of was pretty high in 1972, then it went down, then it went back up, then it went down, and then it went a little bit back up again.

 

      So I think that, for whatever reason, technology has not actually, at least the technology that's being used as of now, has not really made a marked difference from the more rudimentary computers that were used in 1970. And I think it's because drawing district lines isn't rocket science. Now, perhaps something will change in the future and something else will be invented but I think that that data shows that the intuition that the computing power is somehow making political gerrymandering much, much worse. That intuition is not backed up by the data.

 

      And I think the real reason that political gerrymandering has gotten more notice in recent times, I think, is just the power of new media to spread movements, and for people to be able to amplify their concerns in a way that goes viral and that allows them to communicate with like-minded people. That, I think, is the better, real world explanation of why there is more organization today around political gerrymandering than there perhaps was in the past, even though the data does not bear out the intuition that computers would have made it, quote, unquote, worse.

 

Caller 1:  Thank you.

 

Dean Reuter:  Once again, if you have a question, push the star button then the pound button on your telephone. We've got two questions pending. Let me ask, if I could, this is Dean, Misha, a follow-up question on the technology. I've seen statistics on the outcome in Wisconsin, and it seemed to me to be pretty successful redistricting. In this state, where I think Republicans were in control and they got a certain percentage of the vote and a certain higher percentage of the seats. So the interval between the number of seats, or the percentage of seats, they got versus the percentage of seats of the vote they got would reflect some increment of success, I suppose. That hasn't been facilitated by technology that didn't exist in 1970, you're saying?

 

Misha Tseytlin:  Well, what I'm saying is that they were using computers in 1970, they were just bigger computers. And the data demonstrates that the, as measured at least by the plaintiff's social science metrics in our case, it has not gotten more effective. But I'll also say that those statewide seat-to-vote ratios can be misleading and can reflect many other factors. The immediately prior map in Wisconsin, before the one that was challenged, was a court drawn map. And the ratios, the statewide vote to seat ratios favoring Republicans were largely the same as they are under the court drawn map. For example, in 2004 under the court drawn map, Republicans won 50 percent of the vote; they won 60 seats out of 99. In 2006, Republicans won only 45 percent of the vote; they won 52 seats, and this is under the court drawn map.

 

      So obviously, there's a lot more going on here in terms of political geography, in terms of Democrats actually clustering in cities like Madison and Milwaukee. That isn't to say that drawing maps with political considerations in mind doesn't have some measurable impact, but again, the data shows that that impact is not markedly different now with the current technology than it was back in the day.

 

Dean Reuter:  Interesting. We've got three questions pending, so let's take another call. And if you'd like to join the queue, again, push the star button, then the pound button on your telephone. Go right ahead, caller.

 

Andrew Brasher:  Hey, Misha. This is Andrew Brasher. How are you doing?

 

Misha Tseytlin:  Very good. Good to hear from you, General.

 

Andrew Brasher:  Yeah, so for people on the phone, I'm the Solicitor General of Alabama, and my state is very concerned with this, obviously, this issue. And one of the things that I wanted to get Misha's thoughts on is the difference between the Wisconsin case and the Maryland case in the sense that the Wisconsin case was a statewide challenge to every district. There was no effort or argument that in the Wisconsin case, the specific district's lines were sort of drawn in a warped way or that you put Republicans on one side and Democrats on the other.

 

      Whereas with Maryland, it's really just a challenge to an individual district and the argument seems to be that there were individuals moved in the district and out of the district for political considerations. And so is there a big difference, I guess, in your view, of the implications of the Court adopting some kind of political gerrymandering doctrine that would apply to the Wisconsin situation that are different than would apply to the Maryland situation where you're bringing a challenge to a specific district?

 

Misha Tseytlin:  Well, thank you for that. I do think that if the Court is going to get involved in political gerrymandering at all when it hasn't in our nation's history, that's going to be a big step. And I think if the Court is going to do that, it should certainly step carefully. And the most analogous doctrine we have is, of course, racial gerrymandering. And racial gerrymandering is, I think everyone would agree, a more serious kind of thing. To split people up by their race is kind of contrary to the core principles of this nation. And even in that context, the Supreme Court has said statewide challenges just aren't permitted. They're too broad-brush. And it would seem counterintuitive, to say the least, if the Court is going to get involved in the political gerrymandering context to allow statewide challenges of the kind that was brought to Wisconsin's map instead of sticking to the single district limitation that the Court has adopted in the racial gerrymandering context.

 

      And I also think that a doctrine like that would have, if the Court were to allow statewide challenges, it would have very perverse effects. For example, imagine a state, and maybe this applies to some extent in Alabama, but a lot of states in the South, race and politics are correlated. So if a plaintiff is arguing that the legislature engaged in racial gerrymandering, they only get access to a single district challenge. But if that same plaintiff is arguing that it is political gerrymandering, then you get access to the Holy Grail of a statewide challenge.

 

      And you would have these bizarre situations where the plaintiffs would be arguing to the Court, "What was really going on here is politics." And the state would say, "Well, we think nothing was going on, but if anything was going on, it was race," so that you are limited to an individual district. That would seem to flip the kind of constitutional order of priority on its head, and I think that is one of the reasons the Court should be very careful about concerning any sort of statewide challenge in the political gerrymandering context.

 

Andrew Brasher:  Can I ask one quick follow-up on that?

 

Misha Tseytlin:  Please, go right ahead.

 

Andrew Brasher:  So I think you're absolutely right on that. If there's an individual district challenge, so let's assume that the Court were to say, "We reject what the plaintiffs are arguing in Wisconsin, but we like the idea of a specific district challenge that we have in Maryland," couldn't the Court sort of just do the same thing that they do with race in the sense that they could say, as with sort of the race situation, we know that these legislators are going to be considering race because they have to under the Voting Rights Act, and we just say that you can a little bit, but you just can't too much.

 

      I mean, that's not like -- I understand that that would not be sort of the best result in the Maryland case, but it seems like the analogy to the race case sort of carries through in the sense that the Court hasn't said you cannot consider race in redistricting. They've said that you have to basically consider it lightly, and then whenever you consider it, expect to be challenged. And so have really, really good reasons for why you considered it, and maybe a bunch of data that suggests that you would have done the same thing for other reasons. So, I mean, I guess my point is doesn't the single district aspect of the Maryland case sort of solve some of the problems about the judicial standard, and then also the remedy that you would put in there?

 

Misha Brasher:  I mean, it might solve some of the things, like with standard [inaudible 33:33]. I don't think that is necessarily solves the 'how much politics is too much' because I think it's kind of important to be specific about what the Supreme Court has allowed in the racial gerrymandering context. The Supreme Court has actually said that race is verboten unless you can justify strict scrutiny.

 

      So, for example, let's say you had a state that had no significant minority population, like Vermont. They could not consider, as far as I understand the Supreme Court doctrine, they could not consider race even a little bit. The only reason that a state like Alabama can consider race is that they have to comply with the Voting Rights Act. And sometimes, in order to comply with the Voting Rights Act, you have to consider race. So that, the Supreme Court has said, satisfies strict scrutiny. So in the race context, it actually is quite bright-line, at least in the macro sense. The bright-line rule is you can't consider race unless you satisfy strict scrutiny. And then you have a very difficult strict scrutiny inquiry which has trouble with boundaries.

 

      The politics question is very different because politics, unlike race, is not a verboten class consideration that requires strict scrutiny. Some politics is in every state permissible, and a good amount of politics is permissible. So the concern in politics is if you just -- at least one could argue that if you do too much politics, you have too much political impact for mere considerations. So there the inquiry is very different from race, and it involves not how much of this consideration do we need to do to comply with the Voting Rights Act, which otherwise would be an impermissible consideration. It would be what's the line between permissible and impermissible politics, period. And so that's why I think, respectfully, that the racial gerrymandering cases do not provide the court with much guidance on the unsolved problem in the political gerrymandering context.

 

Dean Reuter:  We've got two questions pending. If you'd like to ask a question, again, push the star button, then the pound button on your telephone. Let's take another question now that I think comes from Maryland.

 

Roger Condevadian [sp]:  Hi, and thanks for a real good presentation. This is Roger Condevadian. I feel kind of frustrated trying to understand what you mean by the term political and politics. It seems to me it's kind of like trying to carry Jell-O on a pitchfork. It just keeps slipping through every time you pick it up. It seems like political -- isn't gerrymandering for a political district always political in its entirety? So you're using politics in a narrower sense, I guess, that somehow distinguishes it from race, but a couple of answers ago, we were saying that in states like Alabama that the political is the racial. So I wonder if we could just define politics and political in some way that doesn't move. We can hold it still for a minute.

 

Misha Tseytlin:  Yeah, I mean, that is one of the key challenges for plaintiffs in this area. There were actually questions asked to the challenger, the attorney Michael Kimberly, for the challengers in the Maryland case about this. So they were asked what kinds of political considerations do you still allow? What do you mean by impermissible politics? And his answer was, "Well, you can't have retaliatory intent." But what does that -- again, like you said, it's like Jell-O. Are you retaliating against voters? Are you trying to help your own incumbent? Are you trying to help perhaps an opponent to the incumbent of the other party?

 

      The notion of politics is very capacious, and like you said, like Jell-O. And if you're going to build a doctrine that's going to have these very disruptive effects, that's going to have a lot of well-funded litigation around it, you need to define it, in my view, a lot more specifically than it has been defined so far. And I'm not sure it's possible to define it in a specific enough manner, at least a lot of smart, well-motivated plaintiffs' attorneys have not, at least in my judgement, been able to succeed in that fundamental challenge.

 

Roger Condevadian:  Okay. Well, good. That makes me feel a little bit more comfortable. It's like the great Thompson Marsh used to say about Calhoun's debate for states' rights. He said, "Now I understand what you said, just tell me what you're talking about."

 

Misha Tseytlin:  I think that's a pretty good quote.

 

Dean Reuter:  We've got one question pending, then our lines will be wide open. Let's take another call now.

 

Caller 4:  Yeah, so I'm afraid the Solicitor General of Alabama mostly asked my initial question to which you quite comprehensively answered. So I guess my other question would be more rooted in sort of my confusion as to what the Court could do with this case, and that is if the Court was to delve to any degree into line drawing or rule making, for instance, under a principle of one person, one vote, how much of a variance can you have under some sort of gerrymandering scheme? How does that not open the door to statewide challenges throughout the Union? Because if you do have some sort of rule to any degree with respect to this case, I don't see how you could not have really just a flood of lawsuits pursuant to stopping political gerrymandering in every state. So good luck with that.

 

Misha Tseytlin:  Well, thank you. Obviously, we faced a lawsuit in Wisconsin, and I don't wish that upon our sister states. I think that what you raise is a very important concern, and one that weighs heavily on the mind of the Supreme Court justices. That's why Justice Kennedy has previously articulated that if there's ever going to be a standard in this area, it has to be limited and precise. And I think that while the Maryland and the Wisconsin plaintiffs' theories differ in very important respects, and I think the Wisconsin plaintiff's theory is more problematic in certain respects, they do have one core, shared failing. That is neither has proposed a limited and precise standard that would not just sweep across the country.

 

      The Maryland plaintiffs -- I'm sorry, the Wisconsin plaintiffs, by their own expert telling, would wipe out at least a third of maps, and in my view, likely more. And I think maybe wipe out's a little too strong a term. They would subject to immediate and uncertain litigation in front of courts, more than one-third of maps, and I think a good deal more than a third. And how any particular case would come out would be anybody's guess.

 

      The Maryland plaintiffs, their test is political consideration and more than de minimis effect. Political consideration is ubiquitous in line drawing, and more than de minimis effect is as unsearching as its title sounds. So you would just have hundreds and hundreds of districts around the country, state and federal level, challenged under more than de minimis political effect, and the courts would be flooded with those. And one of the fun and not fun things about those cases is that they go to three-judge panels instead of a single judge, and then they go directly to the U.S. Supreme Court on an appeal as of right. So the tax to the system, and I don't mean like -- the burden on the system of having three-judge panels convened, so many three-judge panels convened, and then direct appeals to the U.S. Supreme Court, and it's not just one round of direct appeals.

 

      For example, in the Maryland case, it comes up in a preliminary injunction posture, and they appealed as of right to the Supreme Court on denial of their preliminary injunction, so that's one appeal. And then, presumably, if there's a trial, and the losing party from that will also file another appeal, and that's just one district in one state. It makes things very easy to see what would happen in the real world if something like a First Amendment standard based on more than de minimis effect was recognized by the Supreme Court.

 

Caller 4:  If there was a ruling, if the Court ever created a standard for political gerrymandering, do you, and this is a total opinion question, in the future, in the following decades, do you foresee sort of a situation where challenges would start coming into courts on the basis of structuring districts based on how voters vote on particular hot-button issues? So for instance, today, while this certainly isn't the case with redistricting right now, but gun rights. Politicians structure their districts based off of how voters would vote on the most important issues tied to a party, and that might cross lines in certain issues. Wouldn't that logically make sense to then create a cause of action based off of districting in that way?

 

Misha Tseytlin:  I mean, obviously, at this point, states -- most state legislatures, maybe not all, are controlled by one or another political party, or at least each House is. And so the arguments are that you're attempting to draw the lines in order to favor your political party. If you had a different kind of historical moment in politics, like for example, it used to be in Congress that the most important coalition on a lot of things was not Republican/Democrat, but it was a conservative Democrat and a conservative Republican coalition, and that was often on size of government and then race issues. That was more in the 40s and 50s, maybe more the 50s.

 

      And so if you had different political coalitions drawing district lines around different issues and those were the important issues of the day, you could certainly see a First Amendment based theory spinning out beyond favoring political party and being based upon other kinds of political considerations that were to drive the lines. But I think you -- given that line drawing is something that requires a whole legislature to vote, I think, realistically, you'd need issues that were salient enough to a majority of a coalition of legislators in order to motivate the drawing of those kind of lines.

 

Dean Reuter:  Let me make another call for questions. We still have some time left. If you have a question, now is the time. The lines are open. Push the star button and then the pound button on your phone.

 

      While we wait to see, perhaps we've already had our final question from our audience, let me take it back to your oral argument in the Wisconsin case and a question that -- a statement, maybe it was a question, I don't recall, that Chief Justice Roberts made about what would people think, essentially, I'm paraphrasing here, obviously, if the Court weighed in to something like this, if the Court went one way or another. I suppose you probably have a better recollection of that exchange than I do. There had been some speculation pairing that statement or question with the fact that the Court then took the Maryland case. So it looks less political from the perspective of the Court if, in the Wisconsin case, you have one party as a victim and the Maryland case, you have another party as the plaintiff. Do you have any response to that or comments on that?

 

Misha Tseytlin:  Obviously, you can't know why the justices do what they do. I think that kind of consideration is not giving enough respect to the Supreme Court. That's more of the kind of thing that pundits are interested in. I think if the Supreme Court is putting the parties in amici to considerable effort to write briefs, some of the amicus briefs and hold oral argument, they're doing it not because of the happenstance of who's the political party in one case or another, but because there are some legally relevant distinctions that the cases raise.

 

      And I think you can see that from the oral argument. There were lots of questions at oral argument about the political science metrics -- social science metrics that were the plaintiffs' core of their theory. In the Maryland case, there were no questions about those metrics, and there were questions about the First Amendment based tests that the plaintiffs were pushing there. And I think that comports much more with my understanding and respect for the Court, which is that they do these things because they want a vetting of legal issues, not because they are trying to send some sort of political signal about the happenstance of who the political party is in any particular case.

 

Dean Reuter:  Well, I don't see any more questions on our board here, but I will ask you the final question, and that's -- I'm not going to ask you to make a prediction on anything other than timing given the late argument date in the Maryland case and the similarities yet differences between these two cases. Are they likely to wait to the last day or week of the term before we get a decision? Do you have any sense of that?

 

Misha Tseytlin:  I mean, traditionally, there are very important cases that come out on the last or the penultimate day of the term. I know as, obviously, an advocate in a case that was argued in October, even though it's obviously related to the Maryland case, the Supreme Court has, at least my understanding is, they have an argument line, that is to say, there is a line that says if there are going to be Supreme Court opinions released in the Supreme Court, reporters will post online whether there's going to be opinions released on a particular day.

 

      And every time that there is going to be an opinion released between now and June, I'll be a little bit nervous that morning because the decision in the Wisconsin case could come out at any time. So while it's certainly possible that they're going to issue these two decisions at the same time, it's also possible that they'll issue a decision in the Wisconsin case their next opportunity and that they hadn't issued it just because they didn't want to kind of complicate the Maryland argument. So as far as I'm concerned, I'm going to be nervous every one of those mornings until the decision comes out.

 

Dean Reuter:  Very good. Well, we will welcome you back when either or both of these decisions come out for your thoughts on what's transpired. These are fascinating matters, and I certainly appreciate your time.

 

      On behalf of The Federalist Society, and on my own behalf, I thank you for your time on both these cases. And I want to thank the audience as well for joining us today on the Friday before Easter. We certainly appreciate it. Thank you for your questions as well. And a reminder to the audience to check your emails and check in with our website about information on our next scheduled teleforum conference call, but until that next call, we are adjourned. Thank you very much, everyone.

 

Misha Tseytlin:  Thank you so much.

 

Operator:  Thank you for listening. We hope you enjoyed this practice group podcast. For materials related to this podcast and other Federalist Society multimedia, please visit The Federalist Society's website at fedsoc.org/multimedia.