Slate: Is Anthony Kennedy Ready to Put an End to Partisan Gerrymandering?


Kennedy’s willingness to join Alito’s admonition means, at the very least, that a progressive outcome in Whitford is far from assured. On Tuesday, I asked Paul Smith, who is working with the Campaign Legal Center to bring Whitford before the Supreme Court, whether Kennedy’s vote in Harris unsettled him. Smith pointed out that the question in Whitford was whether legislatures could use race as a proxy for party in redistricting, not whether party affiliation itself is an invalid consideration.

“I am skeptical that one can glean much from this case about where the court, and Justice Kennedy in particular, will land in Whitford,” Smith told me. “At most, the dissent stands for the proposition that as long as it’s legal for a majority of legislators to seek to inject partisan bias into a map, they should not be deprived of that chance based on a debatable claim of racial predominance. One might argue that the case demonstrates the difficulty of separating race and party in some states and may encourage the court to reach a ruling that both goals raise constitutional problems.”

Smith is obviously correct that Harris doesn’t dictate the outcome of Whitford. But Kennedy’s vote could still presage trouble for the case. In his Vieth concurrence, Kennedy seemed revolted by the constitutional harms inflicted by gerrymandering. Now he has joined a dissent contending that the real harm would arise from courts trying to stop overtly partisan redistricting. Monday’s decision was a triumph for democracy. But the bigger fight looms just ahead—and Kennedy’s vote appears to be as shaky as ever.

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