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Speaker 1: On October three, the Supreme Court will be hearing arguments

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Speaker 1: about whether judges can throw out legislative maps for being

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Speaker 1: so partisan they violate the Constitution. It's one of the

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Speaker 1: most watched cases of the term. A three judge panel

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Speaker 1: had ruled two to one that a Wisconsin map was

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Speaker 1: designed to keep Republicans in control of the state legislature

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Speaker 1: even if they didn't win a majority of the votes.

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Speaker 1: The Supreme Court has never struck down a legislative map

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Speaker 1: for being too partisans Josh Douglas joins us. He's a

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Speaker 1: professor at the University of Kentucky Law School who teaches

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Speaker 1: about this area of election law. Josh tell us about

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Speaker 1: the case, so thanks for having me June. This case

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Speaker 1: is really interesting because it presents the first time that

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Speaker 1: the Court may strike down a partisan ja mander as

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Speaker 1: going too far. The problem previously is the Court has

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Speaker 1: said that there are no judicially manageable tests, no way

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Speaker 1: for judges to determine when politics has gone too far

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Speaker 1: in the line drawing process. In this case presents an

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Speaker 1: opportunity for the Court to adopt a new test that

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Speaker 1: would root out that politics or politics going too far

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Speaker 1: when lets plasters draw the maps and Josh. Since dollar

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Speaker 1: question seems to be whether there are those judicially manageable standards,

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Speaker 1: what is the test that the plaintiffs in this case

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Speaker 1: are proposing. So they came up with a new standard

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Speaker 1: called the efficiency gap, which the lower chord that struck

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Speaker 1: down the map adopted in part or at least adopted

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Speaker 1: the efficiency gap as part of their test. What the

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Speaker 1: efficiency gap looks at is the number of a wasted

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Speaker 1: votes for each political party to find the vote that

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Speaker 1: didn't help elect someone. So a wasted vote would be

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Speaker 1: any amount above fifty percent that the women candidate received

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Speaker 1: because they didn't need any more than plus one, as

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Speaker 1: well as any vote for the losing candidates. And what

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Speaker 1: a map that is symmetrical that doesn't you towards one

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Speaker 1: political party or the other would do is have about

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Speaker 1: roughly equal amount of wasted votes. And what the purchase

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Speaker 1: proposed is if that a map is an outlier, if

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Speaker 1: the number of wasted votes for one party is so

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Speaker 1: much higher than for another party, then that's highly suggestive

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Speaker 1: that politics was what was driving the map and not

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Speaker 1: normal line drawing and lawful mind drawing Cigeria Josh. The

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Speaker 1: gerrymandering issue has split the Supreme Court in the past.

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Speaker 1: Is it likely even with this addition here? Is it

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Speaker 1: likely to be a very close decision, with perhaps Justice

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Speaker 1: Kennedy the decisive vote. I think Justice Kennedy is the

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Speaker 1: absolute key here. In a two thousand four case out

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Speaker 1: of Pennsylvania, the court split kind of four one four,

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Speaker 1: So four justices the traditional conservatives wrote that there are

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Speaker 1: no test out there that judges can't decide whether politics

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Speaker 1: has gone too far. There's no judicially manageable standards. The

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Speaker 1: four others us is uh so called liberals each come

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Speaker 1: up with their own tests, said, here's one way we

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Speaker 1: can test for unlawful partisan jerrymandering. Justice Kennedy in the middle, said, well,

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Speaker 1: I don't like any of the tests that the plaintiffs

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Speaker 1: in that case or the liberal justice are proposing, but

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Speaker 1: I also don't want to close the door to a

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Speaker 1: test ever emerging. And so in this sort of strange

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Speaker 1: concurring opinion he wrote, he said, I disagree with the

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Speaker 1: four conservatives that there's never a test, but I disagree

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Speaker 1: with the four liberals that that that any of those

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Speaker 1: tests are good. And so he actually invited plaintiffs and

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Speaker 1: scholars to try to come up with a new test

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Speaker 1: for partisans jerrymandering. And so the million dollars questions in

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Speaker 1: this case, it does this efficiency get tests satisfy what

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Speaker 1: justice Kennedy was looking for? Josh What's the underlying constitutional

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Speaker 1: claim here? So if the court strikes down these districts,

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Speaker 1: it will say they are unconstitutional. Why, well, they violated

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Speaker 1: equal protection. So the basic harm here it's either equal

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Speaker 1: protection or or the First Amendment, I should say. The

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Speaker 1: basic harm is that the legislature is drawing line in

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Speaker 1: an effort to dilute the strength of the political minority

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Speaker 1: um and so as to entrench themselves in power, especially

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Speaker 1: if political winds shift and they are no longer supported

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Speaker 1: by a majority of the state's voters, they can still

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Speaker 1: retain the majority in the legislature. And so the constitutional

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Speaker 1: harm here is that dilution of someone's power of voting

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Speaker 1: based on their politics. Joshua and about a minute or so,

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Speaker 1: explain why the Conservatives have said in the past that

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Speaker 1: partisan gerrymandering is insulated from judicial review. One think they

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Speaker 1: said that some politics is okay to consider in the

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Speaker 1: line drawing process. So you might want to consider u

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Speaker 1: preserving the core of prior districts so that you're not

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Speaker 1: shifting who your representative is. You might want to consider

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Speaker 1: avowing incumbents to protect their districts, or to not draw

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Speaker 1: a districts with two incompasses so that they have to

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Speaker 1: run against each other. And there's some goodwill that comes

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Speaker 1: from having stability in the legislature. Uh and and a

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Speaker 1: new match should undo the stability. And the problem for

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Speaker 1: the Conservatives was, how do you tell when good politics

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Speaker 1: has driven it as opposed to bad politics? UM and

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Speaker 1: the Conservative justice, particularly Justice Scolia, who wrote that plurality

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Speaker 1: attending in that two thousand four case, life's clear rules,

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Speaker 1: and he couldn't find any clear rules to separated the

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Speaker 1: good politics from the bad. Thank you so much for

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Speaker 1: being on Bloomberg Law. As always, That's Josh Douglas, professor

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Speaker 1: at the University of Kentucky Law School,