Rick Pildes, who attended the Evenwel argument, had these thoughts about one possible outcome that may be attractive to Justice Kennedy:
So the Court will either affirm the status quo or adopt an intermediate position to which Justice Kennedy appears drawn. That is the view that states have to at least consider voter equality as one factor to take into account. He consistently returned to this question and it seemed his central instinct about the case….
If the Court holds that states have to take voter equality “into account” as “a factor,” what would that mean on the ground? …. But I think the most the Court would ultimately hold is that if states can do more to promote voter equality, while not allowing their districts to vary in total population by more than 10% and while not violating traditional districting principles, then within those constraints, states would need to avoid unnecessary departures from voter equality.
In short: a compromise. The Court would not follow Burns v. Richardson, declining to choose between electoral and representational equality, and it would not make the choice. It would seek out a middle ground, captured in a nebulous legal standard, and decide this case in a way that invites more cases of the same kind. [Note: I am on the brief of the Democratic National Committee, which argues for the clear choice of representational equality and therefore a constitutionally required State use of total population in apportionment.]
Justice Kennedy seems motivated to cobble together case-specific outcomes, which leave vague law trailing in their wake, by a wish to police “extreme” or “extraordinary” fact patterns. At the Evenwel argument, he put this point to counsel:
You have population equality and voter equality, both, especially when you have indicated that a voter-based apportionment is–is valid and serves important purposes. And here it’s being completely– it’s being very substantially disregarded with this huge deviation. (Tr. at 34)(emphasis added).
Compare this with Kennedy’s explanation in Caperton v. A.T. Massey Coal Co. of how a constitutional due process violation was caused by heavy independent spending in the election of a state supreme court justice. “The facts before us are extreme by any measure,” he wrote: the circumstances were “extraordinary.” 556 U.S. 868, 887 (2009).
And Justice Kennedy went on in that case to defend the significance of extreme or extraordinary circumstances for constitutional adjudication:
It is true that extreme cases often test the bounds of established legal principles, and sometimes no administrable standard may be available to address the perceived wrong. But it is also true that extreme cases are more likely to cross constitutional limits, requiring this Court’s intervention and formulation of objective standards. [citations omitted].
Id.at 887.
In Caperton, there ensued the “intervention” without much in the way of an “objective standard.” The most that Kennedy could say on that point was that the relevant constitutional “inquiry centers on the [political] contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.” Id. at 884.
In Evenwel, the Justice appears troubled by voting population inequalities that are both “huge” and “completely [or] very substantially disregarded.” He may be the decisive vote for an “intervention” requiring states to take voter equality into account in apportionment. Likely missing from any such decision would be an objective standard, and its absence would invite more interventions in the future and keep the Court in the thick of the political fights certain to lie ahead.
A FURTHER NOTE AT WEEK’S END:
One of the more intriguing complaints found in a brief, from the Arizona Independent Redistricting Commission (in Harris v. Arizona Independent Redistricting Commission):
Appellants Ask This Court To Create A New Constitutional Rule Removing
Politics From Redistricting (p.54)