Vieth v. Jubelirer

Paul M. Smith represented the plaintiffs before the Supreme Court, arguing that the ruling by the District Court for the Middle District of Pennsylvania "effectively overruled [Davis v.] Bandemer", which had found the issue of partisan gerrymandering within the judiciary's remit: five justices were unwilling to determine that partisan gerrymandering claims were nonjusticiable, instead simply not coming to a clear criteria. In contrast, the District Court's ruling in this case require, according to Smith, factual showings of plaintiffs in these cases that are [...] impossible," effectively making gerrymandering claims nonjusticiable. He contended that a "shut-out" standard was applied, to the extent that to prove disenfranchisement of voters through gerrymandering, one must prove disenfranchisement to the extent of voter suppression or suppressing campaigns. Application of this standard doesn't allow scrutiny of an electoral map because gerrymandering doesn't require such overt constitutional violations to manipulate vote share. The plaintiff's proposed standard, that one must be able to demonstrate with a congressional map that it would be impossible to get more than half the congressional seats with less than half the votes, came under heavy scrutiny for its supposed inapplicability.

The plaintiff also struggled to convince the Court that one could use prior voting records to decide the electoral outcome of a new redistricting scheme. Both Justice Scalia and Justice Breyer wondered how accurately this would be able to predict outcomes in future elections. Scalia stated the following:

Race does not change. You [..] are the race you are, and you're not going to change it next year. Political party doesn't work that way. How [...] do you decide what is the Republican vote? Is it just registered Republicans and is everybody that's registered a Republican now have to stay [...] I just don't understand how you run this scheme? You cannot really tell until after the election is done how many Republicans and how many Democrats there are in each district.[1]

Smith justified this by emphasizing that future cases contending electoral maps would leave the burden of proof on the plaintiffs to prove that the districting scheme was unfair. The Court also questioned how districts could be redrawn to be fair even if a court were able to find a standard by which an electoral map could be struck down.

John P. Krill, Jr. of K&L Gates represented Robert Jubelirer and John Perzel at the Supreme Court. The defense's argument rested on the claim that redistricting "requires inherent political choices to be made [which] are inappropriate for the judiciary to make"[1] under the political question doctrine. This rather extreme position posited that even if the entire legislature came forward and admitted to political gerrymandering, it would not be the place of the judiciary to strike down the redistricting. The crux of this argument is that there is no constitutional requirement to draw districts impartially with regards to political party.

Furthermore, the defense took the ruling and successive elections regarding Indiana's contested electoral map in Bandemer to be instructive. Krill cites that Democrats, who were supposedly heavily gerrymandered against, won 50% of House seats from Indiana, and successively won control the following election. He also challenged the plaintiff's test used in the complaint as broken as it uses 10 years of election data, counting voters who could have died, moved, or otherwise not become involved in future elections. He also contends that the plaintiff's test assumes Democrats are evenly dispersed across the state when they are normally compacted into urban areas instead.

J. Bart DeLone from the Pennsylvania's Attorney General's Office represented Pedro Cortés and Monna Accurti (Commissioner of the Bureau of Commissions, Legislation and Elections) at the Supreme Court. He argued that even if the Court holds political gerrymandering justiciable, a districting scheme could only be found unconstitutional if "the disadvantaged group has been shut out of a political process as a whole."[1] He also contends that Krill's claim that there is nothing wrong with judicial intent to gerrymander an electoral map is correct as districting is inherently political.