In previous cases when claims on partisan redistricting were made, the Supreme Court ruled that this is a political question for politicians to sort out, not one for the courts. Based on his questioning, Justice Anthony Kennedy, the court's key swing vote, gave the impression that he was looking for a way to invalidate Wisconsin's maps and possibly set an important precedent against this type of gerrymandering.
Alito said the metrics drawn from social science and endorsed by the lower court for gauging that electoral districts are too partisan are themselves full of questions.
But the courts have managed to enforce both the one-persion, one-vote rule and the more complex requirements of the Voting Rights Act that prohibit district lines that dilute the votes of racial minorities. Today, Oct. 3, plaintiffs in the case Gill v. Whitford were at the United States Supreme Court shining a light on what the foundation of a fair democracy should be - nonpartisan electoral maps that keep communities together rather than divide them.
"Suppose the court ... decided that this is a first amendment issue, not an equal protection issue", Kennedy said. In order to bring a lawsuit, a plaintiff must demonstrate they have "standing", that is, a tangible and particularized injury a court can relieve.
The case concerns the map approved in 2011 for the Wisconsin Assembly.
"But Kennedy left the ultimate outcome in doubt, giving few hints as to whether he was satisfied that the Democrats challenging the Wisconsin map had offered a manageable standard to separate unconstitutional maps from legitimate ones".
Gerrymandering is defined as the process of drawing legislative boundaries in a way created to magnify the impact of one party's voters while diminishing its opponent's - is as old as representative democracy.
Kennedy joined other justices in a key 2004 case in which the high court rejected in a 5-3 ruling a challenge to a Pennsylvania congressional redistricting plan whose challengers argued unfairly favored Republicans.
In Wisconsin, as in many states, the state legislature draws new maps every 10 years, giving the party in control an opportunity to reshape voting districts. In the 2012 election, Republicans won 48.6 percent of the statewide vote yet claimed 60 of 99 seats in the Assembly.
This wasn't just a problem in Wisconsin.
Democrats have launched groups, funded legal battles and thrown money at state parties in an effort to keep the disastrous redistricting of 2010 that all but guaranteed a Republican-controlled House for the next decade from happening again. Whether that means Justice Kennedy is ready to vote for limits to partisan gerrymandering remains to be seen, but if his retirement next summer is more than a rumour, Mr Smith's plea may be ringing in his ears. In 2014, for example, Republican candidates for the State Senate in MI won only the slimmest majority of the vote-fifty-one per cent-but secured seventy-one per cent of the seats. Two elections occurred under the plan before a suit was filed.
The high court previously heard arguments in the case in November 2016 when it was shorthanded, and failed to issue a ruling.
"We are the starkest example of partisan gerrymandering in the country under the efficiency gap", Geffen said. Would you say to them, What you want is to have the party holding power at any particular moment draw the district lines, so they can maximize their advantage and shut the other party out?
"That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country", Roberts added.
There was little doubt about where the rest of the court stood. His point was that the court could never agree on a workable standard to outlaw gerrymandering. In one of those rulings, a dissenting justice warned that the court was trespassing on an "essentially political process" and that lower courts faced with questions about redistricting would have to deal with a "mathematical quagmire".
Against that dark backdrop, like stars spreading across the night sky, 24 county boards from one end of Wisconsin to the other have passed resolutions this year in support of nonpartisan redistricting.
He pressed the state's lawyers about whether it would be unconstitutional for the state to simply declare that it was going to favor one party over another.
"It's insane to me that we've gone this many years and not had this in place", Anderson said. Justice Sonia Sotomayor said that allowing people to be detained indefinitely was a sign of "lawlessness". The Wisconsin map "was the most partisan" map possible.
That's what happened - when legislatures bothered to redraw the lines at all.