Justice Anthony Kennedy, the Court’s perennial swing-vote, asked Texas Solicitor General Keller if the Court could require states to equalize both total population and voter population. Keller explained that would force states to abandon other important factors, such as keeping communities with similar interests together, and drawing districts that are compact rather than snaking across a state. In Keller’s view, requiring both would dramatically “change the nature of redistricting.”

Deputy Solicitor General Gershengorn asked the Court to require states to use total population to draw electoral districts. Such a ruling would essentially solidify the status quo of what the states already use. Gershengorn emphasized his agreement with Texas Solicitor General Keller that requiring states to equalize both total population and voter population is untenable. Gershengorn explained that the Court’s ruling could put a tremendous strain on state and local governments.