Mapping the Road Ahead for Partisan Gerrymandering Cases
At least five gerrymandering cases in pivotal swing states could end up at the Supreme Court in coming terms.
In the waning days of June, the Justices issued a string of opinions and orders that have reset the state of play in partisan-gerrymandering litigation around the country.
Heading into this term, all eyes were on Gill v. Whitford, a case from Wisconsin that promised the Court its first opportunity in over a decade to put some limits on partisan gerrymandering, which has reached extreme proportions in the last decade. Benisek v. Lamone, a case from Maryland, joined Whitford before the Court soon after, with a third case from North Carolina waiting in the wings. In one seven-day period, though, the Court sent each case back to the lower courts without issuing the big constitutional ruling on gerrymandering limits that everyone was waiting for.
That means trial courts are once again the center of the litigation action, with five partisan-gerrymandering cases presently pending: three well-known ones — from Wisconsin, Maryland, and North Carolina — and two relative newcomers — from Michigan and Ohio. Despite fresh questions raised by Justice Anthony Kennedy’s recent retirement, each of these cases keep hope alive that voters might find some relief from gerrymandering before the 2020 elections and — perhaps more importantly — before maps are redrawn en masse in 2021.
Here’s where all the cases stand at the end of June, including links to help you get better acquainted with their facts and filings, as well as some back-of-the-envelope estimates about their potential timelines for Supreme Court review.
Wisconsin – Whitford v. Gill
The Wisconsin partisan-gerrymandering case that captured the nation’s attention ended up occasioning one of the Court’s most disappointing side-steps of the term. Rather than finally setting out a standard for identifying extreme partisan gerrymanders and striking down Wisconsin’s egregiously gerrymandered state assembly map, the Court vacated the Wisconsin voters’ trial victory on standing grounds.
At the core of the Court’s ruling, which will shape this case going forward: the plaintiffs — Democratic voters — had claimed that their individual votes had been “diluted” by Republican gerrymandering, but they didn’t produce evidence to support that claim and didn’t challenge the specific districts in which they lived. Instead, their trial evidence showed how the assembly map had disadvantaged the Wisconsin Democratic party on a state-wide basis. To establish their standing, the Court ruled, the voters will have to fix that shortfall in their evidence and challenge their particular districts.
The case now returns to the trial court where the attorneys who brought the case will have an opportunity to respond to the Court’s ruling, produce the evidence the Court is seeking and, potentially, find additional plaintiffs to challenge more of Wisconsin’s 99 assembly districts. How much time this process takes will have a direct impact on when the Wisconsin plaintiffs can get their case back before the Court, whether this coming term (which starts in October 2018), or next (starting October 2019). That timeline will become clearer in the next month or so as the parties work with the trial court to hash out next steps. Visit our case page for more on Whitford.
Maryland – Benisek v. Lamone
The Maryland case vaulted into the Court this past term after the plaintiffs — a group of Republican voters — tried and failed to get Maryland’s extremely gerrymandered congressional map redrawn ahead of their trial. Instead of ruling on the big constitutional issue and ordering that redraw, the Court affirmed the lower court’s decision to keep the current map in place and sent the case back down to get ready for trial.
The case will return to the trial court in an advanced state: the parties had fully briefed their summary judgment motions, which the court could use to resolve the case without trial. If that doesn’t happen, a trial will follow. When that trial is scheduled, how long the trial takes, and how long the court takes to issue an opinion will determine when Maryland might be ready for another look from the Supreme Court, whether in the October 2018 term or the October 2019 term. Visit our case page for more on Benisek.
North Carolina – Common Cause v. Rucho and League of Women Voters of North Carolina v. Rucho
The third case in the mix is actually two cases, both of which challenge North Carolina’s 2016 congressional map and which went to trial together. The North Carolina cases resulted in a trial victory for the plaintiffs — which included Common Cause, the North Carolina Democratic Party, and groups of Democratic voters from around the Tar Heel State, who claimed the state’s map was illegal — and a swift appeal from the state. Although the plaintiffs asked the Justices to hear the case, the Court instead sent it back to the lower court, asking the panel to reconsider its earlier rulings in light of Whitford.
The lower court has already asked the parties for additional briefing on several issues, including whether Whitford should alter its earlier ruling and whether the litigants need to pull together additional facts. How the court sorts through these issues once the briefs are filed on July 11 will have a direct effect on the cases’ path to the Supreme Court. A quick turnaround could put the cases on a trajectory to be heard by the Supreme Court later in the October 2018 term; more extensive proceedings could push it into the October 2019 term. Visit our case pages for Common Cause v. Rucho and League of Women Voters of North Carolina v. Rucho for more.
Michigan – League of Women Voters of Michigan v. Johnson
Late last year, after the Wisconsin and Maryland cases had already hit the Supreme Court and North Carolina was getting close, a group of Democratic voters and the Michigan chapter of the League of Women Voters filed their challenge to Michigan’s congressional and state legislative maps. The trial court in the Michigan case moved things along while the Supreme Court worked on Whitford and Benisek. In a key ruling that ended up anticipating Whitford, the court blocked the Michigan plaintiffs from challenging the maps as a whole, instead ordering them to proceed with a district-by-district challenge.
The parties are now preparing for a trial that is set to begin on February 5, 2019. On this timeline, the case might be ready for Supreme Court review in the October 2019 term. Visit our case page for more on League of Women Voters of Michigan.
Ohio – Ohio A. Philip Randolph Institute v. Kasich
The latest addition to the partisan-gerrymandering line-up emerged just this past May: the ACLU’s challenge to Ohio’s congressional map. The ACLU’s complaint — which it recently amended to account for the Supreme Court’s recent rulings — challenges the map as a whole and on a district-by-district basis, on behalf of a coalition that includes 17 Democratic voters, several state-wide organizations, and several organizations representing Democratic voters.
The plaintiffs have already asked the trial court to speed up the pre-trial process, with the goal of holding trial by February 2019. That would preserve their opportunity for Supreme Court review in the October 2019 term. Visit our case page for more on the ACLU’s suit.