Wisconsin Has Taken Its Partisan-Gerrymandering Case to the U.S. Supreme Court—Here’s What Happens Next

March 27, 2017

This blog was revised to reflect updates in Whitford V. Gill on March 27, 2017.

With February's filing of a notice of appeal by the State of Wisconsin in Whitford v. Gill, the U.S. Supreme Court may be poised to take its first look at the constitutionality of politically driven line-drawing in more than a decade.

Wisconsin is seeking the Court’s review of a recent 2-1 ruling holding that the state's 2011 assembly redistricting plan was a partisan gerrymander that violated both the First and the Fourteenth Amendments. The 116-page majority opinion described the gerrymander as “an aggressive [one]” that guaranteed a Republican majority in the state assembly “in any likely electoral scenario.”

The panel’s ruling for the plaintiffs was a signal event. It marked the first time in more than three decades that a federal court ruled for the plaintiffs in a partisan-gerrymandering suit after a full trial. It also dealt a critical blow to a very particular kind of gerrymander—call it “extreme seat-maximization”—that emerged in Wisconsin and a handful of other states in the most recent redistricting cycle. And the panel cited as “corroborative evidence” a new social-science measure—the “efficiency gap”—which a team of academics developed to respond to suggestions from several Supreme Court Justices that “partisan symmetry” could be used to police gerrymandering.

Now that the state’s notice of appeal is on the docket, the Court may be primed to revisit the merits of a partisan-gerrymandering claim and finally lay out the “judicially manageable test” for detecting unconstitutional gerrymandering—or, at least, its most extreme kinds—that it has been searching for ever since it badly fractured over the issue in Jubelirer v. Vieth (2004) and League of United Latin American Citizens v. Perry (2006).

We can already get a sense of the possible timeline for key events in the case by referring to the Supreme Court’s rules and calendars, as well as by assuming that the parties take their full time for each filing from here on out.

  • March 24, 2017. The date Wisconsin filed its jurisdictional statement — which includes a formal request that the Court hear the case — and the date the Court docketed the statement.
  • May 8, 2017. The close of briefing on the request for the Justices to hear the case.
  • May 11, 2017. The conference where the Justices would first consider whether to hear the case.
  • May 15, 2017. The earliest date following the May 18 conference for the Court to announce its decision to hear the appeal and take briefing on the merits.

If the Court decides on May 15 to hear the appeal:

  • June 29, 2017. The deadline for the state’s opening brief on the merits.
  • July 31, 2017. The deadline for the plaintiffs’ opposition brief.
  • August 30, 2017. The deadline for the state’s reply.
  • October 2017 to November 2017. Assuming the preceding schedule holds, the Court will likely hear oral argument in this time frame.  

These timelines are not set in stone. For example, the Justices could slow the case down if they follow their typical practice of taking more than one conference to request merits briefing. If the Court relists the case once, the parties would wrap up briefing on September 4, 2017. If the Court were to wait until the end of the term to announce that it’s taking the case, the parties would conclude briefing on October 11, 2017.

If the Justices do take up the case, they will be doing so at a critical juncture in American politics. Since the last redistricting cycle, partisan gerrymandering and its ill effects have reached new, intolerable extremes in Wisconsin and elsewhere, with legislators taking advantage of political dysfunction and increasingly powerful mapping technology to lock-in advantages over their political opponents.

Stay tuned for more as one of the potentially most important redistricting cases of the decade develops.


Image: Matt Popovich, CC 2.0