Supreme Court’s Punt on Gerrymandering Offers Path Forward

The Wisconsin decision ends the notion that all partisan gerrymanders are acceptable.

June 21, 2018

At first glance, two eagerly awaited Supreme Court decisions in the Wisconsin and Maryland partisan gerrymandering cases earlier this week seemed an anticlimax, with the Court sending both cases back to lower courts on technical grounds.

But focusing solely on mechanics overlooks the fact that the Court’s opinion includes critical new information about the Court’s thinking on partisan gerrymandering, an issue that has long stymied the justices. The Court’s deadlock in Vieth v. Jubelirer in 2004, in fact, was so seemingly irresolvable that many lawmakers concluded that they had no restraints on partisan gerrymandering. That decision, combined with new advances in data crunching, led to the unprecedentedly extreme gerrymanders in 2011 that warp American politics today.

The Wisconsin decision ends the notion that all partisan gerrymanders are acceptable.  (The Maryland case was decided on more procedural grounds.) For all the sighing in some quarters about the rulings, the Court points the way to not one but at least two potential avenues for attacking partisan gerrymandering.

Let’s start with Chief Justice John Roberts’s majority opinion in the Wisconsin case, which all nine justices joined.

Although the Wisconsin plaintiffs attempted to bring claims challenging the redistricting map as a whole, the chief justice wrote that “[t]o the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific.” In other words, map challengers must show that the districts where they live were directly affected by the gerrymander. Because there was no evidence of that in the Wisconsin case, the Court returned the matter to the trial court. The plaintiffs will then have another chance to prove they’ve been personally harmed by extreme partisan gerrymandering.

That result provides an important clarification about the kind of gerrymandering the Court believes is unconstitutional. For example, a Democratic voter in heavily Republican West Texas might not have a gerrymandering claim based on vote dilution. No matter how congressional districts are drawn in West Texas, the overwhelmingly Republican population means the districts will remain Republican. But a Democratic voter in Austin or the Dallas-Fort Worth region, where Democratic voters were ruthlessly split apart or crammed together to engineer a Republican advantage, might well assert a successful claim.

Justice Elena Kagan’s concurrence for the four liberal justices laid out a second, and possibly broader, path for challenging partisan gerrymanders. She suggested claims could be brought based on infringement of “First Amendment rights of association held by parties, other political organizations, and their members.”

Unlike vote dilution claims, which are rooted in the Fourteenth Amendment, Kagan wrote that First Amendment claims can be brought on a statewide basis since the harm is “that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects” (i.e., winning elections). In other words, an individual might not be able to bring a statewide claim but political parties are not similarly constrained.

Of course, Kagan’s path would require winning the vote of a fifth justice — but the chance to win that fifth vote is just around the corner. Next term, perhaps as early as the fall, the Court will hear a North Carolina case that involves one of the most aggressive gerrymanders of the decade. That case, unlike the ones from Wisconsin and Maryland, involves a statewide claim by a political party as well as district-specific claims by individual voters. That puts the North Carolina case squarely within the parameters set by both Roberts and Kagan.

In addition, it’s all but certain that Wisconsin and Maryland will have another round before the Court. In Wisconsin, the plaintiffs are allowed to amend their claims to align with the Court’s guidance. The Maryland suit will head to trial. Perhaps as early as next spring, the two cases could again be before the Court.

Regardless, this week’s rulings are big wins for voters. The Court has given citizens seeking to challenge extreme gerrymandering a clear blueprint of what they must allege to have their claims considered by a court.

Although the technical resolutions of these cases may not be satisfying, it is clear the Court wants to bring clarity to one of the knottiest issues in American jurisprudence. And that’s a win for everyone.

(Photo: iStock)