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Five Possible Supreme Court Rulings on Partisan Gerrymandering

The Supreme Court could take several paths in its partisan gerrymandering opinions.

June 14, 2019

The Supreme Court is poised to issue opinions any day now in this term’s blockbuster partisan gerrymandering cases from North Carolina and Maryland. Ideally — as the Brennan Center has advocated in its filings with the court — the justices will rule that extreme partisan gerrymandering is unconstitutional, set out a clear legal standard for determining when partisan manipulations of our maps cross a legal line, and strike down North Carolina and Maryland’s congressional plans.

But that is not the only way these cases could turn out. In fact, there are many potential outcomes. Here are five scenarios that are among the more likely and what they could mean for the future of fair maps. We have ordered these scenarios roughly in terms of how quickly — if ever — they could provide relief from gerrymandering.

Scenario 1: A majority of the court endorses one of the legal standards that voters have offered it and strikes down at least one map.

In this scenario, the court would rule, first, that one of the legal standards that the voters used to challenge their state’s map is the right one and, second, that at least one of the maps at issue is unconstitutional on the facts. This would be the fastest route to relief for voters: any map that the court strikes down will be sent off to the legislature to be redrawn, with the resulting map potentially in place well ahead of the 2020 primaries. Any map the court doesn’t strike could be sent back down to the trial court for more work. That case would still have a chance for more Supreme Court review before 2020. But the time window would be narrow, requiring the case to move significantly faster than normal.

Scenario 2: A majority of the court endorses a legal standard that is closely tied to the facts of one of the cases and strikes down one map.

In this scenario, the court would announce a new legal standard that is closely tied to the egregious facts of one of the cases. For instance, the justices could rule in the North Carolina case that a constitutional violation occurs when (a) the mapmakers expressly intended to create and entrench a seat advantage that was statistically highly unlikely to achieve accidentally and (b) actually succeeded in doing so. (This would be a new theory in the cases, because the plaintiffs have never argued, among other things, that map makers must state their bad intent explicitly in order for a constitutional violation to occur.) Under this scenario, the case that matches these facts would end with a win for voters and a new map drawn in time for 2020. The court could send the other case back down for more fact-development work in the trial court, again with a narrow window for Supreme Court review in the fall.

Scenario 3: A majority of the court announces a legal standard that we haven’t yet seen and sends both cases back down for more work in the trial courts.

In this scenario, the court would announce a legal standard that departs drastically from the standards that are already in play, perhaps making relevant certain legal issues and facts that the courts and the challengers hadn’t previously considered. Both cases would go back down to the trial courts for more fact development and legal briefing in light of this new standard, with a narrow opportunity for the justices to weigh in again next term.

Scenario 4: A majority of the court neither agrees on a legal standard nor decides to close the federal courts forever to partisan gerrymandering claims.

Under this scenario, the court would essentially maintain the position it has held since it issued its 2004 opinion in Vieth v. Jubelirer. There would be neither enough votes to set a legal standard nor enough to end federal partisan gerrymandering litigation altogether. The court would dismiss both the North Carolina and Maryland cases, marking losses for the voters who brought them. This ruling would represent another punt on the major constitutional issue and potentially delay any further litigation until after the next round of mapping is completed in 2021.

Scenario 5: A majority of the court declares partisan gerrymandering claims non-justiciable.

Under this scenario, the court would rule that federal courts are not capable of deciding partisan gerrymandering claims and thus should not hear them — in legal parlance, declaring these claims “non-justiciable.” The court would undo the North Carolina and Maryland voters’ victories in the trial courts and terminate their cases. This ruling would result in the federal courts being shut completely to these kinds of claims. The court came close to a ruling of this kind in Vieth, with four Justices, led by Justice Scalia, contending that partisan gerrymandering claims were non-justiciable.

Bonus: Michigan, Ohio, and Wisconsin

North Carolina and Maryland aren’t the only partisan gerrymandering cases in the federal courts right now. There are also challenges in Michigan and Ohio, which both resulted in wins for voters after trial, as well as Wisconsin, which is set for trial in July. The Supreme Court’s opinions in North Carolina and Maryland will be the new law of the land and will govern all three of the remaining cases.

What happens to those cases will depend on the court’s ruling. If the court sets a legal standard for partisan gerrymandering cases, the justices could well send Michigan and Ohio back to the trial courts for more proceedings under that standard. And the standard would shape the Wisconsin case by determining what the plaintiffs would have to show to win. If the court closes its doors to gerrymandering claims, all three of these cases would be dismissed and the voters’ recent victories in Michigan and Ohio undone.

For more on the court’s partisan gerrymandering cases, visit our comprehensive coverage in Gerrymandering at the Supreme Court.

(Image: Ryan McGinnis/Getty)