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Analysis

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)