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Analysis

Supreme Court’s Punt on Gerrymandering Offers Path Forward

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

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)