Opinions: Partisan Gerrymandering – Still Unresolved

The Court issued opinions in its two partisan gerrymandering cases — Gill v. Whitford and Benisek v. Lamone — on the same day near the end of the Term. Although these decisions were highly anticipated, the opinions themselves shed virtually no new light on either the justiciability of partisan gerrymandering claims or on the standard to apply if the courts do hear such cases.

Gill involved a challenge to the Wisconsin legislative redistricting map created by the Republican-controlled legislature after the 2010 Census. The plaintiffs alleged that the map deliberately undermined Democratic voting strength by either cracking (dividing Democratic voters between districts to prevent majorities) or packing (concentrating Democratic voters into a small number of districts to reduce their influence around the state). As SCOTUSBlog’s Amy Howe points out, in 2012, 49% of voters cast Republican ballots for the state legislature, but the GOP won 60 out of 99 seats. In 2014, 52% of the electorate voted Republican, but the party picked up three more seats winning a total of 63 seats in the legislature. William Whitford, a Wisconsin resident, sued Beverly Gill, a member of the Elections Commission in Wisconsin, for violating the Constitution. But even after the Court’s ruling, it remains unclear whether partisan gerrymandering is a justiciable issue.

Chief Justice John Roberts’ opinion for a 9-0 court held that the plaintiffs had not established Article III standing. In particular, the Court held that the plaintiffs had not demonstrated an injury — an “invasion of a legally protected interest,” which “affect[s] the plaintiff in a particular and individualized way” and was concrete in nature. The plaintiffs had argued that the challenged gerrymandering negatively impacted voters statewide, but the Court held that at least on the record presented, in which the injury was asserted by a plaintiff whose district was overwhelmingly Democratic and would remain so under any conceivable map, involved only a “citizen’s abstract interest in policies adopted by the legislature [which,] on the facts[,] here is a nonjusticiable ‘general interest common to all members of the public.’” The opinion suggested that a plaintiff can challenge only the constitutionality of the district he or she lives in. The Court then remanded the case to allow the plaintiffs another chance to establish standing.

Although the decision was 9-0, Justice Kagan, joined by the three other liberal justices, filed a separate concurrence listing a framework for the plaintiffs to amend their claim on remand. Justice Kagan also argued that if plaintiffs pressed a First Amendment’s freedom of association clause, they — or other plaintiffs, including organizations like political parties — could challenge a statewide map, rather than just individual districts. Justice Gorsuch and Thomas also concurred in part and concurred in the judgment, objecting to the majority’s decision to remand the case instead of dismissing it outright.

Adam Liptak of The New York Times called the decision a “setback for critics of gerrymandering,” and that the “status quo remained in place” on the issue. Garrett Epps of The Atlantic called the decision an “example of the justices keeping their heads down.” Mark Joseph Stern of Slate discussed the peculiarity of why the plaintiffs’ argument failed when many thought it would succeed. In 2004, writing the concurrence in Vieth v. Jubelirer, Justice Kennedy signaled he would be open to allowing partisan gerrymandering claims if litigants could present a “workable standard.” The plaintiffs in Gill proposed a way of measuring each party’s “efficiency,” by looking to the proportion of “wasted votes” – votes either for losing candidates or votes unnecessary for the victory of a winning candidate. They proposed a rule of thumb that a 7% “efficiency gap” between the parties was presumptively problematic, and they showed that Wisconsin’s efficiency gap was roughly 13%. This measurement does not clearly demonstrate a “particularized injury” inflicted on the plaintiff, however. Kagan’s roadmap may provide a workable argument for the plaintiffs going forward.

In a short per curiam opinion filed in the wake of Gill, the Court affirmed a district court ruling in Benisek v. Lamone. The appeal in this case was brought by Republican voters in Maryland who alleged that their district, the Sixth Congressional District in Maryland, was gerrymandered along partisan lines in retaliation against them for their support of a Republican incumbent. In the case below, the Plaintiffs had requested a preliminary injunction that would stop Maryland’s election officials from holding Congressional elections under that district map. The lower court denied the motion for preliminary injunction and stayed the case pending the results of Gill. The Supreme Court granted cert in Benisek after it had heard oral arguments in Gill, leading some to hope that the Supreme Court would finally declare extreme gerrymandering in Congressional districts unconstitutional. However, much like they had in Gill, the Court sidestepped the substantive issues presented in the case, focusing only on the District Court’s denial of the preliminary injunction.

The tersely worded opinion held that the District Court did not abuse its discretion in denying the preliminary injunction because the plaintiffs had not shown that the balance of equities and the public interest tipped in their favor. The Court noted that the plaintiffs did not request the preliminary injunction until 2016 – five years after the new election map had been drawn, and three years after the lawsuit was originally filed – and that any injunction would have been disruptive to the 2018 elections. This case now returns to the District Court in Maryland for plaintiffs present the remainder of their case, including their retaliation claims.

Justin Levitt, a law professor for Loyola Law School in Los Angeles makes his case for why the fight to end partisan gerrymandering is far from over in his article for the Washington Post.  A a graphic explanation of the Benisek opinion by Subscript can be found here.

ISCOTUS Fellows Eva Dickey and Michael Halpin, Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018, and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

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