Supremes Duck Major Rulings On Partisan Gerrymandering

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Kevin Daley Supreme Court correspondent
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The U.S. Supreme Court sidestepped a pair of landmark partisan gerrymandering challenges Monday, declining to find politically driven line-drawing during the decennial redistricting process violates the Constitution.

Although the rulings avoided the sweeping reach opponents of gerrymandering hoped for, they do provide a plausible path forward for future challenges.

The first decision, Gill v. Whitford, arose from Wisconsin, where a coalition of Democratic voters challenged the entire state legislature map, which is tailored to favor Republicans. Although Democrats and the GOP typically split the vote evenly in statewide elections, Republicans command a 60-seat majority in the 99-seat legislature. The plaintiffs used social science metrics and the testimony of elections officials to show that Republican lawmakers carefully constructed a statewide map that would entrench a GOP majority until 2020.

As a result, the coalition argues that Democratic voters have been effectively disenfranchised across much of the state, in violation of the constitutional guarantees of equal protect and free association.

The Court declined to reach the merits of this argument, instead finding that the plaintiffs failed to show they have standing to bring the case. Standing requires that plaintiffs show a particular action inflicts a concrete injury upon them. In his opinion for the Court, Chief Justice John Roberts explained that the plaintiff’s theory inflicted injury on a district-by-district basis, and not on a statewide basis. (RELATED: Supreme Sell Off: Justices Shed Stocks To Avoid Conflicts Of Interest)

“Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the state’s legislative districts,” the chief wrote. “It requires revising only such districts as are necessary to reshape the voter’s district — so that the voter may be unpacked or uncracked, as the case may be.”

As such, the Court did not foreclose the possibility that it will find partisan line-drawing unconstitutional in some future case, nor did it disallow future challenges to a statewide map. Such challenges, however, will have to be brought under a different theory.

Contrary to usual protocol, the justices chose not to dismiss the case. Instead, the litigation will return to a lower court where the plaintiffs will have an opportunity to present further evidence of specific injuries. Justices Clarence Thomas and Neil Gorsuch did not join this part of the ruling, indicating they believe the case should be dismissed.

The decision was unanimous as to the result. Justice Elena Kagan wrote a concurring opinion arguing that the high court should intervene to police gerrymanders in future cases. She also embraced the plaintiff’s freedom of association argument, maintaining it could still be used to bring a claim against a statewide map. Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined Kagan’s opinion. All four also joined the Court’s ruling in full.

“More effectively every day, [gerrymandering] enables politicians to entrench themselves in power against the people’s will,” she wrote. “And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches.”

“Partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one,” she added.

The second case, Benisek v. Lamone, was a challenge to a single congressional district in western Maryland organized by Republican voters. The justices affirmed the lower court’s denial of a preliminary injunction for the GOP challengers.

In Benisek, Maryland’s Democratic state legislature enacted a congressional district map that ensured GOP Rep. Roscoe Bartlett would lose his 2012 reelection bid. Though west Maryland voters returned Bartlett to Congress ten consecutive times, the new lines incorporated portions of the Washington, D.C., suburbs, adding tens of thousands of Democrats to his district. As expected, he lost his seat by twenty points.

The Maryland plaintiffs put forward a different theory than the Wisconsin challengers, arguing the state legislature was retaliating against them based on their voting history, in violation of the First Amendment.

A three-judge panel declined to grant a preliminary order in favor of the plaintiffs, prompting an appeal to the high court. The justices affirmed the lower court’s decision, finding the Maryland challengers had waited to long to bring their case. Though the new map took effect in 2011, state Republicans did not bring their case until 2016.

The ruling also notes that the courts cannot grant relief in time for the 2018 elections. Primary elections in Maryland will be held on June 26.

The Court’s decision was unsigned, with no noted dissent.

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