The Magic 8 ballSCOTUS says Reply hazy, try again later in the two partisan gerrymandering cases before it.
On Monday, the court punted two major political redistricting cases: Gill v. Whitford, a challenge to Wisconsin’s Republican gerrymander, and Benisek v. Lamone, a challenge to Maryland’s Democratic gerrymander. Together, Gill and Benisek presented the Supreme Court with an opportunity to finally decide whether legislators violate the Constitution when they draw districts designed to dilute the power of voters’ ballots on the basis of their political associations. Instead, the court shooed away both cases on plausible but not entirely satisfactory grounds. Its nondecision will allow partisan gerrymandering to continue for the time being. Yet Justice Elena Kagan’s concurring opinion provides a road map for voting rights advocates to follow in the future—one that might attract Justice Anthony Kennedy’s vote if he remains on the court.
Ironically, Gill’s assault on Wisconsin’s gerrymander failed for precisely the reason that so many advocates thought it would succeed. In 2004, the Supreme Court splintered on the question of whether the judiciary can strike down a legislative map drawn along unduly political lines. Kennedy declared that courts might be able to, because partisan gerrymandering constitutes a genuine threat to voters’ First Amendment rights to free association and expression. But first, Kennedy wrote, the courts would need reliable, manageable, and consistent “judicial standards” to determine when, exactly, a gerrymander infringes upon these rights.
Gill marked an effort to hand Kennedy that standard, in the form of the “efficiency gap.” This formula measures two types of “wasted votes”: “lost votes” cast for a defeated candidate and “surplus votes” cast for a winning candidate that weren’t necessary for her to win. As its creator explains it, the efficiency gap measures “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” A large efficiency gap indicates a particularly egregious partisan gerrymander; an efficiency gap of 7 percent can entrench the majority party’s power indefinitely. Wisconsin’s GOP-drawn gerrymander has an efficiency gap of 13 percent, indicating that Democrats could not possibly win back a majority in the state legislature. The Gill plaintiffs used this calculation as proof that Wisconsin Republicans had trammeled their First Amendment rights.
But here’s the problem: In order to bring a lawsuit in federal court, an individual must have standing—a “particularized injury” that burdens their rights individually. And in Gill, the group of voters who sued Wisconsin Republicans had not proved that their specific votes had been diluted on account of their association with the Democratic Party. Instead, Chief Justice Roberts wrote in his majority opinion, they “rested their case” on a “theory of statewide injury to Wisconsin Democrats.” This statewide injury, Roberts held, was not sufficiently particularized to give the plaintiffs standing to sue. So he sent the case back down to the lower court, giving the plaintiffs another opportunity to prove that Wisconsin’s gerrymander directly injures them.
Kagan, on the other hand, wrote a concurring opinion, joined by the other three liberals, effectively providing the plaintiffs with guidance on how to prove standing next time around. After reiterating that partisan gerrymandering is “incompatible with democratic principles,” Kagan explained that the plaintiffs should now “introduce evidence that their individual districts” were drawn to dilute Democratic votes. Moreover, the lower court should still “consider statewide evidence,” such as GOP mapmakers’ explicit desire to create a map that disfavored Democrats. Taken together, this evidence should suffice to give the plaintiffs standing.
But Kagan went further, giving the plaintiffs a different route to victory on their second try. The justice explained that partisan gerrymandering may burden a voter’s constitutional rights even if she does not live in a gerrymandered district. In Wisconsin, for example, all members of the state Democratic party are “deprived of their natural political strength by a partisan gerrymander.” As a result, members of this “disfavored party … may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office.” Individual voters may have standing, Kagan wrote, when mapmakers burden their “associational rights” in this manner. And their injury—a broad harm to their “First Amendment rights of association”—would be fairly easy to prove.
I’ll let you read that story and the “more reading” links at the end for analysis, but that’s the gist of it there. Expect to see this case take another tour through the courts, with a different name or set of names on top. The main thing to remember otherwise is that these cases were about partisan gerrymandering, which is not a claim being decided in the Texas litigation. That one is an old-fashioned racial discrimination claim, so the court has no real basis to send it back. Though with this court, who knows. I was clearly of the opinion back in April when the case was argued that we would have a decision by the end of June, but now I think I got that wrong. The Gill case was argued last October, so based on that I now expect this to be handed down late in the year. But again, with this court, who knows? Ian Millhiser, Rick Hasen, Daily Kos, and Pema Levy have more.