Supreme court dodges making major ruling on gerrymandering

The justices sent the case back to a trial court to allow the plaintiffs to try again to prove that their voting power had been directly affected by the way state lawmakers drew voting districts for the state Assembly

In the second case, the court unanimously ruled against the Republican challengers to a Democratic plan to redraw a Maryland congressional district. In a brief unsigned opinion, the court said the challengers had waited too long to seek an injunction blocking the district, which was drawn in 2011.

Both cases had the potential to deliver a reckoning on a practice that dates to the early days of the Republic and got its name from one of the signers of the Declaration of Independence, Elbridge Gerry. The court instead kicked the can down the road, leaving the door open to further challenges.

But the decisions were a setback for critics of gerrymandering, who had hoped that the Supreme Court would transform American democracy by subjecting to close judicial scrutiny the way districts have been redrawn to accommodate the preferences of the party in power. When the dust settled Monday, the status quo remained in place.

The court’s decision to duck rather than decide the central issues turned on Justice Anthony M. Kennedy, said Richard L. Hasen, who teaches election law at the University of California, Irvine.

In 2004, Kennedy wrote in a concurring opinion that he might consider a challenge to partisan gerrymandering if there were “a workable standard” to decide when such tactics crossed a constitutional line. But he said he had not seen such a standard.

Hasen said he is apparently still looking.

“Justice Hamlet lives,” he said. “After a decade and a half of ruminating on how to separate permissible from impermissible consideration of party in redistricting, Justice Kennedy has decided he — or his successor — needs still more time for rumination.”

The question may return to the court soon enough. A new challenge, from North Carolina, is waiting in the wings and could allow the justices to try again to find a standard that could allow constitutional challenges to voting maps warped by politics.

Chief Justice John G. Roberts Jr.’s opinion in the Wisconsin case lacked soaring language or all but the most glancing criticism of gerrymandering. The court was powerless to consider the issue, he wrote, because the plaintiffs had not shown that their own voting power in their own districts had been diluted.

For instance, the lead plaintiff, the chief justice wrote, lived in what is “under any plausible circumstances, a heavily Democratic district.”

That meant, Roberts wrote, that the plaintiff could not pursue a claim that his voting power within his district had been diminished by the current voting map. The chief justice acknowledged that other legal theories might allow proof of harm focused on the entire state rather than on a single voting district.

“This court is not responsible for vindicating generalized partisan preferences,” the chief justice wrote. “The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

By ruling only on standing, the court sidestepped the central questions in the case of whether the Constitution forbid gerrymandering, and if it does, what standard should the courts should use to draw a constitutional line?

In a concurring opinion, Justice Elena Kagan set out a detailed road map for how such claims could be framed and presented. She was joined by the other members of the court’s liberal wing — Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

Kagan added that courts have an important role to play given the harm caused by gerrymandering.

“More effectively every day, that practice 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.”

“Indeed,” she wrote, “the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.”

In a second concurring opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, agreed that the challengers lacked standing to sue. But they said they would have dismissed their case outright rather than giving them another chance to present proof.

In the Maryland case, the court said the challengers had moved too slowly and that there was not enough time for orderly consideration of the case before the 2018 election season. The case had reached the Supreme Court at an early stage, and it will continue to be litigated before the trial court.

It was still the case that the Supreme Court has never struck down a voting district as a partisan gerrymander. But the court did not close the door on that possibility.

In the Wisconsin case, Gill v. Whitford, No. 16-1161, a three-judge U.S. District Court had struck down the legislative map for the state Assembly, which had been drawn after Republicans gained control of the state’s government in 2010. The district court’s decision was the first from a federal court in more than 30 years to reject a voting map as an unconstitutional partisan gerrymander.

The Wisconsin map helped Republicans convert very close statewide vote totals into lopsided legislative majorities. In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.

Roberts devoted much of his opinion to explaining why the challengers’ legal theory allowed only district-by-district, as opposed to statewide, challenges.

The challengers had relied in part on a proposed standard that tried to measure the level of partisanship in legislative maps by counting “wasted votes” that result from the two basic ways of injecting partisan politics into drawing the maps: packing and cracking.

Packing many Democrats into a single district, for instance, wastes every Democratic vote beyond the bare majority needed to elect a Democratic candidate. Cracking, or spreading Democratic voters across districts in which Republicans have small majorities, wastes all of the Democratic votes when the Republican candidates win.

The difference between the two parties’ wasted votes, divided by the total number of votes cast, yields an efficiency gap, they wrote. The statewide gap in Wisconsin, they said, was especially high.

Roberts responded that cracking and packing must be analyzed at the district level.

“The plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted,” the chief justice wrote. “That harm arises from the particular composition of the voter’s own district, which causes his vote — having been packed or cracked — to carry less weight than it would carry in another, hypothetical district. Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the state’s legislative districts.”

In her concurring opinion, Kagan agreed that voting dilution claims generally had to be analyzed at the district level, though she said statewide evidence could be considered and statewide relief granted. She added that a different legal theory, grounded in the First Amendment’s protection of freedom of association, allowed statewide claims.

“Nothing in the court’s opinion,” she wrote, “prevents the plaintiffs on remand from pursuing an associational claim, or from satisfying the different standing requirement that theory would entail.”

In the Maryland case, Benisek v. Lamone, No. 17-333, Republican voters argued that Democratic state lawmakers had redrawn a congressional district to retaliate against citizens who had supported its longtime incumbent, Rep. Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.

“The 2011 gerrymander was devastatingly effective,” the plaintiffs wrote in their appeal to the Supreme Court, saying that “no other congressional district anywhere in the nation saw so large a swing in its partisan complexion following the 2010 census.”

Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Rep. John Delaney, a Democrat, by a 21-point margin.

This article originally appeared in The New York Times.

Supreme court dodges making major ruling on gerrymandering

In a challenge to a redistricting plan devised by the Republican Legislature in Wisconsin, the court unanimously said that the plaintiffs had not proved that they had suffered the sort of direct injury that would give them standing to sue.

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