Democracy in America | The gerrymander’s reprieve

The Supreme Court dodges big decisions on partisan redistricting

But the justices leave room for future challenges to politically skewed districts

By S.M. | NEW YORK

IN 2004, Justice Anthony Kennedy lamented that state legislators are “in the business of rigging elections” by drawing highly skewed electoral lines. If gerrymandering could be hemmed in by a “workable” standard for policing maps, he continued, “courts should be prepared to order relief”. Fourteen years later, on June 18th, in two cases lined up for the Supreme Court to do just that, the justices again demurred—this time unanimously. Challenges to extreme gerrymanders in Wisconsin and Maryland—one favouring Republicans, the other Democrats—faltered on technical grounds.

The Wisconsin case, Gill v Whitford, ended in an anti-climatic fizzle: the plaintiffs lacked the requisite “standing” to sue, Chief Justice John Roberts wrote, so the court is powerless to evaluate the merits of their claims. The chief reasoned that voters complaining about the gerrymander—in which Republicans took 60 of 99 state assembly seats in 2012 despite being the choice of just 49% of voters—did not show they had suffered an “individual” and “personal” harm. Standing is only apparent with a particularised injury, he wrote, such as “a voter’s placement in a ‘cracked’ or ‘packed’ district” where his vote is diluted by politicised line-drawing.

Several of the plaintiffs initially asserted that they had endured this type of individual harm, Chief Justice Roberts acknowledged, but as the case developed, these arguments fell by the wayside. In their place arose a “theory of state-wide injury to Wisconsin Democrats”, which is too general, in the court’s eyes, to establish standing. The statistical approach on offer—which the chief derided as “sociological gobbledygook” in the oral argument last October—simply wasn’t enough to “solve the problem of partisan gerrymandering that has confounded the court for decades”.

But in line with a developing trend toward rulings that elicit broad support by handing something to everyone, the chief did not stamp out the hopes of the Gill plaintiffs once and for all. Instead, he handed the matter back to the lower court to afford the challengers “an opportunity to prove concrete and particularised injuries using evidence...that would tend to demonstrate a burden on their individual votes”. And in a concurrence joined by her fellow liberal justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor, Justice Elena Kagan picked up where Justice Kennedy left off in 2004.

“More effectively every day”, Justice Kagan wrote, gerrymandering “enables politicians to entrench themselves in power against the people’s will”. And amplifying the chief’s much more reserved invitation to challengers, Justice Kagan wrote, “only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches”. Most of the rest of Justice Kagan’s opinion could well have been the majority opinion had Merrick Garland, Barack Obama’s pick to fill the late Antonin Scalia’s seat, joined the court last year. But with Neil Gorsuch, Donald Trump’s nominee, in that seat and still one vote short, Justice Kagan embarked on an extended what-if thought experiment.

If the plaintiffs could show standing, she mused, they would have several tenable arguments to present. Vote dilution for one, plus a First Amendment “associational” claim that Justice Kennedy first spoke of in Vieth v Jubelirer, the 2004 case. By citing Justice Kennedy’s strong language in that opinion—and endorsing his view that “[r]epresentative democracy” is “unimaginable without the ability of citizens to band together” to promote their political positions—Justice Kagan strove valiantly, if a little desperately, to win over her colleague. The effort came up short in Gill. But as Justice Kagan is “sure” that she and her fellow justices “will again be called on to redress extreme partisan gerrymanders”, her opinion serves as a standing enticement to pull the 81-year-old Ronald Reagan appointee over to the liberals when the next opportunity arises. Justice Kagan did not hide her strategy: “I am hopeful we will then step up to our responsibility to vindicate the constitution” against the scourge of politicians picking their voters, rather than the other way around.

Benisek v Lamone, the Maryland case involving particular districts that Democrats had engineered for their benefit, presented exactly the kind of smaller-scale standing the Gill majority seemed to want, but there, too, the justices found a procedural loophole saving them from confronting the merits of the claim. The lower court’s decision not to suspend Maryland’s maps for the 2018 election wasn’t outrageously wrong, the Supreme Court said in an unsigned five-page ruling. The plaintiffs tarried for six years before challenging the districts, the court said, and judicial interference so close to an election may be unwise. So the justices handed Benisek back to the lower court for a full hearing that could, conceivably, bring changes to the maps for 2020.

While the lower courts resume work on cases the Supreme Court has temporarily washed its hands of, yet another partisan gerrymandering dispute may be on its way to the justices’ portfolio. At their conference on June 21st, the justices will discuss their options in a case involving a challenge to North Carolina’s gerrymandered congressional map. The justices have bought themselves some time, but they are unlikely to find relief from the question of how far legislatures can go in rigging elections.

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