Today, the Supreme Court handed down decisions on two major cases – both involving gerrymandering:

 

Gill v. Whitford – This case originated in Wisconsin. 12 plaintiffs sued the Wisconsin legislature, saying that the new legislative districts that had been drawn reduced the ability of Democrats to convert their votes into the election of Democrat candidates. This case involved a novel way of assessing whether or not a district was gerrymandered – a theory of vote distribution where the gerrymandering was referred to as “cracking and packing.” “Cracking” votes meant drawing districts which diluted a particular party’s vote, and “packing” votes meant drawing a district heavily tilted toward a particular party’s candidates.

 

The Supreme Court ruled today that the case should be remanded (sent back down) to the lower court because the plaintiffs lacked standing. Legal precedent requires that in order to have standing to sue, an individual must have suffered specific harm that can be traced to the specific actions of a specific entity. In this case, the Supreme Court wrote that the plaintiffs were suing on a theory of statewide damage, when in reality, an individual plaintiff’s standing to sue for gerrymandering comes from harm done to that person in their specific voting district. Because the plaintiffs did not demonstrate that they suffered a specific statewide harm as a result of the gerrymandering, the Supreme Court remanded the case to the lower court to give the plaintiffs a chance to demonstrate that they suffered statewide harm.

 

Some interesting notes about this decision: The vote was unanimous in this case. In the opinion, written by Chief Justice John Roberts, there is an extensive review of the cases that the Supreme Court has heard in the past with regard to gerrymandering. The opinion here did not rule out the possibility that there could be other theories presented that would give rise to standing in a statewide case – it just said that this specific theory of harm was not appropriate to grant statewide standing. Finally, ordinarily when a party lacks standing, the Court dismisses the case. However, the opinion notes that this involves an unsettled claim without clear precedent from the Court, and so instead of dismissing the case, the Court remands this case to the lower court to give the Plaintiffs a chance to try to demonstrate that they have standing.

Benisek v. Lamone – This case originated in Maryland. There had been several attempts to get legislative districts drawn in 2011 thrown out over the years, and this appeal was the result of the Federal District Court of Maryland’s refusal to grant an injunction preventing the use of the 2011 maps in the 2018 election.

Today, the Supreme Court agreed that the District Court of Maryland was correct in refusing to issue a preliminary injunction. However, the ruling says nothing about the merits of the underlying case about gerrymandering. The Court simply ruled that the plaintiffs in this case did not meet the requirements necessary to be granted a preliminary injunction and made no ruling on anything regarding the claim of gerrymandering. This case was issued as a per curiam opinion, which means it was a unanimous and unsigned opinion from the Court.

The bottom line was that neither of these cases is a win when it comes to determining the limits of partisan gerrymandering. However, neither case is a loss, either – Benisek carries no weight when it comes to the underlying gerrymandering issue, and Gill also did not decide about any issues fundamental to the claim of partisan gerrymandering. Basically, the Court punted – it issued narrow rulings on procedural issues – and will likely wait for a case that it feels is more appropriate to determine any sort of judicial standard.

This blog post by the Brennan Center provides more background on the WI and MD cases.

All eyes will now be on several cases pending from NC.

North Carolina v. Covington, the gerrymandering case being considered for the second time by the Supreme Court (this time on appeal after the Special Master’s districts were implemented), has been relisted in an upcoming petition conference for the fourth time. While the Covington case originally required new legislative districts to be re-drawn due to racial gerrymandering, there were several (5) districts changed which were not in the ruling.  The drawing of those districts mid-decade (against state law) is now one of the points being appealed by the NCGOP.  The 5 points being considered in the Covington case are:

  1. Whether the district court had jurisdiction to consider challenges to the new districting plan the North Carolina General Assembly enacted after North Carolina’s previous state districting plan was invalidated as a racial gerrymander;
  2. Whether the district court erred by finding that four districts were racially gerrymandered even though the legislature did not consider race;
  3. Whether the district court erred by considering and substantiating a state-law challenge to five districts in which no plaintiff resides;
  4. Whether the district court erred by refusing to allow the legislature to enact its own remedial plan; and
  5. Whether the district court erred by imposing a map that improperly considered race.

Still kind of confusing, but since there is reason to believe the racially gerrymandered legislative maps were re-drawn by the NCGOP with purely partisan intentions, the Covington case ties into this discussion on how to define and curtail partisan gerrymandering. Now that Gil and Benisek have been decided, we may see the Court take action, either by accepting the case for review or declining to accept the case at the next conference (June 21, 2018).

Also still pending appeal at SCOTUS are two other NC cases, Common Cause v. Rucho and League of Women Voters v. Rucho. NC Policy Watch sums it up here:

“The three-judge federal panel that heard the cases (at the same time) ruled that lawmakers unconstitutionally used partisan gerrymanderingin their 2016 congressional map by burdening voters’ freedom of speech and freedom to associate based on their political beliefs, as well as by treating voters unequally by diluting the electoral influence of one party’s supporters.

The court’s remedy was ultimately put on hold by the Supreme Court while justices deliberated Gil and Benisek.

Common Cause North Carolina Executive Director Bob Phillips agreed with Riggs that the cases do not present the procedural issues the Supreme Court addressed in Gil.

We continue to be confident that given the overwhelming evidence in our case, the U.S. Supreme Court will ultimately uphold the federal district court’s landmark decision in Common Cause v. Rucho that found partisan gerrymandering to be unconstitutional,” he said. “We must end gerrymandering to ensure all voters have a voice in our democracy.”

The Supreme Court could set argument as early as this fall in the two Rucho cases. All eyes will be on NC indeed.