September 15, 2018 Feature

Hurry Up and Wait! The Court Punts on Partisan Gerrymandering

By Benjamin E. Griffith
In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself.

—Alexander Hamilton

We are deep in the era of tribal politics. Decades of partisan gerrymandering have superimposed a thick cloud over the electoral process and political accountability at the federal, state, and local levels. For a brief moment there seemed to be a tipping point—but only for a moment.

During the waning days of the term ending in June 2018, the United States Supreme Court managed to delay decisions on the merits in two partisan gerrymandering challenges originating in Wisconsin and Maryland. Gill v. Whitford and Benisek v. Lamone initially gave rise to hopes that the Court would finally decide the issue of partisan gerrymandering’s constitutionality on the merits. The disposition of both cases and avoidance of a resolution of the core issue in both cases set in bold relief the Court’s long struggle to reach consensus on the contours and justiciability of partisan gerrymandering claims. Whether the Court’s action was a punt or an exercise of judicious caution at the constitutional intersection of partisan politics and the electoral process, one thing is clear: some progress arguably was made as the Court did move the ball further down the field. Final resolution of this constitutional issue remains beyond reach for now as the lower courts grapple with remand instructions from the Supreme Court.

Gill v. Whitford

In a 9–0 decision by Chief Justice John Roberts on June 18, 2018, the Supreme Court vacated the district court’s decision in Gill v. Whitford that had invalidated the Wisconsin legislative redistricting plan as an unconstitutional political gerrymander based on a theory of vote dilution.1 The Court held that the plaintiffs had not made the requisite showing for Article III standing. It remanded the case to the district court for an opportunity for the plaintiffs to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes.

The key issues before the Court were (1) whether the lower court violated Vieth v. Jubelirer2 by holding that it had the authority to entertain a statewide challenge to Wisconsin’s redistricting plan, as opposed to a district-by-district analysis; (2) whether the lower court erred in holding that Wisconsin’s redistricting plan was an impermissible partisan gerrymander even though it complied with traditional redistricting principles; (3) whether the lower court erred in adopting a watered-down version of the partisan gerrymandering test employed by the plurality in Davis v. Bandemer;3 (4) whether the state defendants were entitled to present additional evidence showing that they would have prevailed under the district court’s test; and (5) whether partisan gerrymandering claims are justiciable.

With respect to Article III standing and justiciability, the Court declined to direct the dismissal of the plaintiffs’ claims—the usual case where a plaintiff fails to demonstrate Article III standing—reasoning: “This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that [specific plaintiffs] live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.”

Concurring, Justice Kagan summarized the Court’s holding, stating that “a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must prove that she lives in a packed or cracked district in order to establish standing,” and “none of the plaintiffs here have yet made that required showing.”

Benisek v. Lamone

On the same day the Court decided Gill v. Whitford, it also handed down an unsigned per curiam order in Benisek v. Lamone.4 The order contained no recorded dissents.

The challengers sought to invalidate the partisan gerrymandered Sixth Congressional District (6th CD) of Maryland and had argued in the lower court that the state gerrymandered this district in 2011 in retaliation for the challengers’ support for Republican candidates. They asserted that although election officials only had to adjust the district by approximately 11,000 votes to account for the most recent census results, those officials created “more than a 90,000-voter swing in favor of registered Democrats.” As a consequence, in elections held under the new 6th CD map in 2012, the incumbent Republican who had been re-elected by a margin of nearly 30% just two years earlier lost to a Democrat by over 20%. Last summer, the challengers sought and were denied a preliminary injunction by the lower court to block state officials from holding congressional elections under the 2011 map. Before the Supreme Court was an appeal by the Benisek challengers from the lower court’s denial of that motion for preliminary injunction.

The Supreme Court in its per curiam ruling upheld the lower court’s denial of injunctive relief. For now, the challenge to Maryland’s 6th CD can continue in the lower court, but the state’s 2018 elections, including primaries scheduled for late June 2018, will use the current map. In its per curiam ruling, the Supreme Court explained that the lower court’s order denying the preliminary injunction should stand as long as it was not an “abuse of discretion.” Here the district court did not abuse its discretion in denying the Maryland challengers’ request because the challengers had waited far too long (six years after the map was adopted) to raise their retaliation claim, and granting their request would have been disruptive to the 2018 elections. The Court added that the lower court’s order had been issued after the Supreme Court had announced that it would review the Wisconsin ruling in Gill v. Whitford. It noted that the lower court would quite reasonably have believed that it might be better off waiting for guidance from the Supreme Court, rather than “charging ahead.”

League of Women Voters v. Rucho and Common Cause v. Rucho

With Gill v. Whitford now remanded to the district court in Wisconsin and Benisek v. Lamone headed back to the lower court for further proceedings following denial of injunctive relief, two consolidated partisan gerrymandering cases still were pending in the Supreme Court: League of Women Voters of North Carolina v. Rucho and Common Cause v. Rucho. The Rucho cases were partisan gerrymandering challenges to North Carolina’s 2016 congressional map. The lower court struck down the N.C. map and ordered the N.C. legislature to come up with a new plan in short order. The Supreme Court entered a stay in January 2018 in order to give the N.C. Republicans time to appeal, and that appeal remained on hold for several months, most likely waiting for the rulings in Gill and Benisek. On June 25, 2018, the Supreme Court vacated the judgment in the consolidated Rucho cases and remanded to the United States District Court for the Middle District of North Carolina for further consideration in light of Gill v. Whitford.5

Conclusion

The core issue of whether, when, and under what judicially manageable standard, if any, the Court can or will decide any of these partisan gerrymandering cases has yet to be resolved, but the machinery is in place to push toward a resolution possibly by the October 2018 term. The ball is in the challengers’ court, and the stakes can potentially be as high as which party ultimately commands even a razor-thin majority in the U.S. House of Representatives.

Endnotes

1. Gill v. Whitford, No. 16-1161 (U.S. June 18, 2018), http://www.scotusblog.com/case-files/cases/gill-v-whitford/.

2. 541 U.S. 267 (2004).

3. 478 U.S. 109 (1986).

4. Benisek v. Lamone, No. 17-333 (U.S. June 18, 2018), http://www.scotusblog.com/case-files/cases/benisek-v-lamone/.

5. Rucho v. Common Cause, No. 17-1295 (U.S. June 25, 2018), http://www.scotusblog.com/case-files/cases/rucho-v-common-cause/.

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By Benjamin E. Griffith