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.

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