August 10, 2019

Panelists discuss aftereffects of High Court gerrymandering cases

Gerrymandering cases continue to find their way to the U.S. Supreme Court and this past term was no exception. Once again, the High Court was asked to decide whether or not standards for partisan gerrymandering by states can be determined and applied. The Court’s ruling in June on cases involving North Carolina and Maryland gerrymandering maps might have shut the door on the issue for now — at least at the federal level.

“On partisan gerrymandering, I think the Supreme Court has been very clear about what it will or will not do under federal law. It will not get involved,” said attorney Abha Khanna, a partner with Perkins Coie LLP in Seattle, during a panel discussion on partisan gerrymandering on Aug. 9 at the American Bar Association Annual Meeting in San Francisco.

The program, “Partisan Gerrymandering: 2019 Update,” was presented by the ABA Young Lawyers Division and Standing Committee on Election Law. Joining Khanna on the panel was moderator Christopher Saucedo, the outgoing chair of the election law standing committee and a founding attorney for SaucedoChavez, P.C.; and Chris Skinnell, a partner at Nielsen Merksamer in the Bay Area.

The panelists discussed the future drawing of election maps through the lens of the Supreme Court decisions in Rucho v. Common Cause and Lamone v. Benisek, on the constitutionality of partisan gerrymandering in North Carolina and Maryland, respectively. Both cases reached the High Court last term and the justices rejected claims that partisan politics played a role in the way congressional districts were drawn in North Carolina (to benefit Republicans) and in Maryland (to give an advantage to Democrats).

The U.S. Supreme Court has turned away such challenges in the past, concluding that because redistricting is essentially a political act, it would be impossible to determine when partisan gerrymandering crossed a constitutional line.

“Until it overturns itself, that is going to be the law of the land for federal courts,” said Khanna, whose firm has represented parties in various redistricting cases.

Skinnell said Chief Justice John Roberts, who wrote the majority opinion, “expressed a primary concern that these are not cases the federal courts should be involved in and that it would be detrimental to the judiciary to be involved.”

Dissenting justices, led by Elena Kagan, felt the Court did have an obligation to settle the issue. Wrote Kagan: "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities."

The Supreme Court’s ruling essentially has left these challenges to the states and some states are acting.  Khanna noted that last year Pennsylvania's state supreme court struck down the congressional district maps and redrew them, overturning a Republican gerrymander that's been used in the past three congressional elections. And some states, like Florida, in 2010, are using the ballot initiatives to outlaw partisan gerrymandering.

“There is no reason to think that actions like those will go away,” Khanna said.