Voting Rights and Democracy

SCOTUS Leaves Gerrymandering Foes ‘Disappointed, But Not Devastated’

Voting rights advocates did not get the Supreme Court decisions they were looking for on Monday, when the court punted on partisan gerrymandering cases coming out of Wisconsin and Maryland. But they didn’t get the door shut on them, either.

“I am disappointed, but not devastated in any way,” said Michael Li, a senior counsel for the Democracy Program at the Brennan Center, which filed briefs supporting the challengers in both cases.

“These are important decisions that actually move the ball forward and the court isn’t walking away from the issue. It didn’t make the issue messier than it was. They clarified the issue—that’s a big step forward,” Li told TPM.

The cases at hand were Gill v. Whitford and Benisek v. Lamone. Gill was a challenge to Wisconsin’s Republican-drawn state legislative map, where the challengers were hoping to establish a statewide standard to determine whether a partisan gerrymander was too extreme. Benisek, meanwhile, was a lawsuit brought challenging an individual U.S. congressional district drawn in Maryland boosting Democrats’ advantage there.

In both cases, the Supreme Court declined to wade into the substantive issues, but issued unanimous decisions on procedural matters that kept the cases alive but allowed the court to sidestep the bigger questions for at least another term.

Monday’s opinions, and particularly the majority and concurrence opinions issued in the Wisconsin case, gave voting rights advocates a better idea of what arguments could be successful at the high court in the future.

“At the end of the day, the court has expressed: you need to have a voter as a plaintiff who is complaining about packing or cracking that dilutes his or her vote,” said David Gans, the civil rights director at Constitutional Accountability Center, a liberal legal advocacy group.

Chief Justice Roberts, writing for the majority, said that the challengers in Wisconsin needed to provide evidence that their individual votes in their specific districts were being diluted. The case so far had focused on the effects statewide of the Republican-drawn map.

“I don’t think it will be hard to find people who have precisely the type of injury that the court was looking for an individualized basis,” Li said.

Roberts did not say whether challengers who had presented those types of injuries would also get a ruling in their favor on the merits; he said explicitly that the unanimous opinion was expressing “no view on the merits”of the case.

Justice Elena Kagan — in an concurrence signed on to by the liberal wing of court — went even farther in laying out a path where challengers might have more success. She suggested what kind of evidence and claims challengers to gerrymandered maps could consider bringing in the future. Beyond the district-by-district vote dilution approach to challenging a partisan gerrymandered map, she also floated the idea of an “associational injury” that a political party suffers that was distinct from an individual’s diluted to vote.

“There are all kinds of tangible benefits and harms that come to political parties and quasi-party organizations by having more or fewer members of the delegation,” Marc Elias, a prominent Democratic election lawyer, told TPM.

However, it’s worth noting that Justice Anthony Kennedy, the key swing vote on the issue, still seems to be sitting on the fence. He could have signed on to Kagan’s concurrence, but didn’t. He could have outright rejected it too, but also didn’t.

“We’re basically in the same place we’ve been, which is Justice Kennedy holds the decisive vote and he’s not ready to commit one way or the other,” Rick Hasen, a UC-Irvine election law professor who runs the Election Law blog, told TPM.

So voting rights advocates will have to wait at least another term to see if they could attract him as a fifth vote to put limits on partisan gerrymanders.

That moment could be coming soon. In North Carolina a Democratic lawsuit is challenging its GOP-drawn map that was drawn explicitly to maintain Republicans’ partisan advantage, after a previous map was thrown out for being a racial gerrymander. There are also gerrymandering lawsuits percolating in Ohio and Michigan, and hints of more lawsuits to come.

“Given today’s Supreme Court actions, we anticipate further legal challenges to the partisan gerrymandering that is undermining our democracy,” former Attorney General Eric Holder, who leads the National Democratic Redistricting Committee, said in a statement Monday.

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