Supreme Court Leaves ‘Wild West’ Of Partisan Gerrymandering In Place — For Now
Monday, June 18, 2018
The U.S. Supreme Court punted Monday on its biggest decision of its term so far. The justices had been expected to rule on the limits of partisan gerrymandering.
Instead, the court sidestepped the major issues on technical grounds, sending the issue back to the lower courts for further examination.
The two cases before the court illustrate the bare-knuckles practice both parties have used to maximize and perpetuate their own power through the re-drawing of legislative district lines. In Wisconsin, Republicans, who controlled the state legislature, drew district lines so that even when the Democrats won a decisive statewide victory in terms of votes, the GOP carried nearly two-thirds of the legislative seats.
In a second case, from Maryland, Democrats drew congressional district lines to ensure that one of the two traditionally Republican congressional seats would flip to the Democrats.
Instead of deciding the constitutional question, however, the court unanimously said that the plaintiffs in the lead case from Wisconsin had not shown that they had suffered the kind of injury that would allow them standing to seek intervention from the courts. In an unusual step, the justices, by a 7-to-2 vote, sent the case back to the lower courts, in order to give the Democratic voters a chance to present evidence of injury on a district-by-district basis, instead of a statewide basis. The Maryland case, likewise, was remanded to the lower courts.
A doctrine without teeth
The Supreme Court in 1986 actually said that partisan gerrymandering is unconstitutional when the election system "is arranged in a manner that will consistently degrade a voter's or a group of voters' influence," but as New York University election law professor Richard Pildes observed Monday, in the three decades since that decision, the high court has refused to enforce it with any teeth.
The Wisconsin case was teed up as a test of "whether the court's going to put any teeth into that doctrine," Pildes said.
After Monday's ruling, there still is no answer to that question.
Writing for the court in the Wisconsin case, Chief Justice John Roberts said that the statewide mathematical theory advanced by the challenging voters did not prove that each legislative district was drawn with partisan intent that diluted the rights of voters in every district.
A citizen's right to vote, Roberts said, is embodied in his right to vote for his representative, not in an abstract interest in the overall make-up of the legislature. In order for the case to go forward, the court said, individual voters in each challenged district must offer proof of harm.
Justice Elena Kagan, writing for the court's four liberal justices in a separate concurring opinion, laid out a roadmap for how the voters could prove their case in the lower courts. But Justice Anthony Kennedy, considered the decisive vote in the case, did not sign the concurring opinion, meaning that it is not clear whether he agrees or disagrees with some of all of the concurring opinion.
Furthermore, Roberts specifically disavowed the Kagan opinion, including her suggestion that a broad First Amendment challenge might be the most effective and efficient statewide challenge to partisan gerrymandering. The chief justice's opinion said Kagan's concurrence was not in any way binding on the lower courts.
The battle "for the soul of Justice Kennedy"
Richard Hasen, an election-law professor at the University of California, Irvine, said he saw that case as "two of the court's savviest justices, Chief Justice Roberts and Justice Kagan, battling for the soul of Justice Kennedy."
In fact, the Roberts opinion for the court decided as little as possible, leaving almost everything to be decided another day. Most election law experts seemed to think that the best vehicle for a decision in the next year or two would be a case from North Carolina currently sitting on the court's docket, which the justices could hear as early as next term.
As for what standard will govern in the near future, Roberts's opinion essentially left all options open.
A golden opportunity?
Some experts were more sanguine than others about the court's readiness to act.
"If Justice Kennedy wants to decide this case," Hasen said, "and he's still on the court next term, I think he certainly could. Whether he will, I'm not all that certain."
Hasen added, "This was really the golden opportunity for him to decide these cases."
Paul Smith, a Georgetown law professor who argued the case for those challenging the Wisconsin redistricting map, was relieved.
"I'm pretty glad we lived to fight another day," he said.
Nicholas Stephanopoulos, a professor at the University of Chicago who devised the mathematical formula that was used in the Wisconsin law, called the court's decision to remand to lower courts "a silly hoop," but one "that we are really capable of jumping through."
Stanford law professor Nathaniel Persily, who has been hired by courts to consult on the drawing of legislative maps, noted that current computer technology and data predictions are more useful than ever before, and aid in making "sure that your gerrymander is insulated against political shifts."
That means that, if challenges can only be brought district-by-district, it "becomes difficult for plaintiffs to win" in cases challenging partisan gerrymanders.
But Lawrence Lessig, a professor at Harvard Law School, was more optimistic for the challengers, seeing Monday's decision as "a short-term stumble on the way to a long-term victory."
In the long run, he said, "we're going to see this as really the dam breaking and an extraordinary opportunity to clean up the unfairness of our political system."
"It's the Wild West out there"
For now, however, the status of partisan gerrymandering remains unresolved.
"It's the Wild West out there," said Keith Gaddie, a University of Oklahoma elections professor.
Gaddie was hired by Wisconsin Republicans in the course of drawing the state's legislative maps, but, in 2017, he filed a friend of the court brief against the Republicans in the Supreme Court case.
Monday's decision, he said, clarifies little. Right now, he said, there is no "clean sense of standing," and no "clean methodology" about how to challenge partisan gerrymandering.
"We just know it is not democratic," Gaddie said, "and therefore despicable, but we don't know if it's illegal."
Monday's ruling is an enigma in many ways. The case was among those argued in October, at the beginning of the term. Yet it decides so little, with an opinion that is short, a concurrence that says a lot, but is not binding and a dissent that is a single paragraph.
All of that hints at a lot going on behind the scenes at the court, and that the decision that the court produced is something of a placeholder.
What is it a placeholder for?
That is unclear.
Also unclear: whether a Democratic wave election in 2018 that sorted out the problem through politics would help or hurt the prospects for a future court decision with any teeth.
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