Supreme Court gerrymandering decision signals more legal challenges to come

Senators Dan Soucek, left, and Brent Jackson, right, review historical maps during The Senate Redistricting Committee for the 2016 Extra Session in the Legislative Office Building at the N.C. General Assembly on Tuesday, February 16, 2016.
Senators Dan Soucek, left, and Brent Jackson, right, review historical maps during The Senate Redistricting Committee for the 2016 Extra Session in the Legislative Office Building at the N.C. General Assembly on Tuesday, February 16, 2016. The News & Observer

The U.S. Supreme Court's handling of two cases alleging partisan gerrymandering is expected to spur even more legal action over the constitutionality of crafting electoral maps that tend to favor one political party.

Opponents of gerrymandering were hoping the Wisconsin and Maryland cases involving partisan gerrymandering would provide a new legal standard for how far a majority party can go in drawing political boundaries to their own benefit.

But the high court instead declined to get involved, sending the Wisconsin case back to the lower court and leaving undisturbed another federal court ruling that allowed a disputed congressional map in Maryland to be used in the 2018 mid-term election.

"What this says to me is that the court didn't want to decide the issue. This was a punt," said Justin Levitt, a professor at Loyola Law School in Los Angeles.

Expect Democrats and gerrymandering opponents to continue to challenge Republican electoral maps in hopes of playing a larger role in the redistricting process after the 2020 Census.

"We anticipate further legal challenges to the partisan gerrymandering that is undermining our democracy," said a statement from former U.S. Attorney General Eric Holder, who chairs the National Democratic Redistricting Committee. "We will continue to execute our comprehensive approach of taking legal action, supporting ballot reform initiatives (and) building a grassroots movement of citizens who want to end gerrymandering."

In Gill v. Whitford, the Supreme Court said that a group of Democratic voters failed to prove that they suffered individually from legislative districts drawn in 2011 by Republicans in the Wisconsin state assembly.

The plaintiffs claimed Democratic voters were spread out among several districts to dilute their influence or clustered into a few districts, which limited their impact. The tactics are known as “cracking” and “packing” and they allow the party in power to retain more seats.

Wisconsin Republicans won 60 percent of state assembly seats in 2012, but received only 49 percent of statewide votes.

"Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof," that they lived in a packed or cracked district, leaving the court without "power to resolve their claims," Chief Justice John Roberts wrote in the majority opinion, sending the case back to a federal court in Wisconsin, for the plaintiffs to try and make their case again.

It also gives voting rights watchdogs an avenue to continue pursuing cases against partisan gerrymandering.

While the Supreme Court has struck down redistricting plans that were drawn along racial lines, it has never done so in a case alleging excessive partisan bias.

In a concurring opinion in the Wisconsin case, Justice Elena Kagan wrote that disputes about a plaintiff's legal standing "will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy."

Kagan wrote that plaintiffs could satisfy their legal standing requirement in other ways besides proving they reside in a district that was adversely affected by partisan gerrymandering.

"Among other ways of proving packing or cracking," Kagan added, "a plaintiff could produce an alternative map (or set of alternative maps)—comparably consistent with traditional districting principles—under which (a person's) vote would carry more weight."

Vanita Gupta, president and CEO of The Leadership Conference on Civil and Human Rights, called for continued efforts to fight partisan gerrymandering.

"We will continue to urge states to create fair and independent redistricting commissions to prevent partisan gerrymandering so that all voices can be heard.”

In Benisek v. Lamone, a second partisan gerrymandering case brought by Republican voters in Maryland, the Supreme Court issued an unsigned opinion affirming that a lower court did not abuse its discretion by refusing to allow the plaintiffs to block the 2018 congressional election until the state could redraw Maryland's 6th Congressional District.

Plaintiffs claimed the district boundaries were changed by Democratic lawmakers in order to dilute the voting strength of Republicans.

The U.S. District Court for the District of Maryland delayed the case until the Supreme Court issued a decision in the Gill v. Whitford case.

Had the court decided the Gill case and established a new standard for excessive partisanship, Levitt thinks they would have also decided the Benisek case.

"But what the court really decided is it wasn't ready to make a decision on either case just yet,” Levitt said.