Justices Punt on Gerrymandering Cases

The Supreme Court took a pass on one of the most serious challenges facing American democracy this morning, declining for the moment to rein in Democratic and Republican state legislators who’ve manipulated hundreds of congressional and state legislative districts across America to elect their candidates and freeze out their opponents.

The rulings in cases from Wisconsin and Maryland set up a new legal showdown, likely this fall, when the justices are expected to hear arguments in Common Cause v. Rucho, a partisan redistricting challenge from North Carolina. That case is based on a different legal theory from those used in the Wisconsin and Maryland cases.

“This is by no means the end of the road,” said Common Cause President Karen Hobert Flynn. “The Supreme Court is still actively looking for the right case to establish a standard for what constitutes unconstitutional partisan gerrymandering. With Wisconsin and Maryland’s cases still alive, and Common Cause’s North Carolina case awaiting review by the Supreme Court, the fight to establish constitutional limits on partisan gerrymandering is very much alive.”

In the Wisconsin case, Gill v. Whitford, a 7-2 majority of the justices said that Democratic voters who challenged a Republican gerrymander of the state’s congressional districts had not shown that they have been personally damaged and so do not have legal standing to pursue their claims.

“A plaintiff seeking relief in federal court must first demonstrate that… he has ‘a personal stake in the outcome,’” Chief Justice John Roberts wrote for a 7-2 majority. The justices sent the case back to a lower court to give the plaintiffs an opportunity to present evidence of any harm.

“We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies,” Roberts wrote.

“We remain hopeful that standing can be addressed and we can win justice in the courts” said Jay Heck, executive director of Common Cause in Wisconsin.  “We even more urgently renew our call on the Wisconsin Legislature to replace this broken system with a transparent, non-partisan process modeled after our neighbor, Iowa, in time for the 2021 redistricting cycle.”

Meanwhile, in the Maryland case, Benisek v. Lamone, the court unanimously upheld a lower court’s refusal to block elections in the state’s historically Republican 6^th Congressional District. Republicans there allege that the Democratic-controlled state legislature shifted district lines in 2011 to move thousands of GOP voters into districts where they would be vastly outnumbered by Democrats and unable to elect Republican candidates. The Democratic strategy worked, as veteran GOP Rep. Roscoe Bartlett was forced into retirement.

Again, however, the justices said voters who claim to have been deprived of their rights by partisan gerrymandering should have a chance to prove their claims; the Benisek case was returned to the lower court for further hearings.

“Today’s decision proves that the Supreme Court is open to striking political gerrymanders,” said Damon Effingham, acting executive director of Common Cause Maryland. “Along with our allies in the Tame the Gerrymander coalition, we will continue to work to create a fair districting process in Maryland so that everyone, regardless of their political affiliation, has a voice in our democracy.”

The cases illustrate how the damage done to voting rights by partisan gerrymandering cuts across party lines, as whichever party commands a majority in the state legislature in the year following the decennial census has a powerful incentive to draw new boundaries that will cement its advantage.

In a lengthy concurring opinion in the Gill case, Justice Elena Kagan offered a possible roadmap for subsequent redistricting challenges, detailing harms partisan gerrymandering has inflicted on the ability of Congress and state legislatures to function effectively.

“Partisan gerrymandering goes back to the Republic’s earliest days; and yes, American democracy has survived,” she wrote. “But technology makes today’s gerrymandering altogether different from the crude linedrawing of the past. New redistricting software enables pinpoint precision in designing districts. With such tools, mapmakers can capture every last bit of partisan advantage, while still meeting traditional districting requirements (compactness, contiguity, and the like)…  Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides. The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record… The technology will only get better, so the 2020 cycle will only get worse.”

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