On Monday the Supreme Court avoided deciding, once again, when, if ever, political gerrymandering violates the Constitution. In Gill v. Whitford, the Supreme Court was presented with startling evidence that Wisconsin legislators manipulated legislative district boundaries with remarkable precision to advantage Republicans over Democrats. The result was Republicans won seats in gross disproportion to the number of votes they received. In Maryland, Democrats did the same thing. Instead of deciding whether the Constitution prohibits this sort of political gerrymandering, the High Court sent the case back to the District Court that decided the case on technical grounds – whether the individual plaintiffs in the case had standing to even raise the challenges in the first place.
Though the Court ducked the big question – what limits are there on legislators when they use partisan political considerations to shape legislative districts – the Court’s opinions shed some light on how the Court might decide those questions in the future. There are reasons for optimism for both opponents of partisan gerrymandering and for proponents of giving the political branches discretion to decide legislative districts. There are reasons for the rest of the country to be afraid that no clear answer to these questions is coming anytime soon.
1. Standing Counts.
The Court in Gill re-affirmed that a generalized grievance about Government misconduct isn’t enough for a citizen to make a claim in federal court. A plaintiff must show that he has a “personal stake” in the alleged Government misconduct. He has to show that (i) he has been, in fact, injured by the government action, (ii) that his claimed injury is fairly traceable to the Government action at issue, and (iii) that his injury can be redressed by the court. Plaintiffs who can prove those facts get to have their cases decided in court. Plaintiffs who can’t prove those facts are out of luck. They should find a sympathetic bartender to complain to.
In Gill, the Court held, in an opinion written by Chief Justice Roberts, that the Wisconsin plaintiffs failed to show that their individual rights were affected by political gerrymandering. Their claim that they had a general right to a state legislature that was fairly comprised wasn’t enough to give them standing to even come to court. Instead, the Court ruled, the plaintiffs must prove that as disadvantaged Democrats in this case they were improperly either “packed” into a district with too many Democrats (thus limiting Democratic prospects to a small number of districts where Democrats are competitive) or “cracked” into a district with too few Democrats (thus diluting the electoral prospects of Democrats).
Justice Kagan, concurring in the judgment, concluded that plaintiffs should be able to relatively easily prove standing when the case is remanded to the District Court.
Standing is a concept that lawyers and judges think about a lot. If you’re not in the business of filing lawsuits, though, the concept can seem, well, a bit like a dodge. It can seem like the Court is side-stepping having to decide a tough case because the people who brought the case can’t show that they were immediately harmed. The reason the standing rule seems like that is because that’s exactly what it is. Generally, the rule requiring proof of standing is a good rule – it keeps the third branch of government from meddling in public affairs and venturing advisory opinions out of cooked up litigation. But in Gill, the standing dodge has left the country without clear guidance about an issue of pressing public concern.
2. When Considering Gerrymandering Cases, the Analysis is District-Specific, Not a State-wide.
The Court also held that when the District Court reconsiders the case it should review whether particular districts were wrongfully gerrymandered. The District Court should, if it finds unlawful gerrymandering, only adjust those districts that were proven to be improperly drawn. That will almost inevitably require changing adjacent, bordering districts to improperly drawn districts. You can’t, after all, tinker with the borders of one district without, by definition adjusting the borders of the one next to it.
But, the analysis for wrongful line drawing must be done district by district and only those districts that have to be adjusted to fix an illegal gerrymander can be redrawn by the courts. The trial court should not conclude that the entire state requires redistricting even if it finds that pernicious motives drove the entire districting process.
3. At Least Some of the Court is Skeptical of a Statistics-Based Assessment of Partisan Gerrymandering.
Chief Justice Roberts, writing for five Justices (the four reliably conservative Justices and swing Justice Kennedy), was conspicuous in his skepticism of whether statistics showing an advantage to one party over another, could ever prove that an individual voter was harmed by partisan gerrymandering:
“[This is] … the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
Justice Kagan, writing for the four Justices on the Court’s liberal wing, agreed that plaintiffs had failed to prove standing. She also agreed that the Court was correct to send the case back to the District Court to allow plaintiffs to try and prove standing. (Justices Thomas and Gorsuch wouldn’t have allowed even this much and would have dismissed the case permanently.)
Justice Kagan, though, was much more sanguine about the ability of plaintiffs to rely upon statistical evidence to show they were actually injured by partisan gerrymandering:
“When a voter resides in a packed district, her preferred candidate will win no matter what; when a voter lives in a cracked district, her chosen candidate stands no chance of prevailing. But either way, such a citizen’s vote carries less weight—has less consequence— than it would under a neutrally drawn map. So when she shows that her district has been packed or cracked, she proves, as she must to establish standing, that she is ‘among the injured.’”
So, the Court remains divided on whether partisan gerrymandering can be challenged on Equal Protection Constitutional grounds and, if it can be challenged, what the correct standard is to determine a violation.
If you’re a legislator with an eye on 2020 redistricting after the decennial census, you have to be a little worried that the Court isn’t clear on how much partisan politics you can permissibly consider when it comes time for you to draw electoral maps. And if you’re thinking of running for office, you might reasonably wonder if the district you’re looking at today will be the same one you’re running in tomorrow. If you’re a voter, you may be forgiven for asking what the heck your government leaders are doing.
4. Keep an Eye on the First Amendment.
Justice Kagan also noted that while Wisconsin plaintiffs may have an Equal Protection argument, because redistricting there packed and cracked groups of voters to dilute individuals’ electoral influence, those same plaintiffs might also have an important First Amendment argument. Drawing heavily, and transparently, on swing Justice Kennedy’s writings about the First Amendment, Justice Kagan reasoned that “if the [partisan] gerrymander ravaged the party [a voter] works to support, then he indeed suffers harm, as do all other involved members of that party. This is the kind of ‘burden’ to ‘a group of voters’ representational rights’ Justice Kennedy spoke of.”
When this case is reconsidered by the District Court on remand, expect plaintiffs to run with Justice Kagan’s suggestion to more fully flesh out their First Amendment claims in addition to their Equal Protection arguments.
Six months ago, Gill looked like it might reshape American politics for a generation. The Supreme Court declined that invitation on Monday.
But the concerns that citizens and legislators had six months ago haven’t gone away. How aggressively can legislators use big data to shape districts to preserve a majority in the legislature even if they lose a majority of votes? Can voters challenge, in court, this sort of high tech district drawing, or is their only remedy to win power in the districts that were drawn to keep them out of power? Can democracy work in that environment? Is it even the Court’s job to care about that or is its role a narrower one?