In a setback for political reformers, the Supreme Court on Monday refused to strike down partisan gerrymandering as unconstitutional and set aside cases from Wisconsin and Maryland for procedural reasons.
In Wisconsin, several Democratic voters had sued to challenge a Republican-drawn election map that ensured the GOP would win 60% of the seats in the state Assembly even when the Democrats won a slim majority of the votes statewide.
In Maryland, several Republican voters had challenged a Democratic scheme to redraw a congressional election district so as to replace a veteran Republican with a Democrat.
The justices decided unanimously that both cases were flawed. In Gill vs. Whitford from Wisconsin, Chief Justice John G. Roberts Jr. said voters had standing to sue only over the makeup of their own voting district, not the statewide map, as the plaintiffs had done.
In the Maryland case, Benisek vs. Lamone, the justices agreed that the lower court properly refused to change the districts before the 2018 election.
The outcome left the high court largely where it began on gerrymandering: split 4-4 between Democratic- and Republican-appointed justices, and still waiting for Justice Anthony M. Kennedy to decide when partisan gerrymandering crosses the constitutional line.
The four conservatives believe that drawing election districts is inherently a political decision and that courts should stand aside.
The four liberals believe that drawing election districts to ensure one party’s victory violates the basic principles of democracy. “At its most extreme, the practice amounts to rigging elections,” Justice Elena Kagan said Monday in a concurring opinion.
Kennedy has repeatedly said he is troubled by election maps that are drawn for purely partisan advantage, but he has always stopped short of voting to strike down an election district as unconstitutionally partisan. He said nothing Monday, except to join the court’s 9-0 opinion in the Wisconsin case as well as a brief, unsigned decision in the Maryland case.
The court’s failure to rule on the broader issue is victory of sorts for Republicans and a defeat for Democrats because the GOP has had a big advantage in the closely divided states, largely thanks to partisan gerrymandering done after the 2010 census.
Once a decade, after each census, election districts need to be redrawn so that they have about the same number of voters. In most states, leaders of the party in power are free to draw these districts so as to give their party a decided advantage that will last for 10 years. The strategy is familiar: Pack the voters who are likely to support the other party into just a few districts, while giving your side a safe majority in most of the other districts.
In 2010, Republicans won big victories across the country in the midterm election, and they took full control in closely divided states such as Pennsylvania, Ohio, Michigan, Wisconsin and North Carolina.
Election law reformers had hoped for a landmark ruling that would strike down, at a minimum, extreme examples of gerrymandering.
On Monday, the lawyers who brought the Wisconsin case said they were disappointed but would not give up their legal fight. “This leaves us with a great deal of options” for reviving the gerrymandering lawsuit, said Paul Smith, a lawyer for the Campaign Legal Center. “It puts us, unfortunately, back in the district court.”
Still awaiting action is a pending appeal from North Carolina, where several voters sued to challenge a GOP map that gave Republicans a 10-3 advantage in its state’s congressional districts. The justices will probably decide in the next two weeks whether to hear that case or send it back to a lower court.
Shortly after the court’s announcement, prominent Democratic attorney Marc Elias sent a tweet suggesting a new approach: “In light of today’s SCOTUS decision in Gill, it seems that the most logical (and perhaps the only) plaintiffs with standing to bring a statewide partisan gerrymandering claim are the political parties (or quasi-parties, like certain partisan superpacs).”
In her concurring opinion, Kagan suggested a similar idea: that the parties or party officials should sue on behalf of themselves or their supporters. “Consider an active member of the Democratic Party in Wisconsin,” she wrote. “If the gerrymander ravaged the party he 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 ‘a group of voters’ representational rights’ that Justice Kennedy spoke of” in the past, she said.
What was left unsaid was that Kennedy could have adopted this view in the Wisconsin case but did not.
It is the second time this month that Kennedy dodged deciding a major question before the court. In the case of the Colorado baker who refused to make a wedding cake for a same-sex couple, the court faced a choice between granting an exemption based on religious liberty or upholding gay rights. Kennedy avoided the choice and instead ruled only that the baker was treated unfairly during a hearing before a state commission.
When the court heard arguments last fall in the Wisconsin case, Kennedy said it would be unconstitutional for lawmakers to devise an election map with the intent to assure their party an unfair advantage. But in the end, he agreed with Roberts that the handful of Wisconsin voters could not sue to complain about districts where they did not live.
The lead plaintiff in the Wisconsin case, William Whitford, was a retired law professor and a Democrat who lives in Madison. He votes in a heavily Democratic district, but his complaint was that he had no effective voice in the state Legislature because Republicans had drawn a statewide map that all but guarantees they would retain control for a decade. His lawsuit noted that in 2012, Democrats won more than 51% of vote, yet the GOP retained its 60-vote supermajority.
Whitford’s lawsuit won before a three-judge court that said the Republicans had gerrymandered the districts to “entrench” themselves in power.
But Roberts, who had been openly skeptical of such claims, said individual voters like Gill had no standing to sue over a state map. “An individual voter in Wisconsin is placed in a single district. He votes for a single representative,” so his “injury is district specific.”
This “is a case about group political interests, not individual rights,” Roberts wrote. “But this court is not responsible for vindicating generalized partisan preferences. The court’s constitutionally prescribed role is to vindicate the individual rights of people appearing before it.”
But he stopped short of dismissing the case entirely. He said it should go back to a district court in Wisconsin to consider whether the plaintiffs could show evidence that would call for changes in other districts.
Kagan said that she agreed with the outcome but that the problem of standing “may be readily fixable.” Other voters from other districts could be added to the case. “Given the charges of statewide packing and cracking, affecting a slew of districts and residents, the challengers could make use of statewide evidence and seek a statewide remedy,” she wrote. Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor agreed.
Meanwhile, Justices Clarence Thomas and Neil M. Gorsuch said they would have dismissed the case entirely.