No bright line ruling likely on SCOTUS gerrymandering cases
The U.S. Supreme Court soon may redefine how legislators get elected to office. Two high-profile cases that seek to rein in partisan gerrymandering are slated for decisions by late June. The rulings could be landmarks. But, however the court comes out, the fight against gerrymandering will be far from over.
The cases are complementary — they focus on the wrongdoings of different political parties at different levels of government. In Gill v. Whitford, Democrats in Wisconsin allege that the state legislative map, created by Republican lawmakers, unconstitutionally distorts election outcomes in favor of the GOP, giving Republicans legislative control even when Democrats outpoll them statewide. In Benisek v. Lamone, the tables are turned. Republicans in Maryland allege that Democratic lawmakers unconstitutionally dismantled a GOP-held congressional district.Yet, to some extent, the plaintiffs in the two cases are at odds. They advocate distinctive legal tests for identifying unlawful gerrymanders. The Wisconsin plaintiffs focus on the partisan imbalance of the overall state legislative map. They urge the court to prohibit mapmakers from deliberately enabling one party to win legislative seats more efficiently than its rival. The Maryland case focuses on a single district. The plaintiffs want the court to bar mapmakers from intentionally reshaping a district to diminish one party’s chances there.
What might the justices do? We see several possible outcomes.
At one end of the spectrum, the court could categorically reject both challenges as “nonjusticiable.” Partisan gerrymandering, they could say, is fundamentally a political matter, not a legal issue for the courts. Four of the nine justices said just that back in 2004, when the court addressed partisan gerrymandering head on.
At the other end of the spectrum, the court could side with the challengers in both cases and endorse both proposed legal tests. Even under this scenario, the challengers will have more work ahead. It is too late to impose new maps for the 2018 election. Instead, the challengers will aim to have compliant maps in place for 2020. This will likely entail further litigation, because the party in power presumably will try to maintain as much of its existing advantage as possible. Another fight looms when the next round of redistricting takes place after the 2020 census.
A mixed result may be the most likely. The justices could turn away one or both cases on procedural grounds. In particular, a majority may hold that the plaintiffs in the Wisconsin case lack legal standing to challenge the entire statewide map. (Reading the tea leaves, court-watchers have deduced that Chief Justice Roberts, who expressed skepticism about plaintiffs’ standing at oral argument, is probably drafting the Wisconsin opinion.)
A final, unsatisfying possibility is that a majority will not coalesce behind any result. That’s what happened in the 2004 gerrymandering case, which is why the issue is back now. If the justices are struggling to find common ground, they might schedule the cases for re-argument this fall. And they could even add a third case to the mix — a challenge to a North Carolina gerrymander that is also teed up for review. Justice Breyer alluded to this re-argument option during oral argument in the Maryland case.
Win or lose at the high court, reformers will continue to press ahead in other forums. The Wisconsin and Maryland cases have helped spark unprecedented activism around partisan gerrymandering. In recent months, advocates convinced the Pennsylvania Supreme Court to invalidate that state’s gerrymandered congressional districts on state-law grounds. Other state courts could follow suit even if the U.S. Supreme Court closes the door to federal litigation.
Outside the courts, several states are reforming the mapmaking process to take redistricting out of the majority party’s hands. A few states, including Arizona and California, already assign the task to independent commissions. Iowa relies on nonpartisan civil servants. Within the past few weeks, Ohio voters overwhelmingly approved a state constitutional amendment designed to encourage bipartisan line-drawing. Several more states, including Colorado, Michigan, and Utah, will likely have redistricting reform on the ballot this fall. Such structural changes have the potential to curb partisan abuses more comprehensively than case-by-case adjudication.
Ultimately, tackling partisan gerrymandering will require a sustained effort from jurists, legislators and citizens’ groups. What the Supreme Court says in the coming weeks could matter a lot, but in the coming months and years, the court of public opinion may play an even more decisive role.
Barry Burden is professor of political science and director of the Elections Research Center at the University of Wisconsin-Madison. Follow him on Twitter @bcburden.
Robert Yablon is assistant professor of law at the University of Wisconsin-Madison.