U.S. Supreme Court leaves open window for ending gerrymandering

Jun 23, 2018, 01:18
U.S. Supreme Court leaves open window for ending gerrymandering

Both cases leave the major fight for another day. "The basic argument against it says that partisan gerrymandering is inconsistent with basic concepts of self-government".

"The 2011 gerrymander was devastatingly effective", the plaintiffs wrote in their appeal to the Supreme Court, saying that "no other congressional district anywhere in the nation saw so large a swing in its partisan complexion following the 2010 census". Although the court dodged the big questions this time around, they can not be avoided for long.

The Supreme Court has decided not to decide in two cases of gerrymandering this week - Wisconsin and Maryland.

But waiting in the legal wings is another case, about North Carolina's current congressional districts, which many legal experts maintain provides an even cleaner opportunity for the court to decide when, if ever, such maps are impermissibly configured by one party to assure their domination over the other. The case had reached the Supreme Court at an early stage, and it will continue to be litigated before the trial court.

Justice Elena Kagan wrote a concurring opinion, joined by the court's other liberals, that provided a glimpse of what might have been.

Kagan laid out a road map for future challenges, including under a test Kennedy has proposed: that partisan redistricting schemes might be judged as punishment for voters due to their past political allegiances, which would violate the First Amendment. "By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions". "The Supreme Court left a lot of room and basically said, nearly straight out, that if you can prove some harm occurred, some broader harm occurred, then bring this back and perhaps we'll move forward with it", says David Helpap, UW-Green Bay Associated Professor of Political Science.

But before you look away from this story, remember the words of the French philosopher Jean-Paul Sartre: "I can always choose, but I must know that if I do not choose, that is still a choice". The court was powerless to consider the issue, he wrote, because the plaintiffs had not shown that their own voting power in their own districts had been diluted. Time will tell if Kagan can convince Kennedy that the First Amendment principles that form such a critical part of his legacy - the guarantee of associational freedom for all and the prohibition on viewpoint discrimination - require limits on extreme partisan gerrymanders that subordinate voters simply because of the party they associate with. Justice Anthony Kennedy turns 82 next month.

The Supreme Court punted the Wisconsin case, citing a technicality. In that case, now sitting on the Supreme Court docket awaiting action, voters challenged 10 districts as extreme partisan gerrymanders drawn by the GOP. A claim of vote dilution, as Roberts put it, is "district specific".

"Nothing in the court's opinion", she wrote, "prevents the plaintiffs on remand from pursuing an associational claim, or from satisfying the different standing requirement that theory would entail".

And Chief Justice John Roberts said that the plaintiffs in Wisconsin had not shown they were hurt individually by the legislature's actions, a necessary component for courts to intervene.

By contrast, the chief justice - who is well known for applying Article III standing limits very strictly - refused to close the courthouse doors on plaintiffs who had plainly suffered a legally cognizable injury.

"Indeed", she wrote, "the need for judicial review is at its most urgent in these cases".

Going forward, the plaintiffs in Gill should have no trouble at all meeting the low bar set by the majority opinion.

That "packing" and "cracking" is what the Wisconsin residents said their GOP state legislature's majority did in 2011. Worse, a district-by-district standard could potentially entrench existing gerrymanders, since a law dismantling a gerrymander will necessarily switch individual districts from one party's control to the other. "The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked".

Benisek is even narrower than Gill. In Wisconsin, the court said that the plaintiffs had failed to prove that they have the right to sue on a statewide basis, rather than challenge individual districts. This disposes of the case, but makes no new law at all.

TOTENBERG: Stanford law professor Nathaniel Persily, an elections expert who often helps courts draw new legislative maps, notes that in an era of high-speed computer technology, coupled with ever-more reliable data that predicts how citizens will vote, partisan gerrymanders are more durable and, in his view, more unsafe to democracy.

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