Supreme Court Casts Doubt on Statewide Gerrymandering Challenges

Ashley Oleson with the League of Women Voters of Maryland carries signs of Maryland's districts as nonpartisan groups against gerrymandering protest in front of the Supreme Court Wednesday

Supreme Court puts off weighing in on partisan gerrymandering

To make a strong enough case that the gerrymandered map has entrenched one party in power, challengers often wait for the results from a few election cycles.

Partisan gerrymandering has become a hot button issue in recent years as state legislatures have concerted efforts to draw electoral maps for political advantage with aid of technology that enables line drawing to be done in more precise ways.

In Benisek v. Lamone, the Supreme Court upheld the denial of the preliminary injunction in a per curiam opinion.

Roberts stressed that "we express no view on the merits of the plaintiffs' case". But outside of serving to warn anti-gerrymandering plaintiffs that they must take care to file their cases sooner, the decision resolves none of the bigger questions that were before the Court.

The difficulty with the Maryland case, the court said in the unsigned opinion, is that it concerned a request from challengers that courts step in now to keep 2018 elections from being held in districts that have been in place since 2011.

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And the outcome could hinge on what the justices think about three clear and candid sentences Lewis uttered 28 months ago. In similar court cases that successfully challenged racial gerrymanders (an area where federal courts have been more willing to engage, while they've largely avoided political gerrymandering), courts have always focused on the specific harm to voters in specific districts, rather than on statewide unfairness.

In virtually all of those states, the governor has a vote - or a veto - on whatever map the state legislature produces following the next census in 2020 and the redistricting of the country's congressional (and state legislative) lines that follows.

North Carolina, Texas, Ohio, Michigan and Virginia also have pending gerrymandering cases. The court's analysis provides a model for other state courts to use their state constitutions to better protect voters. The General Assembly set to work reconfiguring the map with Lewis in charge. Two of the judges said it also violated the First Amendment free speech rights of Democratic voters because their opinions are different from the party in power. "It is a case about group political interests, not individual legal rights", Chief Justice John Roberts wrote in the majority opinion, in which Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan joined. Redistricting software enables whichever party controls a statehouse to capture every bit of partisan advantage, she wrote, helping entrench the party in power, irrespective of voters' true preferences.

The second possibility, challenging a statewide map through an organizational plaintiff, could be tested in a North Carolina partisan gerrymandering case that could make its way to the Court next term.

The fight against gerrymandering was likely to rage on no matter what the judges in Gill v. Whitford decided, explains Jonathan Entin at Case Western Reserve University. Seven of the nine justices ruled that the case should be sent back to the district court for re-argument, which would give the plaintiffs another chance to establish standing. Gill holds that, when individual voters bring such a claim, "the remedy that is proper and sufficient lies in the revision of the boundaries of the individual's own district". Many had hoped for a historic ruling in which the court would determine whether blatantly partisan gerrymandering could be unconstitutional.

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How does gerrymandering affect American democracy?

The court issued a pair of unanimous rulings in partisan redistricting cases from Wisconsin and Maryland that decided very little, and ensured that any resolution by the nation's high court would not come before the 2018 midterm elections. "And the Supreme Court on technicalities tossed these cases back to the lower court", Phillips said. "The record evidence of constitutional injury presented in our case is overwhelming - legislators intentionally cracked and packed millions of North Carolina voters to silence their political voice".

The U.S. Supreme Court said a decision on the merits can not proceed without standing, and the plaintiff Democrats did not have it. The incumbent in the challenged district is not running for reelection. Robert Pittenger in the GOP primary in a district linking the Charlotte suburbs to Fayetteville.

Justices heard arguments in the fall in a dispute between Democratic voters and Wisconsin Republicans who drew maps that entrenched their control of the legislature in a state that is otherwise closely divided between the parties.

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