Why the Supreme Court Punted in Redistricting Case

Why the Supreme Court Punted in Redistricting Case
AP Photo/Manuel Balce Ceneta, File
Why the Supreme Court Punted in Redistricting Case
AP Photo/Manuel Balce Ceneta, File
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In the eagerly awaited redistricting case, Gill v. Whitford, the United States Supreme Court vacated a lower court ruling directing the Wisconsin legislature to redraw Assembly district maps that were alleged to have been gerrymandered to favor Republicans. The court did not accept the plaintiffs’ claim, finding that they seemed to lack standing (i.e. they had not demonstrated the particularized individual injury that is required to bring litigation in a federal court).  The court did not dismiss the case but remanded it to give the plaintiffs an opportunity to show that they have suffered such an individualized harm, i.e., that their own districts were drawn in a way that diluted their vote. 

Perhaps more importantly the court did not attempt to create a new, arbitrary standard or doctrine that could be used to dictate how states draw maps. Such a decision would have disenfranchised voters in every state and dealt a serious blow to states’ rights. Fortunately, the court did not go that route.   

In a sense, it is fair to say that the justices’ punted. But that punt may well have pinned the plaintiffs deep inside their own territory. Here's the problem. The plaintiffs claim in Gill focused on the statewide outcome of elections conducted under the challenged maps. The problem was not that the districts are oddly shaped or violate traditional districting principles (they don’t) but that the lines had been manipulated in a way to “pack” and “crack” Democrats in more or less subtle ways, so the electoral outcomes exhibited “partisan asymmetry.” Put simply, the percentage of seats won by Democrats significantly lagged behind the percentage of the aggregate votes for Democratic Assembly candidates. This caused Judge William Griesbach, who dissented from a lower court decision finding that the maps were an unconstitutional partisan gerrymander, to complain that his colleagues found a “gerrymandering without a gerrymandering.” 

I have criticized the merits of the plaintiffs’ claim here. Even though the justices’ decision did not fully reject the plaintiffs’ claim, their treatment of standing may turn out to be fatal for the plaintiffs’ claim. The court made clear that an individual's claim of vote dilution cannot be based on the fact that maps have been drawn in a way that diminishes the statewide prospects for that voter's preferred political party. The majority held that the plaintiffs’ interest "in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking,” does not constitute "an individual and personal injury of the kind required for Article III stand­ing." 

If that's true, then plaintiffs are going to have to show some constitutional violation in the drawing of their individual district and that harm cannot be inferred from a statewide impact. In a concurrence joined by the other liberal justices (but, significantly, not by Anthony Kennedy), Elena Kagan suggests an easy way out. All a plaintiff must do is show that another set of statewide maps would have resulted in more "balanced" districts, conferring standing on plaintiffs whose districts "could be" made more competitive. But that seems to simply restate the theory of injury that the majority rejected. There must be some constitutional injury that is distinct from the statewide effect. Showing that some voters could be placed in more competitive districts conflates remedy with violation. 

The choice not to decide avoids what would have been an unwelcome and anti-democratic development. Democrats in Wisconsin (and elsewhere) tend to win fewer seats than the total statewide votes for Democratic candidates because they are more geographically concentrated. The plaintiffs in Gill sought nothing less than a constitutional obligation to draw lines in a way that would compensate for this national disadvantage. At least so far, the court has not mandated a duty to “gerrymander” for “competitiveness.” 

And by making clear that the court “is not responsible for vindicating generalized partisan preferences” and that standing must be rooted in a particular district level injury, it may be unlikely ever to do so.  Given that the maps in Wisconsin appear to conform to traditional redistricting principles, it may be a challenge for a plaintiff to establish standing with respect to any of them. But even if individual plaintiffs can point to something about the creation or contours of their district that might support a claim, the majority also warned that the remedy may be district-specific. 

Chief Justice John Roberts’ decision warned that “standing is not dispensed in gross” and that “a plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.” The court’s decision can be described as a punt, but it may have hit the coffin corner.

Rick Esenberg is president of the Wisconsin Institute for Law & Liberty.

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