Supreme Court Avoids an Answer on Partisan Gerrymandering
Posted June 18, 2018 10:56 a.m. EDT
WASHINGTON — The Supreme Court declined Monday to decide two challenges to partisan gerrymandering, citing technical grounds.
In a case from Wisconsin, the court said plaintiffs there had not proved they had suffered the sort of direct injury to give them standing to sue. The court sent the case back to the lower courts to allow the plaintiffs to try again.
In a second case, from Maryland, the court ruled against the challengers in an unsigned opinion.
The decisions were a setback for critics of partisan gerrymandering, who had hoped that the Supreme Court would decide the cases on their merits and rule in their favor, transforming U.S. democracy by subjecting to close judicial scrutiny oddly shaped districts that amplify one party’s political power.
The court has never struck down a voting district as a partisan gerrymander, in which the political party in power draws maps to favor its candidates.
In the Wisconsin case, Gill v. Whitford, No. 16-1161, a three-judge U.S. District Court struck down the legislative map for the state Assembly, which had been drawn after Republicans gained control of the state’s government in 2010. The district court’s decision was the first from a federal court in more than 30 years to reject a voting map as an unconstitutional partisan gerrymander.
The Wisconsin map helped Republicans convert very close statewide vote totals into lopsided legislative majorities. In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.
In the Maryland case, Benisek v. Lamone, No. 17-333, Republican voters argued that Democratic state lawmakers had redrawn a congressional district to retaliate against citizens who had supported its longtime incumbent, Rep. Roscoe G. Bartlett, a Republican. That retaliation, the plaintiffs said, violated the First Amendment by diluting their voting power.
“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.”
Bartlett had won his 2010 race by a margin of 28 percentage points. In 2012, he lost to Rep. John Delaney, a Democrat, by a 21-point margin.
The two cases differed in several ways.
The Maryland case was brought by Republican voters rather than Democratic ones; it was focused on a single congressional district rather than a statewide for the state Assembly; and it relied solely on the First Amendment rather than a legal theory that includes equal protection principles.
In the past, some justices have said the court should stay out of such political disputes. Others have said partisan gerrymanders may violate the Constitution.
Justice Anthony M. Kennedy has taken a middle position, leaving the door to such challenges open a crack, though he has never voted to sustain one.
In 2004, he wrote in a concurring opinion on a gerrymandering case that he might consider a challenge if there were “a workable standard” to decide when such tactics crossed a constitutional line. But he said he had not seen such a standard.
The two new cases were part of a larger debate over political gerrymandering, one that has taken on new urgency with the advent of sophisticated software.
Both parties have engaged in partisan gerrymandering. But, these days, Republicans have an advantage following a wave of victories in state legislatures that allowed lawmakers to draw election maps favoring their party.
Some critics, like Arnold Schwarzenegger, a Republican and the former governor of California, say districts should be drawn by independent commissioner rather than politicians. Prominent Democrats, including former President Barack Obama and his attorney general, Eric H. Holder Jr., are pushing an effort to undo the redistricting gains Republicans made after the 2010 census when the next census is taken two years from now.