The Corner

Law & the Courts

On Gerrymandering, SCOTUS Punts With a Purpose

Police officers stand in front of the U.S. Supreme Court in Washington, DC, January 19, 2018. (Eric Thayer/Reuters)

Earlier today, the Supreme Court issued its opinion in Gill v. Whitford — better known as the “Wisconsin gerrymandering case” — and the plaintiffs lost, at least for now. Wisconsin will not have to redraw its legislative districts. But the court didn’t rule for Wisconsin on the merits. Instead, it held that the plaintiffs hadn’t established Article III standing in the case. They hadn’t established a concrete, particularized, individual harm. Instead, they were arguing that they had suffered harms because they were Democrats, and Democrats as a whole were underrepresented in the Wisconsin legislature. The plaintiffs didn’t just want to fix their individual districts (the conventional response to an individualized harm). They wanted rework the entire system.

Justice Roberts, writing for a unanimous Court, explained the problem:

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking” . . . But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on “the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” Lance, 549 U. S., at 442. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. And the citizen’s abstract interest in policies adopted by the legislature on the facts here is a nonjusticiable “general interest common to all members of the public.”

The plaintiffs rested their case on a “theory of statewide injury to Wisconsin Democrats.” Thus, “It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

Ordinarily, when plaintiffs lack standing, the Court dismisses the case. But this time the Court remanded it back to the District Court “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence — unlike the bulk of the evidence presented thus far — that would tend to demonstrate a burden on their individual votes.” Justices Gorsuch and Thomas objected to the remand, arguing that the plaintiffs had their opportunity to present their standing argument, and failed.

So, the plaintiffs live to fight again, but this time they’re going to have to prove exactly how their individual districts are “packed” (too many voters of one party unnaturally jammed in one district) or “cracked” (voters are split from their districts to dilute partisan representation) and then seek a remedy for their specific districts. In other words, it just got much more difficult to seek a statewide revision of an allegedly partisan gerrymander.

Also today, the court issued a second unanimous opinion (this one per curiam) in a case brought by Maryland Republicans challenging a Democratic gerrymander. In Benisek v. Lamone, Supreme Court held that the district court didn’t abuse its discretion when it denied the plaintiffs’ motion for a preliminary injunction, but did so without opining on the merits of their case. SCOTUS held that the plaintiffs had failed to pursue their claims with “reasonable diligence” and that an injunction could have “chaotic” and “disruptive” effect on the electoral process.

Benisek is largely meaningless. Gill, however, is of some consequence. The case — while a “punt” on the merits — does have a clear purpose. It demonstrates once again that there’s no easy judicial path through what is (at its heart) a tangled political morass. When districting is delegated to the political branches of government, it will be — hold on to your hats — thoroughly political. States can choose different ways to district, but when a state chooses the political path, the Supreme Court’s default position should be to defer, absent clear and unequivocal constitutional violations. And, by the way, there is no constitutional right to a legislative composition that matches each party’s share of the vote.

Moreover, while there is no doubt packing and cracking in any political districting process, we can’t forget that the American people are in the midst of their own, voluntary gerrymander. The number of “landslide counties” (where one presidential candidate wins by 20 points or more) keeps increasing. People are packing themselves, and this “Big Sort” means that no judicial decision can deliver the sweeping solutions that many activists crave.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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