On Monday, the Supreme Court surprised observers by deciding not to decide Gill v. Whitford, the high-profile case about partisan gerrymandering in Wisconsin. Instead, the court remanded the case back to Wisconsin district court to give the plaintiffs “an opportunity” to provide better evidence about whether they had the right to bring the suit at all. That means the litigation about partisan gerrymandering is likely to continue. While any subsequent decision will come too late to affect the 2018 elections, it’s certainly possible cases will be decided in time to affect the 2020 elections.
So what did they decide?
Standing is the first hurdle
For a case expected to reveal clear differences of opinion among the justices, the decision in Gill v Whitford was surprisingly unanimous. But that doesn’t mean the justices agree about the case. Rather, they agreed about procedure: The plaintiffs did not have “standing” to bring the lawsuit. Opponents of gerrymandering had feared the justices would conclude that partisan gerrymandering — slanting the makeup of congressional districts to favor a particular party — was none of the courts’ business. That didn’t happen; the justices didn’t even consider that question.
So what’s the issue about “standing”? For plaintiffs to have the right to take an issue to court, they must show that they have suffered an “injury in fact” that the courts could remedy.
Here’s the problem: The only voter who testified at trial was William Whitford, a Democrat whose state assembly district remained heavily tilted toward Democrats even after state Republicans drew the state district map in 2011. The court was skeptical about Whitford’s complaint that the overall “composition and policymaking” of the state legislature diluted his influence as a voter. In short, skewing the election results to give Republicans more seats watered down his influence over the policy process.
The case did include other plaintiffs whose voices were indeed directly affected by “packing” of Democrats by concentrating their supporters into a small number of districts or “cracking” of Democrats by spreading out their supporters across multiple districts to dilute their influence. But those voters did not testify at trial; actual evidence about their injuries was limited.
One district at a time
In an opinion written by Chief Justice John G. Roberts Jr., the court reasoned that a voter ought only to bring a case about the district in which he or she actually lives. As it concludes, “In this case the remedy that is proper and sufficient lies in the revision of the boundaries of the individuals’ own district.” The plaintiffs had offered such evidence as statewide metrics about an “efficiency gap,” a summary statistic that reflects the relative number of Democratic and Republican voters that were “wasted” in a particular election. But since the justices wanted evidence about how individual voters were harmed by their specific districts, such overall evidence about partisanship across Wisconsin would not be helpful.
The court also rejected an analogy to the famous one-person-one-vote decisions of the 1960s. Those cases forced states to redraw districts that had different size populations — and as a result gave some voters (in districts with fewer people) more ballot power than others.
Following that line of thinking, the Wisconsin plaintiffs claimed that, under the 14th Amendment’s guarantee of equal protection under the law, a statewide analysis was required to demonstrate bias. But this time, the court suggested that partisan gerrymandering claims ought to be taken care of one district at a time.
In other words, not the whole state but only the “packed” and “cracked” districts would have to be fixed — without redrawing the whole state map, as the plaintiffs wanted.
What theory to apply
The court also noted it didn’t have clear precedents on these topics. In earlier decisions, the court has issued widely varying opinions. In Arizona State Legislature vs. Arizona Independent Redistricting Commission, it declared partisan gerrymandering is “incompatible with democratic principles.” But the court has also deferred to a government’s “political branches” — such as the state legislature — to seek partisan advantage as they wished.
The court suggests the plaintiffs ought to either change their theory or their evidence to make it easier to adjudicate the case. For instance, the justices suggested that the plaintiffs re-litigate the issue one district at a time. That’s how racial redistricting cases have made their way to the Court over the years. But even in those cases, as Justice Elena Kagan pointed out, the court has accepted state-level evidence of vote dilution.
It also suggested adopting a different legal theory altogether. Justices “leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”
Kagan offered a lifeline
In a lengthy concurring opinion, Kagan offered specific instructions for how plaintiffs could resuscitate the case. She suggested reframing the case around the First Amendment rather than the 14th. Kagan noted that the plaintiffs had mentioned the First Amendment’s right of association, but without outlining that argument clearly enough. With this approach, plaintiffs could avoid the need to show individual harm to a voter in a specific district because Democrats are located all around the state — and could emphasize statewide metrics about partisan bias.
Kagan suggested a First Amendment argument could allow the Democratic Party or other political groups to have standing as plaintiffs, enabling them to represent members across the state. For example, members of the disadvantaged party might complain that a biased legislative map harmed its ability to mobilize supporters or recruit candidates to run for the legislature. This would switch the focus from the individual whose vote was diluted to the political party whose functions were undermined.
This approach might also help the plaintiffs strategically: Swing voter Justice Anthony M. Kennedy is generally more open to First Amendment arguments than to equal protection claims from the 14th Amendment, as you can see in his opinion in Vieth v. Jubelirer.
David T. Canon is professor of political science at the University of Wisconsin-Madison and editor of Election Law Journal.