This morning, the Supreme Court declined to take on partisan gerrymandering, but highlighted opportunity for further attempts to fight gerrymandering in court. In two different cases, Gill v. Whitford and Benisek v. Lamone, the court issued opinions that dodged addressing the harmful effects of gerrymandering by concentrating on other aspects of the case.
The most impactful language for those concerned about gerrymandering was delivered in response to the Gill case, which challenged Wisconsin’s gerrymandered state house districts. John Roberts, writing with the backing of all the justices, held that the plaintiffs relied too much on evidence of the statewide impact of gerrymandering, and lacked standing to challenge the gerrymanders because they failed to show that they were subject to particular, individualized harm arising from residing and voting in their individual gerrymandered districts.
The Chief Justice’s musings that the fourteen plaintiffs in Wisconsin might not need a statewide solution to gerrymandering if their individual districts could be tweaked and redrawn on an individual basis are frustrating for those seeking a system where voters choose their elected officials, and not the other way around. However, the Chief Justice also offered a ray of hope by remanding the case and allowing the plaintiffs to show evidence in the lower court that the districts they live in were gerrymandered in a way that dilutes the impact of their votes, and thus violates their constitutional rights. The explicit recognition of vote dilution by the court as a harm created by partisan gerrymandering provides an avenue of attack for the plaintiffs of future gerrymandering cases.
While it is disappointing that the Supreme Court has postponed ruling on partisan gerrymandering for another term by resolving Gill on the narrow issue of standing, Justice Elena Kagan wrote a concurrence outlining two ways in which plaintiffs in other gerrymandering cases may be able to take up the mantle and successfully challenge gerrymandering in court. For one, those parties in gerrymandered districts could show that each of their individual districts had evidence of impermissible gerrymandering, and such a large amount of district lines would need to be changed that a statewide solution would be inevitable.
Additionally, a party seeking to end gerrymandering could focus on the statewide harm to their associational 1st Amendment rights. Important 1st Amendment claims could be litigated on the basis of a state government purposely undermining a group of voters or a political party by widespread and deliberate gerrymandering. The plaintiffs in Gill raised this point briefly throughout the argument phase of the case, and Justice Kagan sees opportunity in fleshing out the argument as the basis of a new challenge.
In the second case, Benisek v. Lamone, the Supreme Court followed the judgement of the district court in declining to issue an injunction that would step in and fix Maryland’s gerrymandered districts before the next election. The court cited Gill in an unsigned opinion as lacking a standard from which to base a solution to the gerrymandering on.
FairVote is confident the Court will recognize partisan gerrymanders as an egregious and undemocratic violation of the Constitution, even if we have to wait for another Court case to follow up on the avenues outlined in Justice Kagan’s concurrence. Until the judicial system is willing to take on gerrymandering, it is up to Congress and state legislatures to join the battle and fix not only redistricting, but districting itself.
Our system of winner-take-all, single-member districts locks in uncompetitive seats, insulates politicians from the ballot box, and pushes our politics to the extremes. We can fix that if Congress would pass one law: The Fair Representation Act (H.R. 3057), which would finally end safe red-and-blue districting, and put the power where it belongs: into the hands of voters.