Partisan Gerrymandering Arrives (Again) at the Supreme Court

Zack Damron

On Friday, the Supreme Court let the nation know that it was ready to enter into the fray when it comes to partisan gerrymandering…at least, that’s what scholars and experts are hoping for (well, maybe some of them).

These new cases out of North Carolina and Maryland are actually not very new at all. North Carolina has had some major problems when it comes to gerrymandering, with infamous District 12 coming into focus numerous times under racial gerrymandering. The Court, two terms ago, held in Cooper v. Harris that District 12 must be redrawn because it unconstitutionally used a “racial target” and the “target had a direct and significant impact on the district’s configuration.” The Supreme Court summarily vacated and remanded to the District Courts in light of the ruling in Gill. In Gill, the Wisconsin Legislature adopted a map that affected the state legislative district boundaries for the area around Milwaukee and Madison. The challengers to the map noted that under the proposed map, the Republican Party would maintain a majority in the state house even though it only receives 48% of the vote. The Democratic Party would then have to receive 54% of the vote in order to form a majority. The Court held that these plaintiffs did not have the standing here to bring suit in order to strike down the map as a partisan gerrymander.

The North Carolina districting plan came shortly after the Court’s ruling in Cooper, which sought to incorporate both racial and partisan data into keeping a district, which would “maintain the current partisan makeup of North Carolina’s congressional delegation.” The challengers alleged that the new maps violated the Equal Protection Clause of the 14th Amendment and the First Amendment.

The North Carolina three-judge district court ruled first that the challengers had standing to sue, and then agreed with the challengers that the plan violated the Equal Protection Clause and the First Amendment by, according to the court, discriminating against non-Republican voters. The State filed an emergency application for a stay directly to the Supreme Court (certain election law issues may be appealed directly to the Supreme Court), which the Court granted until it decided Gill. The Court then vacated and remanded the case back to the three-judge district court for reconsideration in light of Gill. The District Court again decided that the Plaintiffs had standing to sue and concluded that the plan still violated the First and Fourteenth Amendments.

The Redistricting Committee formed the map coming out of Maryland in 2011. The challengers allege that the Commission used a so-called “Democratic Performance Index” to predict how a Democratic candidate would fair in a particular district. They also allege that the district in question (Sixth District) swung from being predominantly Republican to predominately Democratic, while the move of Republican voters out of the Sixth District into the Eighth District had relatively no impact on the way that district votes. The challengers sued based on their First Amendment rights of association.           

On the contrary, the case out of Maryland was originally decided by a one-judge District Court, which decided not to convene a three-judge panel. A three-judge panel was later convened, with the help of the Supreme Court, which ruled that the Plaintiffs had standing to sue under the First Amendment. After all of the necessary hurdles had been jumped, the District Court granted summary judgment in favor of the challengers, with the court agreeing with their “First Amendment claim that their representational rights have been impermissibly burdened by reason of their political views and voting history.”

The Supreme Court has a confusing history in deciding whether partisan gerrymandering cases can even be heard in the first place. The Court decided in Davis v. Bandemer that these particular claims are justiciable (lawyer-speak for “able to be tried”); however, no one opinion garnered enough votes to put a precise test on how much partisanship is too much when drawing maps. This fact lead Justice Scalia to argue for himself and three others, in Vieth v. Jubelirer that such claims are not justiciable because there is no set “manageable standard,” meaning that the claim is a “political question” that the Court cannot entertain. The key vote was, surprise-surprise, Justice Kennedy. Kennedy determined that the Vieth’s claim could not be heard because there was no manageable standard, BUT he stated that there is a standard out there; it is up to the litigants to produce it. A sort of an “I’ll know it when I see it” standard rears its head again. Justice Kennedy did give us a glimpse into that beautiful mind when he determined that the First Amendment may (possibly) give litigants that standard that he’s looking for. But again, he didn’t say so exactly.

Recently, the Court had an opportunity to wade through the gerrymandering thicket in Gill v. Whitford, which came out of Wisconsin. However, the Court punted on the merits by ruling that the plaintiffs did not have standing to sue. Chief Justice Roberts held for a unanimous Court that the plaintiffs here did not prove that their individual votes had been diluted due to being affiliated with the Democratic Party. In general, a plaintiff may not make a statewide challenge because this challenge is not “particularized” enough to indicate that the plaintiff’s individual rights had been violated. This gave the plaintiffs enough room to tailor their claims to meet this standard, and possibly have the merits of their claims heard before the nine-member Supreme Court.

It’s hard to know where these new cases from North Carolina and Maryland will turn out. Everyone is hopeful that we don’t have another punt like we did in Gill. Will the Supreme Court once and for all decide whether or not such claims can be heard, and if so, how far is too far to be unconstitutional? With Justice Kennedy gone, does Justice Scalia’s view that these claims can never be heard finally have enough votes to be binding law? Or, does the First Amendment provide the manageable standard to garner five votes and provide litigants a standard to use when bringing these sort of challenges? Without question, the ones to watch are Chief Justice Roberts and Justice Kavanaugh. With Kennedy out, it will be interesting to see if Roberts takes hold of the middle and provides the “swing vote” one way or the other. Justice Kavanaugh took Kennedy’s place on the bench, and no one really knows how he will vote as he never faced a case quite like this as a lower court judge.

The end of partisan gerrymandering may be nigh, but we’ll have to wait until the summer to find out.