The Supreme Court Avoids Stepping on a Gerrymander or Two.

To the extent part of the political system is a swamp, one of its nastiest and longest-living inhabitants is the gerrymander.    The gerrymander's existence was first noted in an 1812 edition of "The Boston Gazette."  At that time,   Massachusetts had a governor named Elbridge Gerry.  The shape of a newly drawn state senate district--- a district that would strongly favor Governor Gerry's party--- resembled an amphibian.  Hence, this political newt-like creature was named a "gerry mander"-- and over time the two words evolved into a singular term: gerrymander.

The gerrymander has lurked within and feasted upon American politics in the two centuries since it was first sighted.   Its anti-democratic characteristics continue to "shape" elections to this day.  Over the years, the Supreme Court of the United States has opined about this creature, but the Court's rulings have never resulted in the extinction of the gerrymander.  Rather, some analysts believe the gerrymander has in essence achieved "protected status" in the United States.   

The most recent "gerrymander" opinions were released in June 2018.   Because of the upcoming elections and census, as well as consideration of a nominee to the Supreme Court,  these "voting rights" issues are all the more pertinent.

The opinions concerned voting districts in Wisconsin and Maryland.  In both instances, SCOTUS majorities avoided ruling on the substantive issue of fairly-drawn voting districts, relying on procedural  technicalities to reach their decisions. This "footnote" (blog) will focus on the Wisconsin decision; the Maryland decision will be summarized in a forthcoming entry.

The Wisconsin dispute, Gill et al v. Whitford (SCOTUS No-1161)(opinion issued June 18, 2018), stemmed from claims of unfair "cracking and packing" of single-member state legislative districts drawn by the Wisconsin Legislature following the 2010 census.   This districting plan is known as Act 430.   The Gill plaintiffs claimed that Act 430 rearranged the districts, spreading Democrats into districts where they would never be able to achieve a majority; and also "packing" Democrats into certain districts that were already heavily Democratic.  The effect of Act 430 made Democrats less competitive overall, resulting in "vote dilution" for that party.

The Court majority approached the case on the procedural issue of "standing"--whether the plaintiffs have the legal right to pursue these claims in federal court.   The Court determined that the particular plaintiffs did not have legal standing because voting is "individual and personal in nature" so the challenging voters must be able to demonstrate that they suffered a legal injury entitling them to proceed with their claims in federal court. Gill held that the plaintiffs' claims that the gerrymandered districts represent a controversy that is "statewide in nature" ---thereby, the plaintiffs argued,  entitling them to seek relief in a federal court. In essence, the Court ruled that the plaintiffs did not put forward the parties, nor the legal and factual basis to warrant the attention of the federal courts---the plaintiffs failed to establish the facts and legal arguments to prove they had "standing" in the federal courts.

Interestingly,  Chief Justice Roberts authored the Gill opinion, but was joined by Justices Kennedy, Ginsburg, Breyer, Alito, Kagan and Sotomayor. Justices Thomas and Gorsuch joined in parts of the majority opinion.   The most instructive part of Gill, however, is the detailed concurring opinion penned by Justice Kagan, and joined by Justices Ginsburg, Breyer and Sotomayor.   In the concurring opinion,  Justice Kagan explained that  she agreed with the majority opinion. She continued, however, to set forth a road map for these and future plaintiffs who contend their state's districts result in vote dilution.  Justice Kagan writes:

"Everything said so far relates only to suits alleging that partisan gerrymander dilutes individual votes.  That is the way the Court sees this litigation. [citation to record omitted].  And as I'll discuss, that is the most reasonable view.  [citation to record omitted].  But partisan gerrymanders inflict other kinds of constitutional harm as well.  Among those injuries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations and some of their members.  The  plaintiffs here have sometimes pointed to that kind of harm.   To the extent they meant to do so, and choose to do so on remain, their associational claim would occasion a different standing inquiry than the one in the Court's opinion." (emphasis added).

The concurring opinion describes how gerrymandered districts can be more challenged on First Amendment grounds to overcome "legal standing" arguments.  Justice Kagan also chronicled the beginnings and development of the term "gerrymander."   Further, she explained the troubling impact of technology in crafting legislative districts:

"And our history offers little comfort.   Yes, partisan gerrymandering goes back to the Republic's earliest days; and yes, American democracy has survived.  But technology makes today's gerrymandering altogether different from the crude linedrawing of the past. New redistricting software enables pinpoint precision in designing districts.  With such tools, mapmakers can capture every last bit of partisan advantage, while still meeting traditional districting guidelines (compactness, contiguity, and the like). [citation to record omitted].  Gerrymanders have thus become ever more extreme and durable, insulating office holders against all but the most titanic shifts in the political tides.   The 2010 redistricting cycle produced some of the worse partisan gerrymanders on record. [citation omitted]   The technology will only get better, so the 2020 cycle will only get worse."

Justice Kagan's concurring opinion is a great example of how  Supreme Court decision-making can reference and take into account the historical and practical context of a legal issue.  The impact of technology, for example, would not typically find its way into a constitutional opinion penned by a strict adherent to "strict constructionism."  The Founding Fathers did not discuss how computer software can undermine the democratic process.  

The conclusion of the concurring opinion articulates the role of the Supreme Court in today's world:

"Courts have a critical role to play in curbing partisan gerrymandering.  Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that  'a denial of constitutionally protected rights demand judicial protection.' [citation omitted]  Indeed, the need for judicial review is at its most urgent in these cases.  For here, politicians' incentives conflict with voters' interests, leaving citizens without any political remedy for their constitutional harms. Of course their dire need provides no warrant for courts to disregard Article III [the Constitutional section dealing with the establishment of courts].  Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue.  Courts---and in particular this Court---will again be called upon to redress extreme partisan gerrymanders.  I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law."













Mari Bush