Opponents of partisan redistricting have reason for concern this morning.
There is still no decision yet in the two major partisan gerrymandering cases before the U.S. Supreme Court: Gill v. Whitford, the Wisconsin case argued in October 2017, and Benisek v. Lamone, the Maryland case argued in March 2018. But we received a big clue yesterday when the Court announced its decision in Epic Systems Corp. v. Lewis, a case that has nothing to do with election law.
Roberts Has Gill?
The majority opinion in Epic Systems was authored by Justice Gorsuch, which leaves Chief Justice Roberts as the only member of the Court who has not yet written an opinion from the October sitting. What makes that important, as Prof. Rick Hasen pointed out as soon as the Epic Systems ruling was released, is the fact that there is only one case from the October sitting that the Court has not yet ruled on: Gill v. Whitford.
The circumstantial evidence thus suggests that Chief Justice Roberts will write the majority opinion in Gill.
If true, it could spell doom for the plaintiffs (the appellees in Gill) who are challenging the Wisconsin gerrymander. During oral argument on October 3, Roberts made no secret of his skepticism of the Wisconsin plaintiffs’ claims. He called the “efficiency gap” (which is the plaintiffs’ proposed measure for determining when partisan redistricting violates the Constitution) “sociological gobbledygook.” He also charged the plaintiffs with advocating for proportional representation, which—as he emphatically noted—is a form of representation that “has never been accepted as a political principle in the history of this country.”
Most troubling of all for the plaintiffs, Roberts claimed that a ruling for them would undermine the Court’s apolitical reputation. The “intelligent man on the street,” Roberts observed, would see a victory for the plaintiffs as evidence that “the Supreme Court preferred the Democrats over the Republicans.” Such a development, Roberts warned, would “cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”
So if Roberts has the Gill opinion, it likely means that the conservative justices—who have viewed partisan redistricting cases as non-justiciable since the Vieth v. Jubelirer case in 2004—won over Justice Anthony Kennedy, the swing vote in the gerrymandering cases.
Benisek Still Viable
To be sure, it’s not all bad news for gerrymandering’s opponents.
First, the Benisek case—which was argued in March—is still very much alive (at least for now) and it could provide an independent basis for the Court to invalidate partisan gerrymandering. Benisek involves a First Amendment challenge to a 2011 Maryland redistricting plan, which is precisely the type of claim that Justice Kennedy encouraged plaintiffs in gerrymandering cases to bring in his 2004 concurring opinion in Vieth. In his Vieth concurrence, he wrote:
“Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.”
Not unwisely, the plaintiffs (who are the appellants in Benisek) frequently cited to Kennedy’s Vieth concurrence in their briefs. Thus, even if the Gill plaintiffs (whose claims rely primarily on the 14th amendment) go down to defeat, it is conceivable that the challengers in Benisek could still prevail.
The Standing Issue in Gill
Second, as Prof. Richard Pildes explained on Election Law Blog yesterday, it’s possible that Kennedy has only joined the conservatives in Gill for the purpose of dismissing the case on narrow standing grounds.
The standing problem in Gill arises from the fact that the Wisconsin plaintiffs are alleging statewide injury, and they include a Democratic voter who lives in Madison, a heavily Democratic city that has consistently elected Democrats to the state legislature by overwhelming margins. Arguably, therefore, the Madison plaintiff has suffered no direct injury from the statewide Republican gerrymander.
The Supreme Court has consistently taken a hard line on the “injury-in-fact” requirement for Article III standing. For example, in the 1992 case of Lujan v. Defenders of Wildlife, the Supreme Court held that to assert standing, a plaintiff must allege an injury that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Moreover, in the 2016 case of Spokeo v. Robins, the Court emphasized that “[f]or an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’”
Did the Democratic plaintiff from Madison suffer a “personal and individual” injury in the Gill case? Under the 2011 GOP legislative redistricting plan, Democratic voters in the Madison area have no trouble electing Democrats to the state legislature. The real battle is over the purple swing districts that the GOP-controlled legislature crafted to minimize the influence of Democratic voters (by cramming the Democrats into blue districts like those in the Madison area). Chief Justice Roberts raised this issue during oral argument, expressing astonishment that a “plaintiff who votes in Madison,” whose “vote isn’t diluted in anyway,” would still be “able to complain about voting anywhere in the state.”
Thus, by Roberts’s line of reasoning, only Democratic voters in heavily gerrymandered districts won by Republican candidates should have standing to challenge the 2011 Wisconsin redistricting plan.
It was quite clear from the first minute of oral argument in Gill that the standing issue troubled Kennedy. The justice interrupted the Wisconsin solicitor general’s opening statement to tell him that the state of Wisconsin (which is defending the 2011 redistricting plan) had a “strong argument” on standing. Kennedy also observed that “there is no case that directly helps” the Wisconsin plaintiffs on the standing issue.
So it is possible that Kennedy has simply concluded that the case should be dismissed on standing grounds.
Tea Leaf Reading
It’s important to emphasize that the Republican plaintiffs in the Benisek case do not have the same standing problems as the Democratic plaintiffs in the Gill case. Benisek arises from a district-based challenge to the 2011 Democratic gerrymander of Maryland’s 6th Congressional District, whereas Gill involves a a statewide challenge to the entire Wisconsin redistricting plan. Thus, if Gill falls apart on standing grounds, Benisek will still be viable.
So it is not all bad news for gerrymandering opponents. Nevertheless, the fact that Roberts appears to be the author of the Gill opinion is not a good sign for the challengers. At least for the moment, the tea leaves don’t look particularly promising for opponents of partisan gerrymandering.