The outcome of the Supreme Court’s two major gerrymandering cases—Gill v. Whitford and Benisek v. Lamone—could hardly have been more anticlimactic from a legal perspective, and yet the significant political impact of the Court’s decision may be felt for years to come.
Like many others, I had hoped that the justices—particularly the swing justice, Anthony Kennedy—would use the unique opportunity before the Court to articulate a judicially-manageable standard for assessing the constitutionality of redistricting plans.
But that did not happen. Instead, the Supreme Court dodged the merits of both cases, invoking Article III standing grounds to remand the Wisconsin case (Gill) and procedural grounds to remand the Maryland case (Benisek).
Although Monday’s outcome might appear innocuous, a closer look suggests that opponents of partisan redistricting suffered a serious defeat. Accordingly, with gerrymandering still on the table as a legally permissible option for the 2021 redistricting process, the state elections in 2018 and 2020 are more important than ever. They will likely determine the contours of America’s legislative and congressional districts until the 2030s.
The Article III Problem
For opponents of gerrymandering, the trouble stems from the Supreme Court’s reasoning in the Wisconsin case.
In Gill v. Whitford, 12 Democratic voters in Wisconsin brought a constitutional challenge to the Republican legislature’s 2011 redistricting plan. The 2011 Wisconsin gerrymander, which relied on innovative computer modeling tools and vast new pools of big data, has given the Republican Party a virtual lock on the state legislature for the whole decade of the 2010s. The redistricting plan drew the legislative lines with such skill and precision that Wisconsin Republicans secured over 60% of the state Assembly seats even though their candidates only carried 48% of the popular vote.
Despite the compelling constitutional issues involved in Gill, Chief Justice Roberts held that the Wisconsin plaintiffs lacked Article III standing because their case was “a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences.”
The Court thus refused to address the merits of the plaintiffs’ claims.
To be sure, it was not all bad news for the plaintiffs. Normally a failure to meet Article III’s standing requirements is fatal, requiring immediate dismissal of the case on jurisdictional grounds. But the Court did not dismiss the Wisconsin challenge. As Chief Justice Roberts explained,
“This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances . . . we decline to direct dismissal.”
The Supreme Court remanded the case to the district court “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes.”
The Wisconsin plaintiffs thus lived to fight another day. But the bad news for the plaintiffs is they will face an even more uphill battle the next time around.
A Heavy Evidentiary Burden on Future Plaintiffs
The problem lies in the enormous scale and complexity of the evidentiary burden that plaintiffs must now meet in district-by-district challenges to partisan gerrymanders.
As Professor Richard Pildes explained in a New York Times op-ed yesterday,
It took years for the Wisconsin plaintiffs to develop the legal theories and amass the evidence used in the statewide challenge. But now, after Monday’s ruling, they must do more than just add plaintiffs and tweak arguments. They must individually analyze how and why the Republican legislature crafted each district and explain how each district dilutes the influence of Democratic voters, an extremely challenging task in a state like Wisconsin with 99 Assembly districts, 64 of which are held by Republicans.
Most troubling of all, the Supreme Court’s demand that plaintiffs prove their cases on a district-by-district level ignores the political reality of how partisan gerrymandering actually works. When a legislature engages in gerrymandering, it approaches the line-drawing from a statewide perspective. The goal is not to make any particular district more Republican or more Democratic. The goal is to create an ingenious web of districts statewide that will concentrate the minority party’s voters in certain districts (“packing”) and spread them out in other districts (“cracking”). The critical point is you cannot understand what happened in any single district unless you look at the statewide plan as a cohesive whole, where the dark art of the gerrymander becomes fully manifest.
But Monday the Supreme Court instructed the plaintiffs to take their focus away from the big picture, and instead make their case on a localized, district-by-district basis (such as the plaintiffs tried to do in the Benisek case, which involves a single congressional district in Maryland).
Besides ignoring how partisan redistricting actually works, the district-by-district approach makes it even easier for the Court’s skeptics to ridicule and marginalize the plaintiffs’ arguments. During oral argument in October, Chief Justice Roberts blasted the efficiency gap—the Wisconsin plaintiffs’ proposed tool for measuring excessive partisanship in redistricting—as “sociological gobbledygook.” His zingers will be even more biting when the plaintiffs can no longer rely on cumulative data showing the statewide partisan implications of a plan, but must instead limit themselves to a narrow focus on each individual district.
We already have a sign of things to come. During oral argument in the Benisek case, which involved a 2011 Democratic gerrymander of Maryland’s 6th congressional district, the dialogue descended to an absurd level of micro-analysis. The justices and attorneys pondered such minute details as the number of Republican candidates who competed for the 6th district nomination, the Cook Political Report’s evaluation of the district’s competitiveness in the 2012 general election, the location of district lines drawn near Chesapeake Bay, and the question of whether the gerrymandered 6th District included ordinary farms or more exclusive hobby farms (a distinction that drew laughter in the courtroom).
In short, the district-by-district analysis that the Supreme Court insisted upon in Monday’s ruling threatens to enmesh plaintiffs in a form of trench warfare from which they may never escape.
November’s Enormous Stakes
Consequently, there is now little reason to believe that the Supreme Court will offer a constitutional remedy for partisan redistricting anytime in the foreseeable future.
The political ramifications of that conclusion are significant. The stakes of the November midterm elections now loom even larger than they did before. As many commentators have noted for months, the party that controls the House of Representatives will determine the Russia investigation’s fate. If Democrats take control of the House on November 6, they will gain the subpoena power, which means that even if President Trump fires Special Counsel Robert Mueller and Deputy Attorney General Rod Rosenstein, the House of Representatives could pick up where Mueller left off.
But Monday’s Supreme Court ruling makes the November elections important for another reason. The next round of redistricting begins in 2021, just three years from now. If Monday’s outcome is any indication, the 2021 redistricting process will likely occur under the traditional pro-gerrymandering rules, which means that partisan redistricting will be the order of the day in the great majority of states.
Accordingly, the state elections on November 6 will have a far greater long-term impact on the nation’s political landscape than the congressional elections will. This fall’s elections feature 36 gubernatorial races and 6,066 state legislative races (82% of all state legislative seats nationwide). The outcome of those races—combined with state legislative races in 2020—will determine which party controls the 2021 redistricting process, a crucial undertaking that will govern the 5 federal and state election cycles between 2022 and 2030.
Regardless of which party wins a critical mass of state legislatures in 2018 and 2020, the one thing we can say with absolute confidence is that Democratic officeholders will always draw district lines to give Democratic candidates an unfair advantage, and Republican officeholders will always draw district lines to give Republican candidates an unfair advantage. The practice of gerrymandering thus epitomizes the disheartening reality that America’s idiosyncratic election rules make our political system much less democratic than it appears on the surface.
In light of the profoundly undemocratic consequences of partisan gerrymandering, it is deeply disappointing that the Supreme Court did not find a way to adopt a more lenient approach to the standing issue in the Wisconsin case. The plaintiffs raised issues that are fundamental to the democratic principles our Constitution is designed to protect. The Court’s insistence on a narrow district-level focus makes a hard job even harder for plaintiffs in search of a judicially-manageable solution to the problem of partisan gerrymandering.
The bottom line is, as a result of Monday’s ruling, it looks increasingly likely that incumbent politicians, not constitutional principles, will determine how the legislative and congressional line-drawing is done in 2021.
Comments