Supreme Court sidesteps gerrymandering decision

More challenges expected to districts configured to shape political power

WASHINGTON — The Supreme Court on Monday avoided answering the central questions in two closely watched challenges to partisan gerrymandering. In a pair of unanimous decisions, the court instead ruled on technical grounds, turning potential constitutional blockbusters into minor rulings.

The decisions left the door open to further challenges. But they were nonetheless a setback for critics of partisan gerrymandering, who had hoped that the Supreme Court would transform U.S. democracy by subjecting to close judicial scrutiny oddly shaped districts that amplify one party’s political power.

The court instead kicked the can down the road. A new challenge to partisan gerrymandering, from North Carolina, is waiting in the wings and could allow the justices to try again to find a standard that could allow constitutional challenges to voting maps warped by politics.

The more substantial decision Monday came in a case from Wisconsin. The court said the plaintiffs there had not proved they had suffered the sort of direct injury that would give them standing to sue. The justices sent the case back to a trial court to allow the plaintiffs to try again to prove that their voting power had been directly affected by the way state lawmakers drew voting districts for the state Assembly.

For now, Chief Justice John Roberts wrote for the court, there was no good reason to think the plaintiffs had suffered that sort of harm. For instance, the lead plaintiff, the chief justice wrote, lived in what is “under any plausible circumstances, a heavily Democratic district.”

That meant, Roberts wrote, that the plaintiff could not pursue a claim that his voting power within his district had been diminished by the current voting map. The chief justice acknowledged that other legal theories might allow proof of harm focused on the entire state rather than on a single voting district.

“We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies,” Roberts wrote.

In a concurring opinion, Justice Elena Kagan set out a detailed road map for how such claims could be framed and presented. She was joined by the other members of the court’s liberal wing — Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

Kagan added that courts have an important role to play given the harm caused by partisan gerrymandering. “More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will,” she wrote. “And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches.”

“Indeed,” she wrote, “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.”

In a second concurring opinion, Justice Clarence Thomas, joined by Justice Neil Gorsuch, agreed that the challengers lacked standing to sue. But they said they would have dismissed their case outright rather than giving them another chance to present proof.

In the second case decided Monday, from Maryland, the court unanimously ruled against the challengers in a brief unsigned opinion. The court said the challengers had waited too long to seek an injunction blocking a congressional map drawn in 2011.

“In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, yearslong delay in asking for preliminary injunctive relief weighed against their request,” the opinion said. It added that there was not enough time for orderly consideration of the case before the 2018 election season.

The Maryland case reached the Supreme Court at an early stage, and it will continue to be litigated before the trial court.

When the dust settled, the status quo remained in place. It was still the case that the Supreme Court has never struck down a voting district as a partisan gerrymander, in which the political party in power draws maps to favor its candidates. But the court did not close the door on that possibility.

In the Wisconsin case, Gill v. Whitford, No. 16-1161, a three-judge U.S. District Court had struck down the legislative map for the state Assembly, which had been drawn after Republicans gained control of the state’s government in 2010. The district court’s decision was the first from a federal court in more than 30 years to reject a voting map as an unconstitutional partisan gerrymander.

The Wisconsin map helped Republicans convert very close statewide vote totals into lopsided legislative majorities. In 2012, Republicans won 48.6 percent of the statewide vote for Assembly candidates but captured 60 of the Assembly’s 99 seats. In 2014, 52 percent of the vote yielded 63 seats.

Roberts devoted much of his opinion to explaining why the challengers’ legal theory allowed only district-by-district, as opposed to statewide, challenges.