Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. He is the co-editor of “Election Law Stories” and is currently writing a new book on positive voting rights expansions. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas.
What could have been a bang ended in a whimper.
Most observers expected the Supreme Court’s major partisan gerrymandering cases this year to finally provide guidance on how to stop the worst abuses in drawing legislative lines.
The Court heard two cases, one from Wisconsin and the other from Maryland, that represented egregious gerrymanders, or the practice of politicians drawing oddly-shaped district lines to keep themselves in power. It was the perfect storm, showing both the extreme nature of gerrymandering and how both parties do it.
The Wisconsin case involved an outrageous Republican gerrymander, where under the map Republicans in 2012 were able to win 60 of the 99 seats even though their candidates garnered only 48.6% of the statewide vote, and in 2014 they won 63 of the 99 seats with 52% of the vote. The Maryland case was about a Democratic gerrymander, where the Democratic legislature redrew one district from performing majority-Republican to majority-Democrat to sustain its dominance.
Yet the Supreme Court took a supreme punt in both cases, refusing to decide the merits of either one.
In Wisconsin, the plaintiffs had brought a statewide claim, challenging the entire map as a whole, but the Court said that plaintiffs can only bring a challenge to a specific district in which they live. In legalese, the plaintiffs lacked “standing” because they could not show that the map harmed them individually. For instance, the lead plaintiff, a Democrat, lived in a district including Madison that would perform well for Democrats even under a less-gerrymandered map. The Court sent the case back to the lower court for the plaintiffs to try again under a district-specific theory of harm.
In Maryland, the plaintiffs challenged only a specific district – so they had standing – but the Court rejected their request for a temporary ruling (a “preliminary injunction”) that would require redrawing the map before the 2018 midterm elections. The Court held that the plaintiffs were not diligent in bringing their request and that the public interest favored keeping the map in place for now. The decision is very fact-specific for the Maryland case.
Unfortunately, neither decision provides any guidance on when a legislature goes too far in drawing a map for partisan purposes. Both cases leave the major fight for another day.
But for those who oppose partisan gerrymandering, there are three reasons to celebrate – if only partially – the Court’s decisions.
First, the rulings avoided a much worse result, one that many advocates feared: that federal courts cannot adjudicate partisan gerrymandering claims at all. That’s what four conservative justices had said the last time the issue reached the Court, in 2004 and again in 2006. Those Justices argued that there are no proper legal standards to determine when partisan gerrymandering has gone too far.
Had a majority of the Justices agreed in this year’s cases, that would have closed the federal courthouse door for good, placing no judicial limits on politicians drawing lines for their own benefit. Now, at least, partisan gerrymandering challenges can live on for another day.
The issue will surely reach the Court again in the coming years. Indeed, Justice Elena Kagan’s concurring opinion in the Wisconsin case, joined by three other members of the Court, gave plaintiffs specific guidance on how to craft their claims to comply with the Court’s new standard.
Second, the decisions do nothing to the power of state courts to stop partisan gerrymandering under state constitutions. Virtually all state constitutions provide stronger protection for voting rights than the US Constitution. Earlier this year the Pennsylvania Supreme Court struck down that state’s egregious gerrymander under the state constitutional mandate that all elections in the state must be “free and equal.” The court ultimately approved a new, fairer map, which the state used in its primaries this year. The court’s analysis provides a model for other state courts to use their state constitutions to better protect voters.
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Third, the voters themselves can still take legislative line-drawing away from entrenched politicians. That’s what is happening in Michigan, where an all-volunteer grassroots organization, Voters Not Politicians, gathered over 425,000 signatures from all 83 counties for an initiative that will appear on the ballot in November 2018 to amend the Michigan Constitution and create an independent redistricting commission for the state. Several municipalities have also created independent redistricting commissions to draw local lines, removing politicians from the process. These movements show how democracy still depends on the people.
In the end, it would have been better for the Supreme Court to provide guidance and a meaningful standard to limit partisan gerrymandering. But the decisions present the next-best alternative: the avoidance of a harsh ruling that would close off all partisan gerrymandering claims in the future and a little bit of direction on how to bring a successful lawsuit. Perhaps most importantly, the Court’s decision signals the continuing importance of other ways to fix the problem, through state courts, state constitutions, and the people themselves.