The Supreme Court’s rejection of Democrats’ challenge to districts they say were rigged on a partisan basis by Wisconsin Republicans came on a 9-0 vote, but dueling opinions revealed internal conflicts and portend difficulty ahead for any future gerrymandering claim.
Chief Justice John Roberts wrote Monday that the Democratic challengers lacked legal “standing” because they had not demonstrated individual harm within their legislative districts.
The court, therefore, sidestepped the salient question of whether federal judges may ever take up constitutional claims to the partisan gerrymanders proliferating across a polarized America, or determine how far politicians may or may not go in their quest to secure legislative majorities.
That was not the end of the matter for Justice Elena Kagan. Writing a concurring opinion for the four liberal justices, Kagan warned of the “evils of gerrymandering” to democracy and tried to offer a blueprint for future plaintiffs to prove injury on various constitutional grounds – including a First Amendment right of free association.
But Roberts retorted that her opinion, essentially, does not matter. The court’s ruling, he said, was set forth in his opinion “and none other.” And while the court did not close the door on eventual review of partisan gerrymanders, it put out no welcome mat. Roberts’s opinion showed none of Kagan’s concern for the way gerrymandering could rig elections, as the country heads to the 2020 Census and redistricting cycle.
The chief justice’s concerns focused on when – and perhaps subtly, whether – judges should ever be involved in the map-drawing process. At oral arguments last fall, Roberts said that if judges began reviewing politically lopsided maps, siding with either Democrats or Republicans, their actions would be viewed as simply favoring one party over another.
“This court is not responsible for vindicating generalized partisan preferences,” Roberts wrote Monday. “The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
Justice Anthony Kennedy, a conservative centrist who has previously suggested the court could at some point rule on a partisan gerrymander, possibly based on a First Amendment right of free association, did not write a separate statement in the Monday case.
For her part, Kagan, joined by liberal Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, said that if the court does not soon intervene, the problem would only get worse. Redistricting software enables whichever party controls a statehouse to capture every bit of partisan advantage, she wrote, helping entrench the party in power, irrespective of voters’ true preferences.
The method at issue in the Wisconsin case was “packing and cracking,” by which voters of one party are consolidated (“packed”) into districts where they can prevail by a great majority but effectively waste votes, and are divided (“cracked”) among multiple districts so they fail to gain a majority in any of those districts.
Roberts noted that the Wisconsin Democrats claimed their votes had been unconstitutionally diluted. But he said they did not make the case for individual harm within specific districts. Rather, much of the plaintiffs’ evidence addressed the statewide partisan advantage arising from the packing and cracking. That, Roberts asserted, made the case “about group political interests, not individual legal rights.”
As he sent the case back to a lower court in Wisconsin, Roberts said the plaintiffs must “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.
“We express no view on the merits of the plaintiffs’ case,” he added. “We caution, however, that standing is not dispensed in gross: A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”
Two of Roberts’s fellow conservatives, Justices Clarence Thomas and Neil Gorsuch, said they did not believe the challengers should have another chance to prove standing.
Kagan, alternatively, offered suggestions on how challengers could get their claim heard, including if it were a broad-based assertion of a First Amendment violation based on free association.
Referring to the claim directly before the court, she said, to demonstrate individual harm “a Democratic plaintiff living in a 75% Democratic district could prove she was packed by presenting a different map, drawn without a focus on a partisan advantage, that would place her in a 60% Democratic district. Or conversely, a Democratic plaintiff residing in a 35% Democratic district could prove she was cracked by offering an alternative, neutrally drawn map putting her in a 50-50 district.
“The precise numbers are of no import,” Kagan wrote. “The point is that the plaintiff can show, through drawing alternative district lines, that partisan-based packing or cracking diluted her vote.”
Kagan also addressed a legal route that Kennedy has previously suggested based on the First Amendment right of association held by political parties and their members.
“Consider an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left untouched (neither packed nor cracked),” Kagan posited. “His individual vote carries no less weight than it did before. But if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party.”
Contesting Roberts’ narrower conception, she asserted, “When the harm alleged is not district specific, the proof needed for standing should not be district specific either. … The complaint … is that the gerrymander has burdened the ability of like-minded people across the state to affiliate in a political party and carry out that organization activities and objects.”