By Lisa Soronen
In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances.
But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line. In Gill v. Whitford and Benisek v. Lamone the Supreme Court again declined to adopt a standard for what constitutes an unconstitutional partisan gerrymander.
In Gill, the court concluded that the gerrymandering challengers failed to demonstrate they had standing to bring their lawsuit. In Benisek the Court allowed Maryland’s redistricting plan to go into effect because, among other reasons, the challengers were too delayed in bringing their lawsuit.
Five challengers argued the Wisconsin legislature “packed” and “cracked” Wisconsin Democrats into legislative districts to give Republicans a statewide advantage. In 2012, Republicans won 60 out of 99 Assembly seats with 48.6 percent of the statewide vote. In 2014, Republicans won 63 Assembly seats with 52 percent of the vote.
The “efficiency gap” compares each party’s respective “wasted” votes across all legislative districts. “Wasted” votes are those cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win.
The challengers claimed that the “large and unnecessary efficiency gap” in favor of Republicans violated the First Amendment right of association of Wisconsin Democratic voters and their Fourteenth Amendment right to equal protection.
To have standing to bring a lawsuit, one must have an “injury in fact”—an “invasion of a legally protected interest” that is “concrete and particularized,” which “affect[s] the plaintiff in a personal and individual way.”
In an opinion written by Chief Justice John Roberts, the court concluded that the challengers would have to live in a “packed” or “cracked” district to have standing in this case. The named challenger in this case, William Whitford, testified he didn’t live in such a district.
Four other challengers claimed they lived in such districts but failed to prove they did. According to the Court, these challengers could not rely on a theory of statewide injury—the efficiency gap—to prove standing.
The problem with the efficiency gap, according to the court, is that it measures harm to political parties but not individuals. “[T]his court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
Interestingly, the court allowed the challengers living in districts allegedly “packed” or “cracked” another opportunity (before a lower court) “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.”
Going forward, many will speculate (despite Roberts' admonishments not to do so) about Justice Elise Kagan’s concurring opinion which offers “other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.”
In Benisek, in May 2017, Republicans in Maryland’s Sixth Congressional District asked a federal district court for a preliminary injunction, arguing the 2011 map drawn by the Democrat-controlled Maryland General Assembly was unconstitutionally gerrymandered to retaliate against them for their political views.
The district court denied the motion for a preliminary injunction. The Supreme Court agreed for three reasons in a per curiam (unauthored) decision. First, the challengers had not shown “reasonable diligence” in seeking a preliminary injunction by waiting for six years and three general elections before seeking it.
Second, by the time the district court was able to rule on the motion the time needed to create a new map “had already come and gone.” Finally, the district court did not abuse its discretion by waiting until the Supreme Court decided Gill v. Whitford due to the “legal uncertainty” surrounding partisan gerrymandering.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial matters.