By Wendy Underhill and Matt Catron
June 30 was, of course, the end of the Supreme Court’s term for this year, with a new term starting in October.
During June, the court touched on five redistricting cases in some way or other. But that’s not all. Two cases burbling along in lower courts made June headlines, too.
All this activity in the year ending in 8? It's a lot, given that these cases all address district plans created six or more years ago. Litigation is not likely to stop, either, given that the next cycle of redistricting is right around the corner, and the next couple of elections will decide who will have responsibility for drawing the next set of lines.
You can learn much more about it by joining a free webinar offered by NCSL and the State and Local Legal Center on July 18. In the meantime, and given all the bustle and hustle, I thought it might be time for a where-are-we now list of redistricting cases (or at least those that made the news in June). So, here goes, with links to NCSL blog posts or Scotusblog posts.
Gill v. Whitford: Some hoped that this Wisconsin case would be the one where the Supreme Court found a standard for unconstitutional partisanship. It was not to be. Instead of ruling on the case's merits, the court indicated that the plaintiffs, who argued that the statewide effect of the maps enacted by the GOP-controlled legislature in 2012 packed or cracked districts in such a way as to dilute Democrats' electoral power, did not have standing because they weren't able to prove they were from affected districts, and that statewide results can't be used to prove specific injury. The court gave special treatment to the standing issue. Instead of dismissing the case outright, the court remanded the case, giving challengers another opportunity to go before a lower court with their argument and prove the plaintiffs did in fact have standing. For now, and for the 2018 election, existing districts still stand.
Benisek v. Lamone: In this Maryland case, Republicans in one congressional district asked a federal court for a preliminary injunction against holding the 2018 election with the existing district boundaries, saying the district was unconstitutionally gerrymandered against Republicans for their political views. The court upheld the lower court's denial of the preliminary injunction. Part of the reasoning: the plaintiffs didn't speak up early enough; three general elections had already taken place with those maps. The case is currently pending before the district court where both parties have filed cross-motions for summary judgment. However, a new trial has yet to be scheduled. Again, for now existing districts still hold.
Rucho v. Common Cause: In this North Carolina case on partisan mapmaking, the Supreme Court sent the case back to the lower court, which had sided with the challengers, for review in light of the court's ruling in Gill v. Whitford. Unlike in Gill v. Whitford, the North Carolina case has plaintiffs from each of the state's congressional districts. For now, the existing districts still stand, although the case may come back up again.
Abbott v. Perez: The Supreme Court upheld several of Texas’ congressional and state legislative districts, over findings by the lower court of intentional discrimination and vote dilution of black and Latino voters. A finding of racial gerrymandering was upheld for a single legislative district. The existing maps adopted in 2013 by the Legislature (with tweaks to one legislative district) will likely be used for the 2018 and 2020 elections, unless something unforeseen happens, which is often the case in Texas.
North Carolina v. Covington: On June 28, the Supreme Court summarily disposed of this case where a lower court had found racial gerrymandering in the 2011 North Carolina legislative plan. The Supreme Court upheld the lower court's redrawing of several districts that were found to be racial gerrymanders, and at the same time did not sustain the lower court's invalidation of other districts based on unrelated claims. In the June 28 order, the court also summarily affirmed a decision involving a dismissal of a partisan gerrymandering challenge against this same remedial plan in Harris v. Cooper.
Bethune-Hill v. Virginia State Board of Elections: This case has not yet gone to the Supreme Court, but the Virginia Legislature is likely to appeal a lower court's decision, which said that a number of legislative districts were racial gerrymanders. In the meantime, the lower court's ruling calls for new maps to be drawn by this fall, to be used in Virginia's 2019 legislative elections.
NAACP v. Merrill: For a change of pace, a "prison gerrymandering" complaint was filed by the NAACP against Connecticut. The claim is that standard operating procedures for allocation of prison populations for redistricting purposes drain electoral power from urban areas. Prisoners in 46 states are allocated to the prison district, not their home district. This case has a long way to go and many opportunities for derailment before the Supreme Court would have a chance to review it.
Wendy Underhill is NCSL’s program director for elections and redistricting. Matt Catron is a law student at William and Mary and legal intern at NCSL.