For the second time during this Supreme Court term, an awesome, nation-defining Supreme Court showdown ended with a flaccid, overcooked nothingburger.
On Monday, the Court handed down its decisions in Gill v. Whitford and Benisek v. Lamone — although labeling either opinion a “decision” may be too strong of a term. Both cases are punts, which delay a showdown over partisan gerrymandering for at least another year.
Gill involves one of the most aggressive gerrymanders in the country, a Republican gerrymander that renders the Wisconsin state assembly virtually immune from democracy. In 2012, for example, Republicans won only 48.6 percent of the two-party statewide vote — meaning that they received significantly less votes than Democrats — yet they won 60 of the 99 seats in the Wisconsin Assembly. Two years later, Republicans won 52 percent of the two-party statewide vote, yet they won 63 of the 99 seats.
Benisek, meanwhile, involves a Democratic gerrymander in the state of Maryland. In that state, Democrats rigged their congressional maps to add an additional Democrat to the state’s U.S. House delegation. Before the gerrymander, the state’s maps were likely to send 6 Democrats and 2 Republicans to Congress. Now, the state typically sends 7 Democrats and one Republican.
The two cases presented a wealth of fascinating legal questions. Does a workable test exist that courts can use to identify partisan gerrymanders? Can a mathematical formula be devised that will sort gerrymandered maps from others, or is this inquiry necessarily subjective? Can litigants challenge a state’s entire map at once, or must they go district by district?
These questions, however, remain largely unanswered.
The Court’s unanimous, unsigned opinion in Benisek is particularly unsatisfying. Much of that opinion rests on the Court’s belief that the Benisek plaintiffs waited too long to pursue their claim — at least if they wanted a court decision enjoining the Maryland gerrymander before the district court had a chance to conduct a full trial. But outside of serving to warn anti-gerrymandering plaintiffs that they must take care to file their cases sooner, the decision resolves none of the bigger questions that were before the Court.
And while Chief Justice John Roberts’ opinion for the Court in Gill has a bit more meat on its bones, it still amounts to a meager meal. The plaintiffs in this case are individual voters who sought to challenge a statewide gerrymander. Gill holds that, when individual voters bring such a claim, “the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district.” Thus, the plaintiffs must show that they were somehow injured by their own district’s boundaries, and their remedy may be geographically quite limited.
Were this the Court’s final word on how partisan gerrymanders may proceed, it would be a disaster for anti-gerrymandering plaintiffs. District-by-district suits are likely to miss the forest for the trees, as it is often difficult to spot a gerrymandered map unless you know what it does to the partisan balance of the state as a whole. Worse, a district-by-district standard could potentially entrench existing gerrymanders, since a law dismantling a gerrymander will necessarily switch individual districts from one party’s control to the other.
Yet, as Justice Elena Kagan notes in a concurring opinion, there are ways out of this trap. Among other things, Kagan notes that the Wisconsin Democratic Party may itself have standing to challenge a statewide map. The practical effect of Gill, in other words, may simply be that gerrymandering suits need to be brought by parties and not by individuals.
While the decisions in these cases do little to resolve partisan gerrymandering, gerrymandering plaintiffs still face the prospect that as the liberal justices draw closer to retirement, their shot at ending gerrymandering in the Supreme Court begins to diminish.
Justice Ruth Bader Ginsburg is 85. Justice Anthony Kennedy turns 82 next month. Justice Stephen Breyer is 79. If any of them leave the Court and give Donald Trump the opportunity to appoint a hardliner in the vein of Neil Gorsuch, it is likely that there will be five votes to lock partisan gerrymandering suits out of court altogether.