Partisan Gerrymandering Stands, for Now

Two decisions from the Supreme Court indicate that arguments against politically biased legislative maps still haven’t figured out how to get the attention of the justices.

Jacquelyn Martin / AP

What anti-gerrymandering activists across the country wanted was a landmark ruling from the Supreme Court, determining once and for all that political maps could be held unconstitutional for partisan bias, and dictating how. What those activists got, however, was a punt.

“The case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries,” wrote Chief Justice John Roberts in the majority opinion.

The decision in Gill v. Whitford, one of the most hyped Supreme Court cases on the issue of gerrymandering in the past 50 years, means rather than weigh in on the merits of the case, the nation’s highest court is sending it back down to a lower court, where the battle over the constitutionality of partisan gerrymandering will continue.

Federal courts have been active in gerrymandering recently, with the Supreme Court notably striking down GOP-drawn gerrymanders in two North Carolina congressional districts and in 28 of its state General Assembly districts in 2017, along with federal courts dealing several blows to gerrymanders over the past five years. Almost all of that judicial vigilance has come against racial gerrymandering. Via universally applicable tests and precedent set by enforcement of the Voting Rights Act, courts have had a relatively easy time spotting racial gerrymanders. And it’s served them well, given what seems to be an onslaught of racially imbalanced maps passed by state legislatures during the last round of redistricting in 2011.

But Gill v. Whitford’s rise to the top of the Supreme Court docket was all the more remarkable because the plaintiffs’ argument—that Wisconsin Republicans drew state Assembly maps that diluted votes based on a partisan, not racial, bias—is one for which federal courts are considerably less prepared. Supreme Court precedent holds that maps drawn to maximize partisan advantage, pack members of one party into certain districts, or dilute them across others, can be unconstitutional. But that Court has also found that partisan advantage in redistricting is acceptable, and hasn’t agreed on how to measure that advantage or on when it might go beyond the pale. Indeed, there are still substantive arguments on whether the Court can even make such a decision. All of these factors have made serious partisan gerrymandering challenges rare.

As the tools for redistricting have become increasingly sophisticated and capable of producing partisan advantages, however, so have the analytic tools for identifying gerrymanders. Those tools were key for the plaintiffs in the Gill v. Whitford case. In their arguments, new ways of identifying gerrymanders gave them a way to spot partisan gerrymanders, and identify tipping points where those gerrymanders constituted constitutional infringement. There were supercomputer simulations. There were different measures of just how many seats devious gerrymandering schemes purloined from opposing parties. Chief among those was the “efficiency gap,” a metric that allows observers to calculate “wasted votes,” those that go to losing candidates or those that would’ve won anyways. Those tests—which found that the Wisconsin GOP had built enough advantage to continue to hold a majority of seats even if they don’t get 50 percent of the votes—were enough for a federal district court to strike the maps down.

Upon appeal, those tests were not enough for the Supreme Court to uphold that decision. Specifically, the justices unanimously agreed that the plaintiffs’ sophisticated tests of partisan gerrymandering pick up damage done to opposing parties, but didn’t quite show how Wisconsin’s politically biased map infringes upon individual constitutional rights, and how it burdens individual voters. Since gerrymandering rulings under the Voting Rights Act derive from the Equal Protection clause, tests that prove a violation of an individual’s civil rights are critical to making the rulings stick.

While voting-rights groups hoping for a firm precedent-setting decision before the next round of map-drawing in 2021 expressed disappointment with the Court’s decision, it clearly doesn’t mean the end of the line for partisan gerrymandering arguments in federal courts. For one, plaintiffs could reconfigure their arguments to again meet the district court’s—and presumably, the Supreme Court’s—standard.  Also, on the same day, the Supreme Court ruled in the Benisek v. Lamone case, a partisan gerrymandering case in Maryland in which Republican plaintiffs filed suit against Democratic mapmakers, whom the GOP argues retaliated against Republican voters in the 6th district by diluting their votes with the 2011 congressional map. The Supreme Court’s ruling essentially allows that case to go to trial in the lower court. Additionally, the high court is now primed to take on a consolidated challenge to partisan-aligned maps in North Carolina that were created as a direct response to its earlier decision on racial gerrymandering in the state.

That all means that there are still three major potential precedent-setting partisan gerrymandering cases still percolating through federal courts. In this saga, the Supreme Court seems intent on biding its time, and slowly feeling out the changes its decisions might make in an already rapidly changing landscape of voting rights and mapmaking. With redistricting emerging as a hot-button issue—and with voters in multiple states pushing for ballot measures to change the way their states do it—even the Court’s punting might have major downstream effects if it’s the last word by 2020. But, by all appearances, it won’t be.