Partisan Gerrymandering Case Status

The Court’s decision this morning in the North Carolina redistricting case addressed allegations of predominant and unjustified racial intent.  The state attempted to defend its actions, in part, by saying that it was just acting for partisan reasons.

The legal status of “just acting for partisan reasons” in the redistricting context is also a hot topic these days.  The last time SCOTUS really took the issue on was 2004, in a fractured opinion that left the state of the law a bit of a mess.  Only 4 of the 9 sitting Justices were then on the Court.  And there are a few relevant cases headed straight back toward them.

Some of the challenges are out of North Carolina.  One case is directly related to the one decided this morning.  (This morning was Cooper v. Harris; the case coming up is Harris v. Cooper.  It’s all based on who won and who lost in the lower court.)  This is the remand from this morning’s case — while SCOTUS was hearing the race case, the legislature drew new lines, saying explicitly that they intended to draw the new lines “to gain partisan advantage.”  The lower court approved the new legislative remedy, despite plaintiffs’ protest that it amounted to an unlawful partisan gerrymander.  There’s a dispute among the parties about the proper scope of the court’s consideration (and in the meantime, there have been two new cases challenging the new map as a partisan gerrymander, moving at a slower pace).  The lower court’s approved remedy is now up on appeal before SCOTUS, and a decision on whether to hear the case in full is likely coming in the next few weeks, perhaps as early as next week.

The other leading case is out of Wisconsin.  It’s a challenge to the state legislative map as an unlawful partisan gerrymander.  Here, the lower court struck down the state map, and the state is now appealing to SCOTUS.  A decision on whether to hear the case in full is also likely coming in the next few weeks — I think there’s a broadly shared expectation based on the procedural posture and the result below that SCOTUS will hear this case in full.

A decision to consider either case in full would mean briefing over late summer and early fall, an argument date likely in the fall, and a decision likely in the spring or early summer of 2018.   Of course, that timing is entirely up to the Court, and the timing is really just a guess: the cases could easily move faster or slower.

(There are also other partisan gerrymandering cases — including a case out of Maryland — that are a little farther behind in the queue.)

For those looking forward, there’s some intriguing dicta in this morning’s decision: Justice Alito, with the Chief Justice and Justice Kennedy joining, seems to emphasize that some partisan gerrymandering is OK (p. 5 of his separate opinion).  That wasn’t actually the issue in this morning’s decision, and it’s not clear how much those few sentences will impact any individual Justice’s take in a case squarely about partisan gerrymandering (much less an opinion about how much partisanship is too much partisanship).  But tea-leaf-readers gonna tea-leaf-read.

(Also FWIW: there was a magnificent symposium at William & Mary in February concerning redistricting, including discussion of the racial and partisan claims in precisely these cases at and heading to SCOTUS.  If your primary complaint is that the morning’s ELB posts have been too short, keep an eye out for the symposium issue of the William & Mary Law Review).

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