UPDATE ON STAY: Breaking: Supreme Court to Hear WI Gerrymandering Case, Gill v. Whitford, Next Term Analysis

[UPDATE: About an hour after the Court issued its order agreeing to hear this case, it issued a second order, on a 5-4 vote, granting a stay of the lower court order in this case. The four liberal Justices dissented. As I explained last night, 

Once the Court grants a hearing, the question will be whether the Court stays a lower court order requiring the WI legislature to redistrict by November so that there will be new districts ready for 2018. WI has asked for that lower court order to be put on hold until resolution of the case at the Supreme Court, and given the likely timing of things, granting the stay would almost certainly mean the old districts would have to be used for the 2018 elections no matter what the Supreme Court does, as there would be no chance to create new districts.

The granting or denial of a stay requires the Court to weigh many factors, but one of the biggest factors is likelihood of success on the merits. In other words, granting of a stay is a good (but not necessarily great) indication that the Supreme Court would be likely to reverse. That means the stay is a good indication the partisan gerrymander finding of the lower court would be reversed.

So this stay order raises a big question mark for those who think Court will use the case to rein in partisan gerrymandering.

Why did this order not come with the Court’s regular orders agreeing to hear the case? Perhaps not all the Justices had voted on the stay by the time the Court had finalized today’s order list.]

As expected, the Supreme Court has agreed to hear Gill v. Whitford next term, with a decision expected by a year from June. (Technically the Court “postponed jurisdiction” pending a hearing on the merits, but this has to do with the nature of this coming up on appeal, rather than a cert. petition, and the open question about whether partisan gerrymandering claims are justiciable.]

This case represents the last best chance for a Court to rein in excesses of partisan gerrymandering, while Justice Kennedy, who has been the swing vote on this issue, remains on the Court.  (I’ll post more about the merits on this question soon.)

Nothing is certain, but I expect that an order one way or the other on the stay will come by the end of the term.

Also notable is that the Court did not issue any order on the North Carolina partisan gerrymandering case, a follow on to what happened in NC after the lower court found the old lines were a racial gerrymander.  That case likely will be held for resolution in light of Gill, rather than set for full argument, but you never know.

Finally, the Court denied cert. in the Northeast Ohio Coalition for the Homeless v. Husted case, about private party standing to sue for violation of a certain provision of the Voting Rights Act barring officials from denying voter registration and voting to individuals because of minor errors on their voting form.

[This post has been updated.]

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