I noted on Friday the Supreme Court’s order to hear two Texas redistricting appeals raising claims under the Voting Rights Act and the Constitution (including racially discriminatory intent and racial gerrymandering claims). I also noted that the Court did not act on the Texas Democratic Party’s petition, which raised a partisan gerrymandering claim. I wrote that “that claim will almost certainly be held until after the Court decides the Maryland and Wisconsin partisan gerrymandering cases and then likely sent back to the lower court in light of those decisions.”
Well that prediction turned out to be dead wrong, as the Supreme Court today without noted dissent dismissed the Democrats’ partisan gerrymandering case for want of jurisdiction. (It also dismissed another appeal in the case that Texas deemed so insubstantial it waived its right to file a response.)
What explains the divergent results? One possibility is that the Court agreed with Texas’s arguments that the TDP’s arguments were not properly presented, as the rulings came in interlocutory orders (that is, orders in the middle of the case, and not at final judgment). That, however, is also true about Texas’s petitions. The plaintiffs in that case argued Texas’s appeals were premature, given that Texas did not wait until the lower court issued new maps and a final judgment in the case. (Four of the Court’s liberal Justices dissented, presumably in part on these grounds, when the Court issued a stay in the case to last through the appeal.)
In any event, should the Supreme Court decide to rein in partisan gerrymandering in the Wisconsin or the Maryland cases, plaintiffs likely could go back to the lower court and see if they can get some relief, given that this case is not on final judgment, once the Supreme Court is done with them.
Your post suggests these are inconsistent actions. Maybe SCOTUS accepted Texas's argument that it may hear appeals from interlocutory injunctions if filed w/i 30 days of the injunctions? I have no view of the merits of that position but that seems consistent w/ Justices' actions.
— Sasha Samberg-Champion (@ssamcham) January 16, 2018