Understanding the Supreme Court’s Two Orders in the North Carolina Gerrymandering Cases, and How It Fits into the Bigger Picture

Yesterday (when I was on the road), the Supreme Court issued two orders related to redistricting cases. In the North Carolina partisan gerrymandering case (involving congressional districts), the Supreme Court denied a motion by Common Cause to expedite consideration of the case. Justices Ginsburg and Sotomayor dissented, saying they would have expedited consideration of the case. This comes after the Court stayed the lower court order which would have put North Carolina on the path to new congressional districts in 2018. Now, the case will likely be held for decision in the Maryland and Wisconsin partisan gerrymandering cases, and even if the Court recognizes a right to go after partisan gerrymandering, it will likely be too late to do anything for the 2018 elections.

Later yesterday, the Supreme Court issued a partial stay in a case where a different three judge court had required new district lines be drawn for state legislative elections to deal with problems of racial (not partisan) gerrymandering. The Court put on hold only redistricting for House districts in Wake and Mecklenburg counties. Justices Thomas and Alito would have put any new districts across the state on hold pending further Supreme Court action. Justices Ginsburg and Sotomayor would have let even the Wake and Mecklenburg district lines be redrawn. Michael Li explains that the state legislature redrew the lines in those two counties that were not found to be racial gerrymanders. The plaintiffs contended that this violated a state constitutional prohibition on mid-decade redistricting. The three-judge court agreed and had the special master redraw those lines too. Now the elections in those counties will be held under the lines drawn by the state. The rest will be under the lines drawn by the special master.

What to make of all of this?  A few observations:

1. I don’t agree with Ian Millhiser that we can read into the Sotomayor/Ginsburg dissent in the partisan gerrymandering case that this is a signal that partisan gerrymandering is “doing down.” Ian reasons that “If Ginsburg and Sotomayor know that the Court is about to uphold the Wisconsin gerrymander, it is very unlikely they would want to place another partisan gerrymandering case on the Court’s docket.” Maybe. But maybe it is because they are writing a bitter dissent, and are going to keep voting to hear the issue just like conservatives kept voting to overturn the Austin case in the campaign finance arena (which they eventually succeeded in doing in Citizens United.)  I think the primary lesson to learn from the Court’s refusal to expedite is that the Court continues to believe that voters can wait when it comes to curing redistricting. The Court would rather hold another (election or two) under unconstitutional lines than rush things along. If the Court in the Maryland or Wisconsin case recognizes a right to bring a partisan gerrymandering claim, then the NC case will likely be sent back to the lower court for further proceedings in line with the new opinion(s), and potentially another appeal to SCOTUS on how to apply those opinions. We are far from the end of the line.

2. In the racial gerrymandering case, I had been predicting that the Court would deny a stay, because the racial gerrymandering issue had already been considered by the Court last term, and this was just about a remedy that the Court was already anticipating. This prediction proved to be right—I just had not focused on the wrinkle that the lower court went further in those two counties, allowing remedies for a supposed state law violation (something the Supreme Court has not yet considered). So this is somewhat unsurprising. The fact that Justices Sotomayor and Ginsburg dissented on this point lends credence to my theory that they are willing to vote for things that decrease the amount of gerrymandering.

3. The absence of Justice Gorsuch’s name in the second order is notable. I have been seeing him as a likely ally of Thomas and Alito in these cases (on the Court’s right flank, as compared to Sotomayor and Ginsburg on the left flank). He may well vote with them, but this shows he’s not moving in complete lockstep with Thomas and Alito on these issues. This is something to watch.

4. So what does all this tell us about whether or not the Court will police partisan gerrymandering and when? Not very much.  We will likely know more after the oral argument in the Maryland case on March 28.

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