A Decision on Standing and Its Aftermath

Reading the tea leaves, Rick Pildes and others have speculated that the Court may decide Whitford on standing grounds. I’ve previously explained why this would be a bad idea. But here I want to make two other points about the standing issue. One is that, if the Court holds that the Whitford plaintiffs lack standing, a great deal hinges on why the Court reaches this conclusion. The other is that, if the Court compels partisan gerrymandering litigants to bring district-specific claims, it may actually make their suits more rather than less disruptive.

Start with the first point. There are two possible reasons the Court could give for denying standing to the Whitford plaintiffs. One is that they aren’t properly situated to allege a statewide claim while other parties (like statewide organizations with statewide members and interests) are. This sort of standing ruling would have quite modest consequences. The Whitford litigants would seek leave to amend their complaint in order to add the requisite parties with statewide standing. And litigants in other cases would make sure to include the right parties from the outset.

More broadly, the Court could hold that the Whitford plaintiffs lack standing because no one has standing to bring a statewide claim—not statewide organizations, not voters residing in every district in a plan, not anybody. Notwithstanding its label, this kind of decision wouldn’t actually be about standing. Rather, it would be a sub silentio holding that statewide partisan gerrymandering claims are nonjusticiable. After all, a legal theory that no one can litigate isn’t really a theory at all. This kind of decision would also consign future litigants to challenging districts one by one. (If, that is, they could challenge districts in the first place.) No matter whom the litigants included as plaintiffs, they would be limited to district-specific claims.

This brings me to my second point. Perhaps because Benisek involves only a single district while Whitford implicates an entire district map, there is a tendency to view district-specific claims as more modest, less disruptive—and ultimately better for defendants—than statewide claims. The reality, though, may be quite different. Depending on what legal standard applies to district-specific claims, they may be both easier to win and more radical in their implications than statewide claims.

District-specific claims may be easier to win because litigants could (presumably) prevail in them even when plans as a whole are balanced. Consider my state of Illinois. Its current maps have all exhibited low levels of partisan asymmetry, thus preventing any statewide claims from getting off the ground. But litigants could surely identify many districts that were crafted with the aim of helping Democrats, that disregard traditional criteria, and that crack or pack Republican voters. These seats, all insulated from statewide attack, would be juicy targets for district-specific litigation.

District-specific claims may also be more radical in their implications because they have no obvious stopping point. As long as litigants can keep locating districts that were deliberately drawn to benefit the mapmaking party, they (presumably) can keep getting these districts struck down—even if the end result is to tilt the plan in the litigants’ favor. Take the ninety-nine Wisconsin state house districts at issue in Whitford. Republicans control about ten more of them than they would under a balanced map. Flipping these ten seats is thus the most that litigants could hope for under a statewide theory. But many more than ten districts were intentionally designed to aid Republicans and handicap Democrats. If litigants could invalidate most or all of them based on district-specific claims, they wouldn’t just erase the Republicans’ advantage. Rather, they would replace it with one in a Democratic direction.

Of course, these theoretical gains for litigants might not materialize in practice. District-specific claims would be a royal mess to develop, requiring factual discovery and expert analysis for scores of districts instead of a single plan. Litigants might thus be unable to substantiate many claims that appear strong in the abstract. Nevertheless, if the Court is drawn to district-specific claims because of their seemingly less expansive reach, it should be careful what it wishes for. It may well find that in its effort to cabin partisan gerrymandering litigation, it has done exactly the opposite.

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