The State of Play in North Carolina and Wisconsin

I wanted to flag for the blog’s readers some significant developments that took place this week in the North Carolina and Wisconsin partisan gerrymandering cases. In North Carolina, the trial court agreed to stay the remedial process on the condition that the defendants file their jurisdictional statement with the Supreme Court by October 1. With a J.S. filed that soon, it’s highly likely that the Court will hear and decide the case in its upcoming term. So after last term’s anticlimactic cases, this term may well include a decision that does get to the merits of gerrymandering.

In Wisconsin, two complaints were filed today. The Whitford plaintiffs submitted an amended complaint that makes a few focused changes to their original filing: (1) The new document adds a couple dozen more Democratic voters as plaintiffs. (2) It explains why each plaintiff has standing under the standard set by the Supreme Court in Gill v. Whitford. Each plaintiff lives in a district that is cracked or packed, but that did not have to be cracked or packed, as demonstrated by a fair alternative map that beats the enacted plan on every nonpartisan criterion. (3) The amended complaint further asserts a distinct associational claim, alleging that the enacted plan hinders the plaintiffs’ ability to associate with likeminded Democrats.

The other Wisconsin complaint was filed by the Wisconsin Assembly Democratic Campaign Committee (ADCC), which is made up of the Democratic members of the State Assembly. According to Justice Kagan’s concurrence in Gill, a party entity like the ADCC is ideally situated to bring an associational claim against a partisan gerrymander. And indeed, that is the only claim the ADCC raises; it does not allege vote dilution. In its complaint, the ADCC maintains that the enacted plan has inhibited its ability to perform associational functions including candidate recruitment, fundraising, and voter mobilization. The ADCC also seeks to consolidate its suit with Whitford so that the cases may proceed in tandem.

The timetable for the Wisconsin litigation is still unclear. It’s virtually certain, though, that it won’t make it back to the Supreme Court in the coming term. Instead, it’s more likely that Whitford (along with ongoing gerrymandering cases in Michigan and Ohio) will reach the Court in its 2019 term.

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