“In Michigan & Ohio, Justice Delayed Could Mean Justice Denied; Is There A Better Way?”

Mike Parsons:

In the past two weeks, federal district courts have struck down partisan gerrymanders in both Michigan and Ohio.  As a matter of legal doctrine, these decisions are important.  As Nick Stephanopoulos states, they reveal an emerging consensus among lower courts on the standards for partisan gerrymandering and they show that judges across the political spectrum can faithfully apply these standards even in an era of growing judicial polarization.  In short, they belie the arguments that judicially manageable standards do not exist or cannot be applied in a relatively apolitical manner.  (The Ohio court even suggests that partisan-gerrymandering claims cannot be rendered categorically nonjusticiable consistent with Article III.)


As a practical matter, however, the decisions might have little impact.  Both the Michigan and Ohio decisions were quickly appealed, and stays have been requested in both cases.  As Rick Hasen suggests, the Supreme Court seems likely to grant stays in both pending its ruling in the North Carolina and Maryland cases.  If the remedial process is dragged out long enough, the plaintiffs might miss their chance at relief before the 2020 election even if the Supreme Court affirms in the North Carolina and/or Maryland cases.  Plaintiffs in a racial gerrymandering case from North Carolina faced a similar fate a few years ago when the Supreme Court held a case for months without action. 


Nowadays, Plaintiffs in redistricting cases face an obstacle course of procedural rules (the Lipscomb principle, the Growe principle, the Abrams/Perry principle, the Upham principle, and the Purcell principle) that make rolling appeals/stays an effective strategy for legislators trying to parlay their ill-gotten gains into the next election cycle.  The Supreme Court made this obstacle course even more difficult with its decisions last term in Abbott v. Perez and North Carolina v. Covington.


Is there anything district courts can do to help prevent such legislative gamesmanship when they find redistricting plans unconstitutional?  Perhaps.  In a forthcoming essay in the Journal of Law in Society, I offer a few strategic case-management suggestions for district courts looking to provide timelier relief.  One that might’ve helped in Michigan and Ohio: provide declaratory relief alone when issuing a merits decision, and defer imposing any injunctive relief until a backup remedial plan has been generated

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