What Happened to Whitford?

In its decision last year in Whitford, the Court provided all kinds of clues about what a successful partisan gerrymandering claim would look like. It would be district-specific, not plan-wide. That way it would be congruent with the standing inquiry recognized by the Court: whether “the particular composition of the voter’s own district . . . causes his vote—having been packed or cracked—to carry less weight.” Discriminatory intent would also be an element of the claim. Evidence of such intent “may well be pertinent with respect to any ultimate determination whether the plaintiffs may prevail.” And alternative maps would be central to the analysis. They would show whether “another, hypothetical district” could be drawn that “unpacked or uncracked” a given plaintiff, or, conversely, if voters were “‘naturally’ packed due to their geographic concentration.”

Chief Justice Roberts was the author of both Whitford and Rucho. So one might have expected him to address these passages at some length—to explain why the standard the plaintiffs proposed in Rucho was nonjusticiable even though it was exactly what the Court contemplated in Whitford. But one would be wrong. Roberts never explained how a district-specific standing inquiry could be manageable while a district-specific merits analysis is not. Nor did he explain how evidence of discriminatory intent could be “pertinent” in Whitford but irrelevant in Rucho. And nor did he explain how the Court could request alternative maps in Whitford but then dismiss them when they were provided in Rucho. Indeed, Roberts never so much as mentioned the key passages from Whitford. It’s as if they never existed, as if they vanished into the ether at some point over the last year.

We can make a good guess when this doctrinal amnesia began: June 27, 2018, the day Justice Kennedy retired from the Court. (Or, alternatively, October 6, 2018, the day Justice Kavanaugh was sworn in as his replacement.) It appears that, to keep Kennedy’s vote in Whitford, Roberts agreed to include all sorts of suggestions that future partisan gerrymandering claims could be successful if they only included the right arguments and evidence. It also appears that these intimations came with an expiration date: Kennedy’s tenure on the Court. As soon as Kennedy was no longer there, the hints were immediately forgotten. So when the Rucho plaintiffs did everything the Whitford Court asked for, their efforts “echo[ed] into a void,” to borrow one of Roberts’s phrases. The Rucho plaintiffs had relied on the Whitford Court’s word. But that word was no longer good.

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