A partisan gerrymandering claim challenging Wisconsin’s redistricting of its general assembly has survived a motion to dismiss before a three-judge federal court. This is a bigger deal than might first appear.
The state of play in partisan gerrymandering claims is a crazy one: thanks to the position of Justice Kennedy in the Supreme Court (in the Vieth case and others), partisan gerrymandering claims are “justiciable” (meaning the courthouse door is open to raising the claims), but every usual standard that plaintiffs have raised to try to prove a partisan gerrymander has been rejected by Justice Kennedy. Kennedy’s message in essence is: keep trying to come up with a judicially manageable standard that separates permissible from impermissible consideration of party in redistricting. So if you are a plaintiff bringing such suits, you have to raise something different from what’s already been raised as well as something which could well attract the votes of five Justices, including Justice Kennedy.
Plaintiffs in the Wisconsin case have raised a kind of partisan symmetry argument, one which J. Kennedy did not completely close the door to in earlier cases. In particular, plaintiffs in this case are relying on the “efficiency gap” measurement set forth in Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831 (2015).
In today’s opinion, a three-judge court unanimously held that there was enough alleged as to standing and the merits on the efficiency gap being a justiciable, manageable standard to survive a motion to dismiss. This means that the case would then go to summary judgment stage, or potentially even a trial. The judges were quite clear that as evidence comes into the case, they have not committed to ruling for the plaintiffs.
So there is a long road ahead in this case for plaintiffs. But not getting kicked out at the first stop is itself a big deal.
This is one to watch.