Supreme Court Could Agree to Hear WI Partisan Gerrymandering, Voting Rights Cases as Early as Monday

John Elwood for SCOTUSBlog’s “Relist Watch:”

his week we have five new relists, taxing even my prodigious ability to string transitions between questions presented. For people who have been watching the recent North Carolina election cases like Harris v. Cooper, 16-166, our first new relist is like déjà vu all over again. In Gill v. Whitford, 16-1161, the state of Wisconsin seeks review of the judgment of a three-judge district court, which by a divided vote (and in a total of 159 pages of opinions) invalidated the state legislative district map on the grounds that it represented unlawful partisan – yes, partisan, not racial – gerrymandering. In light of all the language in Vieth v. Jubelirer about the lack of judicially manageable standards for partisan-gerrymander claims, successful partisan-gerrymandering claims have been something of a unicorn, so this case undoubtedly has the court’s full attention. The case is part of the court’s tiny appellate (not certiorari) docket, which means they have to do something with it. Summary affirmance seems unlikely; summary reversal would be a heavy lift when dealing with a 119-page majority opinion. So perhaps the smart bet would be that the court will note probable jurisdiction, set the case for argument, and brace itself for the sea of green (briefs) that will be washing its way over the summer.

Northeast Ohio Coalition for the Homeless v. Husted, 16-1068, represents something of a classic candidate for cert: a clear split that even the respondent acknowledges (though disparaging it as “stale” and “shallow”) on a discrete legal issue: “Whether private parties can sue to enforce 52 U.S.C. § 10101.” But what is “10101”? I mean, other than the base-2 rendering of the age at which drinking Jäger Bombs stops being illegal and becomes merely a bad idea. Turns out Section 10101 is a provision of the Voting Rights Act that provides that no one acting under color of law may “deny the right of any individual to vote in any election because of an error or omission” on a registration, application or ballot if the error or omission “is not material” in determining whether the individual is qualified to vote. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in this case.] Also, they invented Jäger Bombs.

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