What to Watch for in WI Supreme Court Partisan Gerrymandering Order: Order on a Stay

As early as Monday morning, the Court may announce whether it will hear the appeal in Gill v. Whitford, concerning the constitutional challenge to Wisconsin legislative districting as a partisan gerrymander.

I’ll be writing more if/when the Court grants a hearing in the case (and I expect the grant of the hearing almost certainly, though not necessarily Monday).

But once the Court grants a hearing, the question will be whether the Court stays a lower court order requiring the WI legislature to redistrict by November so that there will be new districts ready for 2018. WI has asked for that lower court order to be put on hold until resolution of the case at the Supreme Court, and given the likely timing of things, granting the stay would almost certainly mean the old districts would have to be used for the 2018 elections no matter what the Supreme Court does, as there would be no chance to create new districts.

The granting or denial of a stay requires the Court to weigh many factors, but one of the biggest factors is likelihood of success on the merits. In other words, granting of a stay is a good (but not necessarily great) indication that the Supreme Court would be likely to reverse. That means the stay is a good indication the partisan gerrymander finding of the lower court would be reversed. And a decision to deny the stay (and require WI to draw new districts in the interim) would be a good indication that the lower court finding of a partisan gerrymander will stand (even if the Court does not agree with the particular analysis of the lower Court).

As with many of these things, I expect this comes down to what Justice Kennedy wants to do (assuming he is not retiring at the end of this term)

More tomorrow, if there is an order.

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