The Maryland Gerrymandering Case: Four Significant Aspects to the Court Deciding to Hear the Case

1. The significance for the justiciability issue.  Deciding to hear the Maryland case is a significant signal that a majority of the Court is not going to hold partisan gerrymandering claims to be non-justiciable (that is, inappropriate for judicial resolution).  If the Court were moving in the Wisconsin case toward holding partisan gerrymandering to be non-justiciable, it would make little sense for the Court to do anything with the Maryland case except hold it, then send it back to the lower courts to dismiss on the grounds that the entire cause of action was non-justiciable.  Hearing the Maryland case means the Court is quite unlikely to rule in WI that partisan gerrymandering claims should not be addressed by the courts.

In the Court’s last major confrontation with these issues, the 2004 Vieth   case, four Justices would indeed have held partisan gerrymandering non-justiciable (C.J. Rehnquist and J. O’Connor, of those four, are no longer on the Court). Justice Kennedy had kept the cause of action alive, but just barely, based on his hope that effective, judicially manageable standards would emerge.  In Gill, the possibility always existed that, if Justice Kennedy were  not satisfied that plaintiffs had indeed come up with an effective standard 13 years later, he too might conclude the courts should give up the search as well.  But the Maryland grant signals that, whatever else the Court might do in Gill, it is unlikely to conclude partisan gerrymandering is non-justiciable.

2. The significance for the issue of partisan gerrymandering.  The Wisconsin and Maryland cases take completely different approaches, which means the Court will now have a more comprehensive menu of options before it in deciding how to address partisan gerrymandering.  At the time the Court agreed to hear the Wisconsin case, I wrote that it was unfortunate this case was coming to the Court in isolation, as (1) the first case in which a lower federal court had struck down as unconstitutional a legislative redistricting plan and (2) the first case that had made use of the new metric, the Efficiency Gap, as part of its decision.  In the normal world of Supreme Court practice, the Court might have left the lower court decision alone (by denying cert.) and giving the lower courts more of an opportunity to test both this approach and others that were being pursued under different theories in other states.  But the unique nature of the Court’s mandatory appellate jurisdiction meant that it essentially had to agree to hear the Gill case, rather than waiting and then being able to benefit from numerous lower court decisions.

By granting the Maryland case now, the Court has thus put itself back in the better position of having an at least somewhat broader perspective on the theories and approaches being developed in the lower courts.  The approach in the Maryland case is a more conventional one than in Gil because it focuses on the design of a single district; the Maryland case implies that districts would have to be challenged one by one, with plaintiffs having to prove that any specific district was itself a partisan gerrymander; for that reason, the approach in Maryland, if adopted, would make future litigation more burdensome than in Gill, since Gill attacks state-wide plans as a whole, on a state-wide basis, rather than requiring proof about each district one-by-one.  Of course, the approaches in Gill and the Maryland case could turn out to be complementary, rather than alternatives; the Court could decide that a plan is unconstitutional if it violates the plaintiffs’ approach in Gil or that individual districts could be unconstitutional under the plaintiffs’ theory in Maryland.  But in any event, the Court is going to have a much better overall perspective on how to think about legal theories concerning partisan gerrymandering by virtue of having both cases before it.

3.  The significance for the signal the Court’s decision sends.  When the Court was considering only the Gill case in isolation, the case had been built up into the climatic moment for this issue.  That meant that, if the Court ends up rejecting the plaintiffs’ claims in Gill, the decision would have sent a powerful message to many other key actors — lower court judges, lawyers and plaintiffs considering bringing these cases, and those involved in redistricting — that the Court was unlikely ever to find an instance of unconstitutional partisan gerrymandering.

That would have been true even if the Court had qualified its decision in various ways, and even though there are several unique features of the WI litigation that would not apply to other approaches to litigating partisan gerrymandering.  After years of not holding any plan unconstitutional, if the Court reached that same conclusion in Gil, the undoubted take-away would have been these cases are simply not winnable.

But now, with two options before it, the Court’s signal will depend on how it handles both cases (and the two decisions might  be handed down at the same time).  The Court might affirm in Gill, of course. But if it rejects the plaintiffs’ claims there, and yet affirms the plaintiffs’ claims in the Maryland case, the message from the Court will be dramatically different than if it were deciding Gill alone.

4.  The significance for the (perceived) politics of partisan gerrymandering.  Because many more legislatures were under unified Republican than Democratic control in the 2010 round of redistricting, most of the attacks on partisan gerrymandering — both in the courts and in the media — have tended to be attacks on Republican-drawn plans. To the extent the legal challenge to partisan gerrymandering comes to be perceived as a purely partisan matter, that is not good for the legal issue.

Judges realize, of course, that Democrats often gerrymander when they get the chance.  But it makes a difference to have a vivid example and reminder of that fact before the Court at the same time the initial challenge before it was to a Republican plan.  That’s another reason I consider this recent Maryland grant good for the Court’s consideration of partisan gerrymandering.



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