The State of Play on Partisan Gerrymandering Cases at the Supreme Court

There has been so much action on partisan gerrymandering recently, I thought it is worth gaming out what is likely to happen over the next few months in relation to a number of cases at, or heading, to SCOTUS.

Back in 2004 the Supreme Court in Vieth v. Jublelirer split 4-1-4 over what to do about claims that partisan gerrymandering violates the U.S. Constitution. Four Justices said it was non-justiciable, four Justices said it was justiciable and raised a variety of challenges, and Justice Kennedy, in the middle, agreed with the Court’s liberals that the cases were justiciable, but agreed with the Court’s conservatives that the proposed standards didn’t work.  He essentially told everyone to keep working on the issue and come back, maybe looking at the First Amendment, maybe history, and maybe computers.  The cases at or coming to the Court seek to satisfy Justice Kennedy in various ways.

Here’s the state of play; the Supreme Court heard argument in October in Gill v. Whitford involving a challenge to state legislative districts in Wisconsin. Gill raises a partisan gerrymandering challenge under the Equal Protection Clause, and the McGhee/Stephanopoulos “efficiency gap” figured in (but was not the entire basis) for the analysis. Last month, the Court somewhat surprisingly also agreed to hear full argument in a case challenging a Maryland congressional district as a partisan gerrymander under the First Amendment. I explained in this LA Times piece why the Court might have agreed to full argument in Benisek v. Lamone. Argument in the Maryland case will be later in the Spring.

The Court as soon as this week could agree to hear a few challenges to Texas redistricting, including to state House districts and to congressional districts. Although most of the issues in this case involve claims of Voting Rights Act violations and racial gerrymandering, one of the petitions raises a partisan gerrymandering claim from Texas. That part of the case could be held for Gill and Benisek, or set for argument. Indeed, it is possible this delays all of the claims.

In North Carolina, meanwhile, a three-judge court yesterday held North Carolina’s congressional redistricting plan, enacted after its earlier plan was found to be a racial gerrymander, was an unconstitutional partisan gerrrymander.  The Court accepted claims under the Equal Protection Clause, the First Amendment, and the Elections Clause. And today, a three judge court rejected the Elections Clause claim to a Pennsylvania congressional redistricting plan. (It had earlier rejected the other theories too).

The three judge court in North Carolina put the drawing of new districts on the fast track. I expect the state legislature will seek a Supreme Court stay pending final resolution, and given the Court’s track record (as I explained in this Washington Post piece) the Court is likely to grant it.

Given the timing of briefing at the Supreme Court, petitions on the merits in North Carolina and Pennsylvania would reach the Court too late for it to order briefing (at least under the normal procedures) this term. The most likely scenario is that such petitions will be held for the other partisan gerrymandering cases decided this term, and then remanded for reconsideration to the lower courts in late June.

One further wrinkle in Pennsylvania: there’s a state Supreme Court case pending over whether Pennsylvania’s redistricting violates the state constitution. That would not end up at the Supreme Court and could moot the federal case.

And in North Carolina: we are expecting an order as to state legislative districts found to be racial gerrymanders in the next few weeks. Expect that too, to end up on a quick trip to SCOTUS, where the state will ask anything that happens not to affect 2018.

What have I missed?



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