What Does the Handwriting on the Wall in Gill v. Whitford Say?

Now that Justice Gorsuch has issued a majority opinion from the Court’s October sitting, it is most likely that Chief Justice Roberts is writing the opinion for the Court in Gill (unless the Court decides to hold the case over for re-argument next Term).

If the Chief is writing Gill,  he is in the majority in the case and the narrowest path to a decision in that context is for the Court to hold that there is no standing for individuals to bring partisan gerrymandering claims on a state-wide basis to a plan as a whole.  The underlying question is on what basis Justice Kennedy would be rejecting the lower-court opinion, since he would be the minimally necessary fifth vote, one would think, to producing a majority vote that rejects the lower-court decision.  At argument, Justice Kennedy commented that the state was on “strong grounds” on this standing issue, but then said nothing further about it himself.

What would follow if this is indeed the way Gill comes down?

  1.  It might still be possible that organizational plaintiffs – most obviously, the state Democratic or Republican party – would have organizational standing to bring statewide challenges to a plan as a whole.  As I understand Gill, there are no organizational plaintiffs in the case; the complaint was filed on behalf of 12 named individuals.  Whether organizational standing for a statewide challenge would remain viable could depend on precisely how Gill is written on the standing issue.
  2. The Maryland case, Benisek, would then become even more important.  If Gill is vacated on standing grounds but there is no majority that announces anything new about the substantive principles that govern partisan gerrymandering claims, Benisek ­­could become the vehicle through which a majority does actually tell us something meaningful about what those principles are.  Benisek also has potential procedural issues on which the Court could decide the case without, again, saying anything on the merits about the substance of partisan gerrymandering claims.  But the Court could also decide those issues do not stand in the way of it addressing the merits of what constitutes a proper First Amendment challenge to partisan gerrymandering.
  3. If Gill rejects statewide standing claims for individuals and does little more than that, this would mean individuals would have to bring district-by-district challenges arguing that their particular districts was the product of an unlawful partisan gerrymander.  As someone who has litigated these kind of cases in the racial gerrymandering context, I can say this will be a much more burdensome task for plaintiffs than the kind of theory the plaintiffs tried to litigate in Gill.  The problem will not be finding plaintiffs who live in each district being challenged, but the complexity of trying to reconstruct how each district was designed and for what reasons, absent detailed evidence from inside the redistricting process itself, which is often not easily available at the level of how specific districts were designed.  Plaintiffs will still be able to rely on statewide evidence, but they will use this evidence in the service of also proving that their specific district was the product of a partisan gerrymander.
  4. In Gill itself, the Court, after vacating the decision below, might remand to let the lower court decide whether to permit the individual plaintiffs to try to establish that the specific districts in which they reside are partisan gerrymanders. And the plaintiffs might seek to amend their original complaint to bring in plaintiffs from many other districts across the state, or even add the Democratic Party.  Dismissing the case on standing grounds at this stage would be a serious blow to that litigation, for sure, but not necessarily a fatal one.
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