Supreme Court Casts Doubt on Statewide Gerrymandering Challenges

(Bloomberg) -- The U.S. Supreme Court cast doubt on the ability of voters to challenge statewide maps for being excessively partisan, siding with Republicans in a fight over GOP-friendly voting lines for the Wisconsin Assembly.

The unanimous ruling Monday was a compromise that sidestepped the biggest issues and didn’t resolve whether a voting district can be so partisan it violates the Constitution. It was nonetheless a blow to opponents of partisan gerrymandering. They had hoped the high court and swing Justice Anthony Kennedy would create a potent new tool in election litigation.

The court said the Wisconsin Democratic voters who sued hadn’t shown they have legal standing to challenge the entire statewide map. Writing for the court, Chief Justice John Roberts suggested any partisan gerrymandering challenges would have to proceed on a district-by-district basis. That’s already the rule for cases involving racial gerrymandering.

“The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm” they suffer in the legislature as a whole, Roberts wrote. “But our cases to date have not found that this presents an individual and personal injury of the kind required” by the Constitution.

The justices sent the case back to a lower court to give the challengers another chance to argue that their lawsuit should be able to proceed, at least with regard to the districts of some of the suing voters.

Right of Association

In a concurring opinion for four justices, Justice Elena Kagan said the court left open an avenue for statewide challenges using a legal theory that wasn’t the focus of the Wisconsin case. Kagan said voters and political parties might still be able to show that a map violated their First Amendment right to associate with like-minded people.

"Partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one," Kagan wrote. "Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy."

Roberts said the court would "leave for another day consideration of other possible theories of harm not presented here."

The court could decide in the coming days to revisit the issue next term with a case involving a Republican-drawn congressional map in North Carolina. A three-judge court threw out the map, saying the lawmakers who drew it were "motivated by invidious partisan intent."

"It’s conceivable they’ll set it for argument next fall," said Paul Smith, a lawyer who represents the Wisconsin and North Carolina Democratic challengers.

In a statement, Smith said the Wisconsin suit "is very much still alive." He added: "We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with.”

Wisconsin Attorney General Brad Schimel, a Republican, called the decision "a win for the rule of law in Wisconsin."

Maryland District

In the second ruling Monday, the court without any dissents cleared a Democratic-drawn congressional district in Maryland for use in the November election, upholding a lower court’s refusal to block use of the district. In its unsigned opinion, the court left open the possibility the district would have to be redrawn for future elections.

Critics say partisan gerrymanders undermine democracy, leaving voters with little influence over who represents them. Republicans are the most frequent beneficiaries, largely because their success in the 2010 elections let them draw many of the current maps.

Although the Supreme Court has long curbed the use of race as a redistricting factor, the court has never put similar limits on the role partisanship can play. In 2004 Kennedy wrote a pivotal opinion that left open the possibility of limits on partisan gerrymandering but said opponents had yet to produce a manageable test to separate legal gerrymanders from unconstitutional ones.

Wisconsin Democrats sought to satisfy Kennedy with a test that relied on advanced statistical techniques. Their test included a measure known as the "efficiency gap," which focuses on how frequently votes are effectively wasted, either because they go to a candidate who loses or because they provide the winner with more support than was necessary to prevail.

Republicans created the Wisconsin map after winning full control of the state government in 2011, the first time either party had done that in more than 40 years.

‘Map Room’

Republican leaders took the unusual step of hiring a law firm that set up a restricted-access "map room," consulted with a statistician to assess likely electoral outcomes and drew the map in a secretive, four-month process. The legislature then took just nine days to approve the law that lays out the Senate and Assembly maps.

The map quickly proved to be a success for Republicans. In 2012 the party won less than half the vote for the Assembly but still got more than 60 percent of the seats.

Wisconsin Republicans argued that much of their advantage stems from the disproportionate number of Democratic voters who live in the two largest cities, Milwaukee and Madison. Republicans said that type of self-sorting made it virtually impossible to draw a map without creating some heavily Democratic urban districts.

Two months after hearing arguments in the Wisconsin case, the court expanded the fight by agreeing to also consider whether the Maryland congressional district was unconstitutionally drawn to ensure the ouster of a Republican lawmaker.

Maryland Democrats are defending the redrawing of the 6th District, which includes the westernmost part of the state. The district was held by Republican Representative Roscoe Bartlett until it was redrawn in 2011 to be more heavily Democratic. Democrat John Delaney now represents the district.

The cases are Gill v. Whitford, 16-1161, and Benisek v. Lamone, 17-333.

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