For those (mostly but not exclusive Democrats) hoping that the U.S. Supreme Court would establish a clear limit on gerrymandering of congressional and state legislative districts for partisan purposes, the Court today gaveth and taketh away. It agreed to review a divided three-judge district court ruling in Gill v. Whitford holding that Wisconsin’s Republican-drawn state legislative map involves a partisan gerrymander so extreme that it violates the First Amendment’s guarantee of a right to freedom of association. But in a 5–4 decision, it also put on hold that same lower court’s instruction to the Wisconsin legislature to redraw the suspect maps before the 2018 elections.
The grant of review should lead — though probably not until well into 2018 — to fresh SCOTUS guidance on this complicated but very significant issue. Gerrymandering on racial grounds has long been understood as potentially unconstitutional (indeed, Republican legislators have often defended racially suspect gerrymanders as “merely” partisan).
But while the Court in 2004 ruled in a 5–4 decision that in theory partisan gerrymanders could be unconstitutional, the Justice who provided the fifth vote, Anthony Kennedy, held that there was not yet any practical standard for measuring and adjudicating what represented “too much” partisanship in gerrymandering. The lower court in the Wisconsin case used a new measurement designed by academicians called an “efficiency gap” to measure the impact of gerrymandering on the “natural” impact of elections. Thus one key thing SCOTUS might resolve is whether that’s enough to make policing of partisan gerrymandering practicable.
The grant of Wisconsin’s petition to leave the current districts in place until SCOTUS rules on the constitutional law of the case probably means the decision will not occur in time to affect the 2018 elections there or in any other states. But it might also provide a solid tip for which way the wind is blowing within the Court in terms of the underlying issues, since this sort of injunctive relief is typically based in part on likelihood to succeed on the merits. Since Kennedy will assume his usual position as the swing justice, however, it is worth remember that he voted to halt same-sex marriages in two states in 2014 before writing the landmark opinion legalizing them nationally — in Obergefell v. Hodges — a few months later. It’s entirely possible that Kennedy does not know what he will decide once the case is heard.
There are other gerrymandering cases awaiting Supreme Court review, including one from North Carolina in which the Court earlier this month upheld a lower-court finding of a racial gerrymander but overturned an order for an immediate remapping. It is unclear whether all these cases will be consolidated by the court. Even if all the issues are not sorted out in time to affect the current maps being used by various states in 2018 and 2020, the current litigation could have a big impact on what happens during the next round of redistricting, which will begin after the 2020 elections.
