Last week the U.S. Supreme Court dashed the hopes of those wanting a clear judicial limit on gerrymandering of legislative districts for purposes of partisan advantage by sending two major cases back to lower courts. A Maryland case (Benisek v. Lamone) actually involved an effort to keep the allegedly gerrymandered congressional district in question from being utilized in the November midterms, and the court rejected that bid and sent the rest of it back for further deliberations. The bigger case was Wisconsin’s, Gill v. Whitford, in which a lower court held that an entire state legislative map was unconstitutional because it was engineered to produce a particular and unrepresentative outcome — and offered a quantitative formula for determining excessive partisanship in redistricting. SCOTUS sent that case back to lower courts on grounds that they should have insisted on a showing of harm to plaintiffs in each affected district instead of allowing a challenge to an entire map.
Though it was at a different stage of the appeals process, a North Carolina case, Rucho v. Common Cause, may have provided the best test of partisan gerrymandering available to the Court, because the GOP legislators who drew the congressional map in question went out of their way to publicly admit partisan motives. Why? Because they were trying to overcome past court rulings that deemed their redistricting decisions as racially motivated; up until now, partisan gerrymandering has been considered constitutionally sound.
But the procedural “standing to sue” issue that SCOTUS used to dodge a decision on the merits in the Wisconsin case proved a handy excuse for delay on the North Carolina case, too. So today the Court sent it back to district court for fact-finding on that issue.
As a practical matter, that probably means none of the partisan gerrymandering cases are likely to get back to SCOTUS before the term-after-next, which means the issue could well hang fire right up until the 2020 elections that will set the table for the next round of decennial redistricting. There’s no way to know right now if the swing justice in these cases, Anthony Kennedy, will even still be on the Court at that point.
