It’s not over till it’s over, and all eyes are now on North Carolina to carry on the partisan gerrymandering fight after the U.S. Supreme Court sidestepped two opportunities from other states to intervene.
The court released two highly-anticipated opinions Monday: Gil v. Whitford, a challenge to Republican partisan gerrymandering in Wisconsin, and Benisek v. Lamone, a challenge to a Democratic partisan gerrymander in Maryland.
While justices didn’t actually address whether extreme partisan gerrymandering violates the Constitution in either case, they did leave open a door in Gil for plaintiffs to prove individual harm from the practice in each of their districts.
It was viewed as a brief blow to the plaintiffs and court-watchers across the country who were hoping for the court to finally weigh in on the issue, but it wasn’t a total loss because Justice Elena Kagan left a roadmap for what might work in the future.
She agreed that her fellow justices were right to dismiss Gil for lack of standing because the plaintiffs did not meet their constitutional burden, but she also made clear that the Court had already established partisan gerrymandering is “incompatible with democratic principles.”
“More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will,” Kagan wrote. “And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches.”
The practice, she added, “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. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy,” she wrote.
The Court opinion written by Chief Justice John Roberts establishes that the fundamental problem with the Gil case is that it focuses on group political interests and not individual legal rights.
“But this Court is not responsible for vindicating generalized partisan preferences,” he wrote. “The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
To be successful, individual harms would need to be proved district by district, according to that opinion.
Kagan, however, addressed potential arguments that could lead to statewide reform, including a First Amendment claim of the right to freedom of association.
“As so formulated, the associational harm of a partisan gerrymander is distinct from vote dilution,” she wrote. “Consider an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left untouched (neither packed nor cracked). His individual vote carries no less weight than it did before. But if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party.”
Justices Clarence Thomas and Neil Gorsuch wrote in a separate concurring opinion that they would have ended Gil, not sent it back to the lower court.
Justice Anthony Kennedy, who has been viewed as the potential swing vote on partisan gerrymandering issues, did not join in Kagan’s concurring opinion, but an attorney for the plaintiffs didn’t read into it.
Paul Smith, vice president of litigation and strategy at Campaign Legal Center, said during a press teleconference Monday that he’s confident they will establish standing in the lower court and work their way back to the high court.
In the meantime, he pointed out that justices will “take a look at” a pending appeal in the North Carolina partisan gerrymandering cases and that they could set argument as early as this fall.
“I think there are plaintiffs all over the place down there that would have standing,” he said.
Allison Riggs, a Southern Coalition for Social Justice attorney working on that pending case, agrees.
“North Carolina remains the most crystal clear example of why a rule creating limits on partisan gerrymandering is so necessary,” she said after the Gil opinion was released. “The record evidence of constitutional injury presented in our case is overwhelming — legislators intentionally cracked and packed millions of North Carolina voters to silence their political voice.”
She said the court’s opinions Monday were largely procedural and the issues that prevented a substantive ruling were not the same in the North Carolina cases.
Common Cause v. Rucho and League of Women Voters v. Rucho are the two cases pending on appeal at the Supreme Court.
The three-judge federal panel that heard the cases (at the same time) ruled that lawmakers unconstitutionally used partisan gerrymandering in their 2016 congressional map by burdening voters’ freedom of speech and freedom to associate based on their political beliefs, as well as, by treating voters unequally by diluting the electoral influence of one party’s supporters.
The court’s remedy was ultimately put on hold by the Supreme Court while justices deliberated Gil and Benisek.
Common Cause North Carolina Executive Director Bob Phillips agreed with Riggs that the cases do not present the procedural issues the Supreme Court addressed in Gil.
“We continue to be confident that given the overwhelming evidence in our case, the U.S. Supreme Court will ultimately uphold the federal district court’s landmark decision in Common Cause v. Rucho that found partisan gerrymandering to be unconstitutional,” he said. “We must end gerrymandering to ensure all voters have a voice in our democracy.”
Democratic legislators — particularly in areas affected by gerrymandering — and voting rights advocates expressed disappointment that the court didn’t set guidelines for partisan gerrymandering.
“Gerrymandering is one of the most harmful abuses against our democracy,” said Rep. Cecil Brockman (D-Guilford). “It is an exploitation of power by politicians at the expenses of voters. The Supreme Court has made a disappointing decision to punt on this case. They need to do their job, protect voters, and put an end to gerrymandering.”
Sen. Jay Chaudhuri (D-Wake) said he was disappointed in a tweet but that he expected all eyes to be on the North Carolina cases.
Democracy North Carolina’s Executive Director, Tomas Lopez, said the Supreme Court’s opinions Monday underscore the continued need for reform.
“North Carolina’s voting districts are some of the most distorted in the nation, and for too long politicians have used their partisan gamesmanship as a defense,” he said. “We hope that the Court will ultimately adopt a standard that takes away that defense, and that our state reforms the redistricting process by taking it out of politicians’ hands and into those of their constituents.”