The Supreme Court will once again wade into the world of partisan gerrymandering – that is, the practice of purposely drawing district lines to favor one party and put another at a disadvantage. The justices announced today that they will review Wisconsin’s appeal of the decision by a three-judge district court striking down, as the product of partisan gerrymandering, the redistricting map that the Republican-controlled legislature created after the 2010 census. The lower court also ordered the state to create a new redistricting plan by the fall, but a deeply divided Supreme Court today put that order on hold. The Supreme Court’s ruling in the case, which is likely to come next year, will almost certainly be a major one that could affect redistricting efforts for decades to come.
When the Supreme Court last tried to take on the issue of partisan gerrymandering in 2004, the result was deeply unsatisfying for almost everyone involved. In a challenge to Pennsylvania’s redistricting plan, four justices – Justice Antonin Scalia, joined by then-Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Clarence Thomas – agreed that courts should never review partisan-gerrymandering claims, because it is too hard to come with a manageable test to determine when the role of politics in redistricting is too influential. Four other justices – Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer – believed that courts should be able to review partisan-gerrymandering claims. The key vote in the case came (as it so often does) from Justice Anthony Kennedy, who agreed that the Supreme Court should stay out of the Pennsylvania case but left open the door for courts to have a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found.
Thirteen years later, it appears that the justices are ready to try again. In its brief seeking review of the district court’s decision, Wisconsin complains about various aspects of the lower court’s ruling. It argues, for example, that the plaintiffs cannot challenge the map in its entirety, but instead need to go district by district, and that the plan cannot be a partisan gerrymander if it is also consistent with traditional redistricting principles. But the state is also playing for all the marbles. It observes that “wasteful and fruitless litigation” over partisan gerrymandering has continued over the past 13 years, and it maintains that because this “additional experience has failed to yield a ‘limited and precise’ standard” for evaluating partisan-gerrymandering claims, the Supreme Court should rule that such claims “are nonjusticiable.”
Wisconsin filed its request for review in March, but in May it also asked the justices to put the lower court’s order requiring new maps on hold until they can resolve the state’s appeal. In an order issued shortly after the justices left the bench this morning, the Supreme Court agreed to do so. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan indicated that they would have denied the state’s request. But the fact that the state could muster the five votes needed for the stay bodes poorly for the challengers, because one factor that the justices had to consider in making their decision was whether the state is likely to succeed on the merits of its claim.
No matter how the Supreme Court ultimately rules, its decision will be significant. If the justices were to hold that courts cannot review partisan-gerrymandering claims, their ruling could insulate redistricting maps from challenges, allowing the political party in power to extend its control for decades: The dominant party will be able to draw districts to maximize its chances of maintaining control of the state legislature, which will in turn allow it to draw the new map after the next census. On the other hand, a ruling that courts can evaluate partisan-gerrymandering claims could open the door to a flood of litigation challenging existing and future maps. Of course, this assumes that the Supreme Court rules on the merits of the case at all: Today’s announcement also indicated that the justices would put off a decision on whether the court has jurisdiction to review the case until they hear the merits of the case. Postponing the determination of whether the court has jurisdiction could prove to be just a formality, or it could provide a way for the justices to sidestep a ruling on the merits if the case proves too hard – only time will tell.
The case will likely be argued in November or December, with a decision to follow next year – perhaps only a few months before the 2018 elections, and less than two years before the 2020 census.