On June 18, 2018 the Supreme Court finally gave its rulings for Gill v. Whitford and Benisek v. Lamone. In Whitford, Democratic voters were suing over the way that the Republican held legislature drew legislative districts in Wisconsin. The voters claimed that the districts were drawn in a partisan way against Democratic voters, so Republicans could keep more seats in the Wisconsin legislature. The Court ruled that the plaintiffs lacked standing to challenge the drawing of the districts and remanded the case back down to the lower court, so that the plaintiffs could show how they were injured.
In Benisek, the plaintiff was seeking a preliminary injunction on congressional elections in a district drawn by the Maryland legislature in 2011. The court ruled that the plaintiff did not seek relief soon enough, since the plaintiffs filed the lawsuit in 2016.
The rulings from the Supreme Court show the Court’s reluctance to resolve cases involving partisan gerrymandering. These rulings will keep gerrymandering cases from the Court in the short term, but the issue may be brought up again under other constitutional and factual grounds. In Whitford, Justice Kagan tried to give the plaintiffs another argument to use on remand in her concurrence. She wrote:
“But partisan gerrymanders inflict other kinds of constitutional harm as well. Among those injuries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations, and their members. The plaintiffs here have sometimes pointed to that kind of harm. To the extent they meant to do so, and choose to do so on remand, their associational claim would occasion a different standing inquiry than the one in the Court’s opinion.”
Justice Kagan’s concurrence shows that the Court might consider hearing a gerrymandering case under violation of the First Amendment right of association. This concurrence was also an attempt to possibly draw in Justice Kennedy for a majority ruling in a future gerrymandering case, since this First Amendment argument was mentioned in Justice Kennedy’s concurrence in Vieth v. Jubelirer. The liberal justices on the bench in the future may want to use this argument as a way to establish how districts should be drawn, instead of leaving this choice to state legislatures.
Here at LDF, we disagree with bringing a case like this to the Supreme Court. Courts should not be infringing on states by dictating how state district lines should be drawn or redrawing district lines and making the political judgments that partisan gerrymandering plaintiffs are asking courts to make. Instead, we advocate for district drawing to be done at the state level by state legislatures or the process established by state legislatures and not done by the judicial branch by state and federal courts.