Updated 12:50 p.m. | The Supreme Court sidestepped a major ruling on partisan gerrymandering on Monday, leaving open the question of whether federal courts can decide if congressional or statehouse maps give one political party an advantage over another.
Voter rights groups and political parties saw potential for a blockbuster ruling in two cases, which could have changed the way states draw maps ahead of redistricting following the 2020 census. A decision to allow partisan gerrymandering claims could have unleashed district courts across the country to review political maps.
In a case challenging Wisconsin’s statehouse map, the Supreme Court ruled that the voters who filed the lawsuit did not have the legal right to bring the case. But seven of the justices also voted to send the case back to the district court to give the Wisconsin voters a chance to establish standing.
The justices also ruled narrowly in a second case about a Maryland congressional district, kicking the case back to a district court on procedural grounds with little comment and no notable dissents. The decision means the state’s congressional maps won’t be redrawn ahead of this year’s midterms. There was little chance of that anyway, since Maryland primaries are set for June 26.
Chief Justice John G. Roberts Jr. wrote a majority opinion in the Wisconsin case that focused on the individual rights of voters. He said the fundamental problem was that the case was about a group’s political interests, not individual legal rights, and “this Court is not responsible for vindicating generalized partisan preferences.”
The case came to the Supreme Court after a three-judge panel struck down Wisconsin’s map using in part a mechanism known as the “efficiency gap” — which expresses with a number the systematic advantage given to a political party. Other groups pitched alternative ways to measure the advantage.
Partisan gerrymandering works by reducing the effectiveness of one party’s voters, either by consolidating as many of their votes into a single district, known as packing, or by breaking party strongholds in a way that dilutes the votes, known as cracking.
The plaintiffs alleged that they had a personal stake in the case, “but never followed up with the requisite proof,” Roberts wrote. “The District Court and this Court therefore lack the power to resolve their claims.”
Such a ruling means this or another case could return to the high court, and another case about North Carolina’s congressional districts is looming. The justices in January put on hold a lower court order that found partisan gerrymandering and ordered a new map in North Carolina.
The justices acknowledged in the Wisconsin opinion that they have tried to decide this issue for five decades and “previous attempts at an answer have left few clear landmarks for addressing the question.”
Justice Anthony M. Kennedy, who was seen as the key vote on the issue, joined the majority but did not write separately to express his views. Justice Clarence Thomas, in a partial dissent joined by Justice Neil Gorsuch, wrote that he would have dismissed the case since the plaintiffs had failed to establish standing.
Justice Elena Kagan, in a concurring opinion joined by the liberal wing of Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor, wrote that the courts have “a critical role to play in curbing partisan gerrymandering.”
When legislators can entrench themselves in office despite the people’s will, “the foundation of effective democratic governance dissolves,” Kagan wrote. And she added that partisan gerrymandering will only get worse as technology improves that would allow states to capture every bit of partisan advantage without violating traditional limits of redistricting.
“Indeed, the need for judicial review is at its most urgent in these cases,” Kagan wrote. “For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.”
During oral arguments, lawyers for the voters suggested a wrong move by the court could cause the country “to lose faith in democracy, big time.” But the court's conservative justices appeared reluctant to step into what has historically been the political process of redistricting.
The liberal justices grappled for a workable standard for judges to follow when analyzing whether a state’s maps gave such an advantage to one political party over the other that it violated the Constitution.
The Wisconsin case is Gill v. Whitford, and the Maryland case is Benisek v. Lamone.
Watch: The Many Ways to Draw a Gerrymander