WASHINGTON (CN) – Two political gerrymandering cases that stoked voter passions across the United States fizzled on procedural grounds Monday at the Supreme Court.
While the justices vacated the ruling in the Wisconsin, saying that the lower court must better address on remand whether the voters have standing, they affirmed denial of an injunction in the Maryland case.
A dozen Democrats had brought the Wisconsin case in 2015, saying lawmakers there had given Republicans an unfair advantage by carving out gerrymandered voting districts that limited the impact of Democratic votes.
Though a panel of federal judges ruled 2-1 that the redistricting amounted to gerrymandering, the Supreme Court was essentially unanimous this morning that this merits ruling bypassed the issue of standing.
Six associate justices signed on to the lead opinion of Chief Justice John Roberts in the Wisconsin case, otherwise known as Gill v. Whitford.
The two partial holdouts, Justices Clarence Thomas and Neil Gorsuch, concurred in the judgment but said they would not give the plaintiffs another chance to prove their standing on remand.
“After a year and a half of litigation in the District Court, including a 4-day trial, the plaintiffs had a more-than-ample opportunity to prove their standing under these principles,” Thomas wrote in a separate opinion that Gorsuch joined. “They failed to do so. Accordingly, I would have remanded this case with instructions to dismiss.”
Chief Justice Roberts emphasized meanwhile that dismissal is not appropriate based on allegations that four of the voters live in districts “where Democrats like them have been packed or cracked.”
In a second concurring opinion, which Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined, Justice Elena Kagan offered the plaintiffs some advice on what they can show to prove standing, and what to expect if they prevail.
The opinion by Kagan concludes with an blistering rebuke of the gerrymandering trend.
“Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides,” she wrote. “The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record. The technology will only get better, so the 2020 cycle will only get worse.”
In the second gerrymandering case before the court, Benisek v. Lamone, a group of Maryland voters insisted that they should be granted an injunction to prevent irreparable harm.
But the Supreme Court found Monday that the plea for immediacy rings hollow when the plaintiffs waited to seek relief six years and three general elections after the 2011 map was adopted.
“The record suggests that the delay largely arose from a circumstance within plaintiffs’ control: namely, their failure to plead the claims giving rise to their request for preliminary injunctive relief until 2016,” the unsigned opinion states.
Because the Wisconsin case remains unresolved as well, the justices said the Maryland court did not abuse its discretion in denying relief to the voters.
Paul Smith, an attorney for the Wisconsin voters at Campaign Legal Center, emphasized that their suit will continue.
“This case is very much still alive,” Smith said in a statement. “We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with. When legislators draw voting maps to favor one party over another and to stay in power, voters no longer have a voice in the political process. Extreme partisan gerrymandering is increasingly getting worse – damaging our democracy and eroding voters’ confidence in our system. We will continue advancing efforts, in this case and others as well as through the political process, to end this practice and safeguard every citizen’s fundamental right to vote and have it count.”
Experts at the Brennan Center for Justice at NYU School of Law made a similar point.
“While it’s disappointing to see the court punt, the decisions aren’t losses,” Michael Li, senior counsel at the Brennan Center, said in a statement. “Both cases go on, and the justices will have the chance to finally say something about when gerrymandering is illegal next term, in a case out of North Carolina with overwhelming evidence of how gerrymandering quashes voters’ voices. Until then, Americans should redouble their efforts to fix the redistricting process before the next national redistricting in 2021 – ensuring states draw fair maps that give voters a choice.”
The Brennan Center had been joined by the firm Holwell Shuster in an amicus brief for the Benisek case.
“We are disappointed that the court did not address the merits in Whitford or Benisek,” Holwell Shuster attorney Vincent Levy said in a statement. “At least a plurality of the court recognized, however, that partisan gerrymandering runs contrary to core principles that are at the very foundation of our democracy — and echoed the concern that extreme partisan gerrymandering has ‘sounded the death-knell of bipartisanship.’ We are confident that the court will eventually recognize that extreme partisan gerrymandering is unconstitutional.”
Holwell Shuster had used the death-knell language in an amicus brief for the Whitford case, which Kagan quoted in her concurrence to document how “the evils of gerrymandering seep into the legislative process.