There’s No Quit in the Fight Over Partisan Gerrymandering

Justin Levitt, a professor at Loyola Law School, said it would be difficult to think of a partisan gerrymandering case with a "cleaner" set of facts to present the justices. He said the urgency in the briefing schedule since the North Carolina court received the case back makes it seem likely those facts will be before the justices again this term.

"It seems apparent the court is in a hurry to get the case before the Supreme Court," Levitt said in an interview.

Wolf explained that unlike the Wisconsin case, the North Carolina case has plaintiffs in each of the districts they are challenging, as well as groups like the League of Women Voters that represent voters across the entire state. He said the combination of these factors might make it easier for this set of plaintiffs to meet the standing threshold.

The other advantage the North Carolina case could have is that the Wisconsin case put all of the current justices on the record about how they feel about courts weighing in on partisan gerrymandering claims.

Wolf said between Chief Justice John Roberts' majority opinion and concurrences from Justices Elena Kagan and Clarence Thomas, all of the justices who would hear the North Carolina case have made known their opinions on at least the question of standing.

"They've been doing it with opinions from a court that's changed somewhat dramatically from the one that we have now," Wolf said. "So Whitford in particular gave us the first window onto what most of the sitting justices on the court seem to think about these issues in a long time."

Of course, the major exception to this point is Kennedy, who last month announced his decision to retire. Kennedy has long been the beacon towards whom partisan gerrymandering challengers have steered their claims, thanks to a 2004 concurring opinion he wrote saying he would be open to hearing such a case if someone could develop a workable test.

D.C. Circuit Judge Brett Kavanaugh, who Trump nominated earlier this month to take Kennedy's seat, is something of a blank slate on the gerrymandering question, leaving advocates unclear of how he would come down on the issue if he is confirmed.

Levitt said it is hard to say where a potential Justice Kavanaugh would fall, but did note Kavanaugh clerked for Kennedy on the Supreme Court.

Levitt also pointed out that while Kavanaugh has been a reliably conservative judge on the bench, partisan gerrymandering is not an issue that inherently cuts along partisan lines.

If the North Carolina effort fails, the eyes of advocates could turn to the states, where courts have been less hesitant about ruling on partisan gerrymandering claims.

The Pennsylvania Supreme Court has already delivered one such decision this year, in January striking down a 2011 legislative map it found gave an unfair partisan advantage to Republicans.

"While federal courts have, to date, been unable to settle on a workable standard by which to assess such claims under the federal Constitution, we find no such barriers under our great Pennsylvania charter," Pennsylvania Supreme Court Justice Debra Todd wrote in the full opinion, issued on Feb. 7.

Republicans took 13 of the state's 18 districts in each of the three elections under the map, while winning between 49.2 and 54.1 percent of the statewide vote each time.

Richard Briffault, a professor at Columbia Law School,  said the Pennsylvania decision could serve as something of a model for people looking to raise partisan gerrymandering claims under other state constitutions. He said if courts in a series of large states come down with clear rulings on the subject, it could have ripple effects.

Wolf said state court litigants can also borrow some strategies from the unsuccessful efforts that went before the Supreme Court, only with a more favorable constitutional structure to which to appeal.

"As we've seen in the Pennsylvania case, we have a broad and varied state constitutional tradition and in many cases state constitutions are more protective of voter rights than even our federal constitution is," Wolf said. "So to the extent that you can identify states that take up a broad view of voting rights, they may have more latitude to put meaningful limits in place around redistricting."

The court in the Pennsylvania case rested its decision on the Pennsylvania Constitution's free elections clause and 24 other states have similar language in their constitution, according to a report by the Campaign Legal Center.

Still other state constitutions have equal protection, free association and free expression clauses, which could potentially allow groups to bring state court versions of the cases that made it before the Supreme Court last term.

There is a potential road block in the state courts, however, as some states courts have held they must interpret their state constitutional provisions in the same way that courts have interpreted equivalent federal clauses.

While litigating partisan gerrymandering claims under state constitutions might be a more piecemeal process than earning a sweeping victory at the U.S. Supreme Court, experts say it could offer an easier path with another round of redistricting looming after the 2020 census.

"One benefit is it sometimes works, where nothing has worked in the Supreme Court," Briffault said of litigating partisan gerrymandering claims in state court.

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