The attempt by Wisconsin Democrats to claim partisan gerrymandering as a form of actionable discrimination has failed at the Supreme Court — at least for now. In a decision joined at least in part by all nine justices, the court sent Gill v Whitford back to the district court after ruling that the plaintiffs failed to show “concrete and particularized injuries.” However, the decision stops short of dismissing the effort entirely, allowing the plaintiffs an opportunity to try again:
Held: The plaintiffs have failed to demonstrate Article III standing. Pp. 8–22.
(a) Over the past five decades this Court has repeatedly been asked to decide what judicially enforceable limits, if any, the Constitution sets on partisan gerrymandering. Previous attempts at an answer have left few clear landmarks for addressing the question and have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. See Gaffney v. Cummings, 412 U. S. 735, Davis v. Bandemer, 478 U. S. 109, Vieth v. Jubelirer, 541 U. S. 267, and League of United Latin American Citizens v. Perry, 548 U. S. 399. Pp. 8–12.
(b) A plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy,” Baker v. Carr, 369 U. S. 186, 204. That requirement ensures that federal courts “exercise power that is judicial in nature,” Lance v. Coffman, 549 U. S. 437, 439, 441. To meet that requirement, a plaintiff must show an injury in fact—his pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, and n. 1.
The problem with this case, the main opinion concludes, is that it wasn’t about individual voters and concrete harm to them. It was instead about the harm to the Democratic Party on the basis of their competitive posture, which is not the purview of the courts. No one lost the ability to vote or to have their votes count properly, the court ruled, even if gerrymandering has been determined unconstitutional in cases involving immutable characteristics such as race. The federal judiciary has a role in those instances because of the 14th and 15th Amendments (and the Voting Rights Act), none of which have to do with voluntary and mutable associations such as political parties. There is no constitutional burden that requires the court to intervene where political organizations do not get the representation they believe they are due:
(c) Four of the plaintiffs in this case pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, they presented testimony pointing to the lead plaintiff’s hope of achieving a Democratic majority in the legislature. Under the Court’s cases to date, that is a collective political interest, not an individual legal interest. Second, they produced evidence regarding the mapmakers’ deliberations as they drew district lines. The District Court relied on this evidence in concluding that those mapmakers sought to understand the partisan effect of the maps they were drawing. But the plaintiffs’ establishment of injury in fact turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560. Third, the plaintiffs presented partisan asymmetry studies showing that Act 43 had skewed Wisconsin’s statewide map in favor of Republicans. Those studies do not address the effect that a gerrymander has on the votes of particular citizens. They measure instead the effect that a gerrymander has on the fortunes of political parties. That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. Pp. 17–21.
However, in what looks like a punt, the court decided not to dismiss the case entirely:
(d) Where a plaintiff has failed to demonstrate standing, this Court usually directs dismissal. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354. Here, however, where the case concerns an unsettled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved, the case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. Pp. 21–22.
How much of a punt is this, though? The problem with the argument is that the court’s jurisdiction depends on how a gerrymander might intrude on the vote of individuals, not on the outcomes. In cases involving immutable characteristics, such as race and ethnicity, the issue would be whether that prevents voters from casting effective votes for candidates from their own communities. Unless Wisconsin Democrats can show that gerrymandering prevents individuals from voting for Democrats, it seems unlikely that any such argument can be sustained, given that Democrats can still run for these offices in these districts, and that the party has the resources to compete.
It’s a punt in the sense that the plaintiffs will get another shot and that the court hasn’t definitively closed off the idea of judicial intervention in partisan gerrymandering. But Gill makes the effort much more difficult, as Nina Totenberg points out:
Supreme Court punts on extreme partisan gerrymandering, but makes it more difficult to bring a suit in the future.
— Nina Totenberg (@NinaTotenberg) June 18, 2018
As it should. Redistricting is a political process, with very few crossovers to the judiciary, and those are limited to issues involving immutable characteristics. It would have been preferable for the court to throw the case out entirely, but it appears that Chief Justice John Roberts wanted the court to remain as unanimous on this decision as possible. The resulting precedent accomplishes much of the same effect, however. It will be difficult for the court to take its other partisan gerrymandering cases and apply this standard to any other outcome than dismissal.
Addendum: The Supreme Court also rejected an application for a temporary injunction sought by Republicans in Maryland on the alleged gerrymandering of a district by Democrats. That was more of a punt than Gill, but again shows that the court is very reluctant to assert an Article III interest in partisan issues of gerrymandering.