The justices of the Supreme Court can agree on at least one thing—they do not want to rule on the constitutionality of partisan gerrymandering in 2018.
On Monday, the court punted two major political redistricting cases: Gill v. Whitford, a challenge to Wisconsin’s Republican gerrymander, and Benisek v. Lamone, a challenge to Maryland’s Democratic gerrymander. Together, Gill and Benisek presented the Supreme Court with an opportunity to finally decide whether legislators violate the Constitution when they draw districts designed to dilute the power of voters’ ballots on the basis of their political associations. Instead, the court shooed away both cases on plausible but not entirely satisfactory grounds. Its nondecision will allow partisan gerrymandering to continue for the time being. Yet Justice Elena Kagan’s concurring opinion provides a road map for voting rights advocates to follow in the future—one that might attract Justice Anthony Kennedy’s vote if he remains on the court.
Ironically, Gill’s assault on Wisconsin’s gerrymander failed for precisely the reason that so many advocates thought it would succeed. In 2004, the Supreme Court splintered on the question of whether the judiciary can strike down a legislative map drawn along unduly political lines. Kennedy declared that courts might be able to, because partisan gerrymandering constitutes a genuine threat to voters’ First Amendment rights to free association and expression. But first, Kennedy wrote, the courts would need reliable, manageable, and consistent “judicial standards” to determine when, exactly, a gerrymander infringes upon these rights.
Gill marked an effort to hand Kennedy that standard, in the form of the “efficiency gap.” This formula measures two types of “wasted votes”: “lost votes” cast for a defeated candidate and “surplus votes” cast for a winning candidate that weren’t necessary for her to win. As its creator explains it, the efficiency gap measures “the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” A large efficiency gap indicates a particularly egregious partisan gerrymander; an efficiency gap of 7 percent can entrench the majority party’s power indefinitely. Wisconsin’s GOP-drawn gerrymander has an efficiency gap of 13 percent, indicating that Democrats could not possibly win back a majority in the state legislature. The Gill plaintiffs used this calculation as proof that Wisconsin Republicans had trammeled their First Amendment rights.
But here’s the problem: In order to bring a lawsuit in federal court, an individual must have standing—a “particularized injury” that burdens their rights individually. And in Gill, the group of voters who sued Wisconsin Republicans had not proved that their specific votes had been diluted on account of their association with the Democratic Party. Instead, Chief Justice Roberts wrote in his majority opinion, they “rested their case” on a “theory of statewide injury to Wisconsin Democrats.” This statewide injury, Roberts held, was not sufficiently particularized to give the plaintiffs standing to sue. So he sent the case back down to the lower court, giving the plaintiffs another opportunity to prove that Wisconsin’s gerrymander directly injures them.
Six other justices, including Kennedy, joined all of Roberts’ opinion. Justice Samuel Alito signed on, as did the liberal justices—Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Kagan. Justices Clarence Thomas and Neil Gorsuch wrote separately to explain that they would have simply dismissed the case without giving the plaintiffs another chance to prove that they have standing.
Kagan, on the other hand, wrote a concurring opinion, joined by the other three liberals, effectively providing the plaintiffs with guidance on how to prove standing next time around. After reiterating that partisan gerrymandering is “incompatible with democratic principles,” Kagan explained that the plaintiffs should now “introduce evidence that their individual districts” were drawn to dilute Democratic votes. Moreover, the lower court should still “consider statewide evidence,” such as GOP mapmakers’ explicit desire to create a map that disfavored Democrats. Taken together, this evidence should suffice to give the plaintiffs standing.
But Kagan went further, giving the plaintiffs a different route to victory on their second try. The justice explained that partisan gerrymandering may burden a voter’s constitutional rights even if she does not live in a gerrymandered district. In Wisconsin, for example, all members of the state Democratic party are “deprived of their natural political strength by a partisan gerrymander.” As a result, members of this “disfavored party … may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office.” Individual voters may have standing, Kagan wrote, when mapmakers burden their “associational rights” in this manner. And their injury—a broad harm to their “First Amendment rights of association”—would be fairly easy to prove.
With Gill set aside, the court unanimously punted on Benisek, essentially declaring that because it didn’t decide Gill, it can’t decide Benisek either. Benisek involved a different challenge to partisan gerrymandering: The Republican plaintiff alleged that Maryland Democrats had retaliated against him by diluting his vote due to his association with the Republican Party, in violation of the First Amendment. In the court below, a 2–1 majority refused to invalidate the gerrymandered district, explaining that it would prefer to await firmer guidance from SCOTUS in Gill. But of course, SCOTUS has now declined to provide such guidance. So the justices simply affirmed the lower court’s decision in light of “these particular circumstances.”
The outcomes in Gill and Benisek are obviously a major disappointment for voting rights advocates. But these rulings don’t extinguish hope for a solution; Kagan’s concurring opinion lights a path forward that the Wisconsin plaintiffs should follow. It’s notable, though, that Kennedy declined to join her opinion, indicating that the justice may have given up hope on identifying a standard to help the court distinguish especially bad gerrymanders. Without Kennedy’s vote, opponents of political redistricting may well be doomed. On the other hand, Kennedy (along with Roberts and Alito) declined to dismiss Gill outright, suggesting that the justice might welcome another challenge. All in all, Gill and Benisek leave advocates roughly where they started: feeling around in the dark for a brilliant solution to this enduring problem that can garner five votes on the Supreme Court.