June 19, 2018 –
The US Supreme Court just announced their decision in two high-profile, highly-charged voter redistricting cases, Gill v. Whitford and Benisek v. Lamone. To the amazement of many pundits, the Court virtually dismissed them both! So what does this all mean?
Yesterday, the Supreme Court of the United States “SCOTUS,” decided to dismiss the cases of Gill v. Whitford, on a variety of procedural and legal doctrinal grounds–even though both cases were long championed by proponents to be the touchstones to “reign-in” partisan gerrymandering. Instead, the cases became more of a roadmap, and less of a winning ticket.
Speaking with one Voice
The Court decided–unanimously–in Gill v. Whitford to dismiss the case, and in Benisek v. Lamone, the Court sent it back down to the court below.
One may ask why? The answer it seems, is the Court is looking to for a better test case to the “partisan gerrymandering” issues. In its opinion, the Court provided a means for future cases to hone their arguments and get all their “procedural” housekeeping issues in order.
For the most part, the basis of these cases are claims are of partisan gerrymandering and “vote dilution.” The claim is that there has been intentional and purposeful drawing of district voting lines by the legislative parties in power to ensure they stay in power. The result, state governments that disenfranchise district voters, by diluting their vote so no party can win a district election–other than the party in power. This is accomplished by manipulating the district lines with almost mathematical certainty to effectuate the intended result.
Not surprisingly, many of these districts voters were welcoming any sign of voter relief–but what they got instead was another “wait and see.” For the plaintiff’s, the ruling was far less than comforting. Many in the legal world have referred to the action of SCOTUS’ as a “punt”– akin to a move at a football game that could prove a strategic move to score points later in the game–but not scoring them at the moment. Make no mistake, voter disenfranchisement is not accomplished by playing fair–it is accomplished by cheating. It is the “deflate-gate” of voting. Nevertheless, even though the Supreme Court didn’t decide Gill and Benisek, what they did do is elucidate how the “game” may be won using strategy at some point down the road.
Discussed were issues such as determining “manageable standards” to diagnose whether there has been partisan gerrymandering has occurred, and if in fact it occurred, the question is: Does it rise to the level of violating the Constitutional rights of the districts’ voters? But alas, district voters must wait for another day–when the winds of gerrymander are right to fan a smoldering fire.
But despair not–there is some light at the end of the litigation tunnel, as it appears both cases these recent cases missed vital opportunities. Upon review, the Supreme Court provided a critical action plan for litigation practice, as well as provide principles to shape what has come to be known as “partisan gerrymander doctrine.”
What Did the Court Clarify?
It clarified what is needed to make out a successful partisan gerrymander case. This includes:
- The lack of “proportional representation” by itself – is not a sufficient basis for a viable partisan gerrymander claim.
- As in the case of Vieth v. Jubelirer, the Court sets out the requirements of “intent and effect” needed for a viable gerrymander claim.
Although both cases missed opportunities to strike down extreme gerrymanders, the opinions did articulate several contributions to partisan-gerrymandering doctrine and standards for litigation practice. Recall that even in previous decisions in which the Supreme Court declined to strike down partisan gerrymanders, it nevertheless offered principles that began to shape the doctrine — principles of which the litigants in Gill and Benisek themselves relied. In past cases such as Davis v. Bandemer, the Court made clear that the “lack of proportional representation” is not a sufficient basis for a partisan-gerrymandering claim. And in the case of Vieth v. Jubelirer, the Court set out the structure of partisan-gerrymandering claims as one that requires both intent and effect. In Gill, the plaintiffs made clear that the efficiency gap – (a mathematical standard that measures partisan advantage by calculating“wasted” votes) — is not predicated on proportional representation. They presented a theory of partisan discrimination comprising both intent and effect–but it did not go far enough with regard to statewide analysis. So, even thought Gill was “dismissed” by the Court, it may still serve to be the most helpful in setting partisan-gerrymandering precedent.
Standing Required
What became a sticky point in these cases was the issue of “standing,” that is a party’s legal right to sue. This issues has became the basis of much modern Supreme Court litigation. Without the legal right to sue – what the law refers to claim that embodies “a cognizable injury or harm” – or “identifiable injury” – if you don’t have it–there is no basis for a legal suit.
Even though the Court also reviewed precedent set in Obergefell v. Hodges; and Hollingsworth v. Perry–an opinion authored by Chief Justice John Roberts–Gill remains more helpful than Hollingsworth. For Gill “not only” explains the threshold test for standing, that is the requirement that a plaintiff suffer a “concrete and particularized injury,” it lays out what evidence is necessary for an individual plaintiff to have standing to challenge partisan gerrymandering under a vote-dilution-injury theory.
Why an Individual Plaintiff Cannot “Stand Up” for Statewide Injury
The Court outlined why an “individual plaintiff” cannot show statewide injury as a basis for “standing” to challenge partisan gerrymandering under a vote-dilution theory. For the analysis, the Court accepted that plaintiffs in cracked and packed districts have standing to challenge individual districts under such a vote-dilution theory. (To learn more about cracked and packed districts and how it is used to manipulate votes, watch The Legal Edition “Where to Draw the Line.”) In adding up those packed and cracked districts in any state suffering under an extreme partisan gerrymander, litigants can likely fashion a remedy to this vote-dilution harm that, in practice, may reach the entire state.
Speak Clearly & With One Voice
What’s unique about Gill v. Whitford, is that the Supreme Court spoke with a united voice, without the cloud of dissent that usually descends upon the Court in many partisan-gerrymandering cases. Even though Gill did not create substantive partisan-gerrymandering doctrine, it decidedly paved the path for litigants who may be next in line.
And the lesson of Benisek, teaches a valuable lesson about partisan-gerrymandering issues–teaching litigants to “seasonably” file their claims–that is without delay. If you see something wrong, act without delay to make it known. In a sense, the Court appears to chastise the litigants for waiting over three years to file a complaint seeking preliminary relief. Such a wait surely disqualified plaintiff’s from receiving any “emergency relief” and also sent the message that the harm was not so great if it was allowed to continue unabated for so long. And in many cases the “injunction process” may run out the litigation clock.
The Take-Away
The Court set out a detailed roadmap for cases in which plaintiff’s sincerely believe are motivated by partisan gerrymandering. With regard to “preliminary injunctions” the Court sends a message that it may not be worth the time and effort for litigants to seek these injunctions–as halting the process using the injunction process may do more harm than good as the revelation comes long before any actual litigation on the merits of the case–and it wastes precious time. And, the results are disruptive for both voters and candidates, doing more harm than good. This revelation came to light as the case of Purcell v. Gonzalez.
What does this all mean?
It means that in all voting rights cases, there needs to be orderly elections and a minimum of voter confusion. Injunctions can “up-end” this orderly and regimented voting process–causing voter confusion as to their polling place, who are the representative candidates, and for candidates – uncertainties as where all their constituents are located. This designation process and any injunction usually takes place before all facts are litigated.
**ARTICLE UPDATE – Sept, 2019
So for now, SCOTUS is waiting for the perfect test case to hone it’s gerrymandering principles. In the meantime, with a few exceptions, it is “business as usual” in voting districts across America.
To learn more about partisan-gerrymandering–what it is and how it works, and how it may soon be changing, visit ‘The Legal Edition’ online at: TheLegalEdition.com. See our program on “Gerrymandering” – part of our ongoing series.
Copyright © 2018 – Mary Kay Elloian, M.B.A., J.D., Esq.