On Gerrymandering, Supreme Court Kicks The Can Down The Road

What Was Potentially A Powder Keg Of A Ruling, Ends Up As A Fizzle…

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In the short term at least, the ruling benefits Republicans in Wisconsin, and other states that had redistricting questions on hold awaiting this ruling. But it leaves the door open to future challenges. Problem is, there’s no way of knowing when in the future. As the Washington Post puts it: “the status quo remains”.

The decision was unanimous, although not all Justices agreed with all parts of Chief Justice John Roberts’ opinion. And the Court didn’t really make any determination about the Constitutionality of partisan gerrymandering itself, just that the people who brought the case didn’t have the standing to do so. As UC Irvine law Professor Rick Hasen explains it, the Court believes “partisan gerrymandering challenges [need] to be litigated on a district-by-district, rather than statewide, basis.”

So the High Court suggested they try again in lower courts, this time challenging voting districts only in the specific areas where they personally vote (because that’s the only way they can prove they were actually injured by gerrymandering). Of course, if a court determines someone’s district needs to be redrawn, it then necessarily means a neighboring district will need to be redrawn too, and once that district is redrawn…etc…until eventually that changes over an entire state. In a concurring opinion, that’s exactly the scenario Justice Elena Kagan suggested could easily be a future outcome.

So basically the Justices’ decision served to provide advice in the approach: telling the plaintiffs to do it from the inside out, instead of from the outside in, in order to have a chance.

Of course, cases take a long time to work their way through the court system back up to the Supreme Court, meaning don’t expect anything that might impact the next election (or maybe even the next couple). And remember, as the Brennan Center for Social Justice tells us, due to the impact of partisan gerrymandering, Democrats will have to win the popular vote by a wide margin this fall: 11 points, in order to flip the House.

And even then there’s no guarantee: it’s worth noting that Justices Gorsuch and Thomas would’ve just thrown the case out altogether; not that significant to this week’s ruling, but if one thinks about the type of folks Trump and his cronies dream about populating the Court with in coming years, this could easily become the prevailing viewpoint.

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Wisconsin Congressional districts now (l) and prior to 2013 (r). Used to be much more along county lines; now a lot of “creative” carve-outs

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