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The Supreme Court Isn’t Done With Gerrymandering Yet

The Supreme Court’s much-awaited gerrymandering decisions were released on Monday, and they landed with a resounding meh.

The court declined to touch the merits of the two cases under consideration and instead rejected them for procedural reasons.1 That means extreme partisan gerrymandering will end the day the way it began: in legal purgatory. Still, the court is likely to have additional opportunities to weigh in on the gerrymandering debate soon.

For now, however, things remain unclear. In a 2004 ruling, Justice Anthony Kennedy said that “extreme” partisan gerrymandering could be unconstitutional, but that the court would need a standard for deciding when a gerrymander crosses into “extreme” territory. Both of the cases before the court — Gill v. Whitford out of Wisconsin, and Benisek v. Lamone out of Maryland — presented the court with potential standards. But because the justices dismissed the cases on procedural grounds, we still don’t know what they think of those standards.2

The Maryland case arrived at the Supreme Court because a District Court did not grant a preliminary injunction, which would have essentially thrown out the state’s old map before a proper ruling. The Supreme Court agreed with that decision and is now letting the case play out in lower court.

The Wisconsin case involved a dozen Democrats asking the court to throw out a statewide map. But in its opinion, the court said that individuals do not have standing to sue to invalidate statewide maps since each voter is directly affected only by the specific district in which she or he lives. That is new information, but it’s unlikely to affect the central questions of the gerrymandering debate — only the route by which those questions are resolved. It is still possible, based on this ruling, that individuals can sue to have their own districts invalidated; and organizations such as state parties can sue to invalidate statewide maps.

In fact, both of these possibilities are likely to be tested soon. The Supreme Court sent the Wisconsin case back to district court, where the reformers involved will be able to litigate partisan gerrymandering district by district with plaintiffs who live in each area.

The second possibility, challenging a statewide map through an organizational plaintiff, could be tested in a North Carolina partisan gerrymandering case that could make its way to the Court next term. The Democratic Party of North Carolina is a plaintiff in that case.

Beyond that, there were a few noteworthy tidbits in Monday’s opinions.

The Wisconsin case relied on a mathematical equation, the efficiency gap, that reformers and court watchers alike were eager to see assessed by the court. During oral arguments, Chief Justice John Roberts called it sociological gobbledygook. In his opinion, however, he was much more restrained.

“We need not doubt the plaintiffs’ math. The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens,” he wrote. Instead, “the efficiency gap measure[s] something else entirely: the effect that a gerrymander has on the fortunes of political parties.”

The case out of North Carolina could test exactly that: the effect that a gerrymander has on the fortunes of political parties.

Roberts kept his opinion focused on the specifics of the Wisconsin case and did not lament the effects of gerrymandering or offer advice for future plaintiffs. But Justice Elena Kagan did. In her concurring opinion, she wrote that partisan gerrymandering “violates the most fundamental of all democratic principles” and suggested how the Wisconsin plaintiffs might litigate individual districts going forward, such as providing alternative maps that are less packed and cracked.


VIDEO: Uh, what is gerrymandering again?


Reformers can’t be sure that the path she laid out appeals to a majority of the court, though, because Justice Anthony Kennedy — a crucial swing vote — did not concur in Kagan’s opinion. If the court does ultimately rule partisan gerrymandering to be unconstitutional, it will likely be because Kennedy joins the four liberals in an opinion. Tea-leaf readers have pointed to the lack of resolution on gerrymandering as evidence Kennedy may stick around for another session. If that’s the case, it’s some solace to reformers, as another strict conservative on the court could make their goals all but impossible.

In any case, nobody — liberal or conservative — got the resolution on partisan gerrymandering they were looking for today. In fact, we learned very little overall about what the court thinks of partisan gerrymandering. But it won’t be long before these tough questions are back before the court.

Read more: The Gerrymandering Project

Footnotes

  1. If you’re familiar with the possible opinions we laid out in the runup to the decision, please see option three.

  2. We got a few meager clues during oral arguments, and in their opinions released on Monday. More on those in a moment.

Galen Druke is FiveThirtyEight’s podcast producer and reporter.

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