With the Supreme Court’s decision in Gill v. Whitford, the door is now open under the right political circumstances for state courts to take over political redistricting. And the constitutional changes will be permanent…

In the Wisconsin political-gerrymandering case, Gill v. Whitford, decided by the Supreme Court last week, the Court avoided ruling on the substantive constitutional issue, but nevertheless established significant impediments to future such cases, and just as importantly delivered itself of a major ruling on the role of the judiciary in our country.

Looking to the 2018 congressional elections, the last year has seen efforts by Democrats in North Carolina, Wisconsin, and Pennsylvania to overturn redistricting plans drawn up by the Republican-controlled state legislatures of those states after the 2010 elections. Not coincidentally, electoral results in those three states will be central as to which political party will control the House after the November elections. The North Carolina case had been placed on hold by the Supreme Court pending its decision in Gill. The Pennsylvania case, filed in the state court system, succeeded when the state supreme court ruled that the legislature’s redistricting plan was unconstitutional under the state, not the federal, constitution. The Court itself replaced the legislature’s 2011 plan with its own. Additionally, in Benisek v. Lamone, Republicans had challenged the political gerrymandering of a single Maryland congressional district. In a ruling handed down with Gill, the Supreme Court let stand the decision of the Maryland district court denying a preliminary injunction. As such, the case can now proceed on the merits.

In Gill, the object of the suit was the statewide districting plan drawn up in 2011 after the Republicans won control of the state legislature in the 2010 elections. In a unanimous decision but with two qualifying, concurring opinions by five of the justices, Chief Justice John Roberts wrote that there were two issues: whether the Wisconsin plaintiffs had standing to bring the case, and whether partisan gerrymandering itself was justiciable by the federal courts. Because the case was decided solely on the first issue, Justice Roberts said that it was not necessary to decide the second. But in this unusual kind of case, the first issue has substantial impact on the second.

On behalf of the entire Court, Justice Roberts made a robust statement, citing and quoting precedents, about the limitations of the judicial power. He said that “a federal court is not a forum for generalized grievances,” that courts have “a properly limited” role “in a democratic society,” and that any plaintiff in a federal case must demonstrate “a personal stake in the outcome of the controversy.” To have “standing” under Article III of the Constitution, a plaintiff must show “an injury in fact.” The right to vote for a member of the House is personal, indeed, said Justice Roberts, but that right, citing Baker v. Carr, the Court’s original redistricting case, is “district specific.” Justice Roberts went on to point out that the Court’s line of racial gerrymandering cases, including the most recent, Alabama Legislative Black Caucus v. Alabama (2015), have uniformly held that a person complaining of racial gerrymandering “has standing to assert only that his own district has been so gerrymandered.” He concluded that the Wisconsin plaintiffs’ claim of injury to their “collective representation in the legislature” was the kind of “undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.” The Court did not have jurisdiction to adjudicate the case, Justice Roberts, speaking for all nine justices, concluded.

But instead of dismissing the case, the Court—unaccountably—remanded it to the Wisconsin district court to give the plaintiffs another opportunity to offer evidence, “unlike the bulk of the evidence presented thus far,” to prove individual harm. One might remark that a case that failed on account of the evidence should have been dismissed outright and that the plaintiffs should be required to file a completely new case with good evidence.

In her concurring opinion, Justice Elena Kagan, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor, took up Justice Roberts’ criticism of the evidence and laid out a roadmap for “what kind of evidence” plaintiffs in partisan gerrymandering cases “must offer to support” their claims. For, as she asserted, “courts have a critical role to play in curbing partisan gerrymandering.” She said that alternative state redistricting maps could be drawn up and offered by plaintiffs to show the impact of statewide districting on individual districts. That could prove individual standing, and then the door would be opened to address the justiciability of partisan gerrymandering itself. To Justice Kagan and her three agreeing justices, the only fault was that the plaintiffs did not offer the right kind of evidence. Even though Justice Roberts did not discuss the substantive issue of the constitutional status of partisan gerrymandering, they wanted to make sure that the impression was not left that it was constitutional and outside of the reach of the courts. What Justice Kagan did was to offer an “advisory opinion” to new plaintiffs on the subject.

However, after Gill, the obstacles to those seeking to have the courts take over legislative redistricting seem formidable and the admissible evidence spare. An individual in an individual district may file a suit claiming that his right to vote was diminished by the partisan design of his electoral district. Does that mean that the only preliminary evidence is the district’s lists of voters registered by party and the only conclusive evidence the party affiliation of the elected officials? If so, how many electoral cycles are needed to prove the case:  three, two, only one? Justice Kagan argues that some outside-the-district evidence must be admissible. But how much? If too much, then the Gill decision could be undermined on the issue of individual standing.

In Gill, the Pennsylvania case, and prior Supreme Court political-gerrymandering cases, the most-used tool of analysis has been what is called an “efficiency gap”—which measures votes that are “wasted” in voting for a losing candidate or voting for a winning candidate who did not need large margins of victory. But the efficiency gap is a tool of comparison. It compares each party’s “wasted” votes statewide and then district by district. Under Gill, it would seem that this basic analytical method, a version of which has been used in all the partisan gerrymandering suits, is no longer permitted.

The Pennsylvania Supreme Court

On political gerrymandering, Pennsylvania’s state supreme court has not had Gill’s scruples about standing and the role of the judiciary in a democracy. On January 22 of this year, that court, in an unprecedented decision by any high court, state or federal, eliminated the statewide congressional map drawn up by the Republican-controlled legislature for Pennsylvania’s eighteen congressional districts. Without bothering to produce a written decision at the time, the court merely said that the redistricting plan violated the state constitution “clearly, plainly, and palpably.” Warning that it would draw district lines itself, the court gave the state legislature eighteen days to come up with a new map. When the legislature refused to do so, the court, looking to establish district lines as soon as possible for the 2018 elections, promulgated its own redistricted map. Only on February 7 did the court stoop to enter an opinion.

The court held that the unique Free and Equal Elections Clause of the Pennsylvania state constitution—“Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage”—went beyond its literal meaning guaranteeing the right of suffrage in open and free elections. The words of the Clause should be interpreted “to the greatest degree possible,” the court said, to have an “expansive sweep.” Never mind that it had never been expansively understood as a means to nullify the legislature and aggrandize the court. Perhaps the Pennsylvania Supreme Court thought, without saying so, that the contemporary Republican-hatched threat to free elections was as grave a danger as past “military” attempts to prevent voting outright. The court went to great lengths to relate the history of the Clause and the political history of the state as purporting to show a historical justification and pretense for what it was doing.

Courts and Experts

Despite his strong statements about standing and the limited role of the courts, Justice Roberts said nothing about Article I, Section 4 of the United States Constitution, which gives state legislatures, subject to the approval of Congress, the authority to conduct elections, including the drawing of legislative districts. Thus, Justice Roberts avoided the issues of both federalism and the separation of powers. On the other hand, he along with the entire Court, also avoided creating a new constitutional “suspect class” of aggrieved citizens whose partisan views lost at the polls.

Regardless of Gill and prior Supreme Court decisions, and with Pennsylvania as the example, the door is now open under the right political circumstances—the supreme court in Pennsylvania was dominated by Democrats while the legislature was Republican—for  state courts in other states to take over political redistricting. And the constitutional changes will be permanent. It cannot be imagined that the supreme court of Pennsylvania will ever give up its new authority to draw political maps.

The largest voting bloc in the country is not Democrats or Republicans. It is Independents. No partisan gerrymandering case, state or federal, has dealt with that reality. In Pennsylvania, for instance, do Independents have a cause of action against the state supreme court’s new plan? And what about voting for the other party’s candidate or even switching parties? Does that give a voter standing for a new grievance?

Shall another part of American society be taken over and ruled by experts? This essay has not dealt with the details of the lengthy testimonies of the several professors who were called to testify as experts in electoral mathematics in both the Pennsylvania and Wisconsin cases. For instance, in its written opinion, the Pennsylvania high court observed that a certain proposed redistricting plan had “Reock Compactness Scores from approximately .31 to .46, which was significantly more compact than the 2011 Plan’s score of .278; and had a range of Popper-Polsby Compactness Scores from approximately .29 to .35, which was significantly more compact than the 2011 Plan’s score of .164.” It can be observed that this is beyond political science; it is political mathematics. And it is not public discourse. It is expertise par excellence. The public cannot understand it and thus will not be able to understand the consequences of whom and what they voted for.

Finally, lurking beneath the surface of all these cases—although denied by all the courts that have dealt with partisan gerrymandering—is the issue of proportional representation by political party (excluding Independents). All electoral mathematics must in the end deal with the percent of Democrats and Republicans who won and who lost at the local and the state level. How else can partisan redistricting be measured and then corrected? The Pennsylvania high court has already implicitly adopted proportional representation, and if other state and federal courts do likewise, proportional representation of Democrats and Republicans at every level of elective office, federal, state, local, will be the rule.

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