If the initial Supreme Court decision in Gill v Whitford didn’t signal a distaste for activism on gerrymandering issues, two actions by the high court today made it crystal clear. The more emphatic of these came in today’s orders rather than in an opinion, although the court did settle a gerrymandering case today, too. The court overturned an appellate court ruling in a North Carolina complaint of partisan gerrymandering, restoring the Republican-friendly outcome of the status quo ante:
Dealing a setback to Democrats on Monday, the U.S. Supreme Court threw out a lower court’s ruling that Republicans lawmakers in North Carolina drew congressional district boundaries to ensure lopsided victories for their own party, violating Democratic voters’ constitutional rights.
The justices sent the case back to a federal three-judge panel to reconsider whether the plaintiffs, including a group of Democratic voters, have the necessary legal standing to sue in the case involving a contentious practice called partisan gerrymandering.
The Supreme Court put on hold the lower court’s order that a new map be drawn, leaving the Republican-drawn districts in place for congressional elections in November, giving a boost to Republicans in their bid to maintain control of the House.
The fact that this order was not outcome-neutral offers some insight into the court’s overall willingness to accept that these cases are even appropriate for judicial review. The order today instructs the lower court to consider standing in the light of Gill, which the court remanded to give the plaintiffs an opportunity to make a better case for standing as well. The ruling, however, makes it very difficult to establish the kind of “concrete and particularized injury” required for standing when the cases are all about party performance:
Four of the plaintiffs in this case pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, they presented testimony pointing to the lead plaintiff’s hope of achieving a Democratic majority in the legislature. Under the Court’s cases to date, that is a collective political interest, not an individual legal interest. Second, they produced evidence regarding the mapmakers’ deliberations as they drew district lines. The District Court relied on this evidence in concluding that those mapmakers sought to understand the partisan effect of the maps they were drawing. But the plaintiffs’ establishment of injury in fact turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560. Third, the plaintiffs presented partisan asymmetry studies showing that Act 43 had skewed Wisconsin’s statewide map in favor of Republicans. Those studies do not address the effect that a gerrymander has on the votes of particular citizens. They measure instead the effect that a gerrymander has on the fortunes of political parties. That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights.
The issue of partisan gerrymandering doesn’t implicate individual voting capabilities at all. It suffers from attempting to graft the solutions for redistricting issues involving immutable characteristics (ethnicity and race) on mutable characteristics (party affiliation). The former can’t be changed and the Constitution speaks to voting and citizenship rights in that regard, especially the 14th and 15th Amendments, whereas there is no protected status for party affiliation in the Constitution.
The court also signaled a limit of its patience on the former today. In a ruling on Abbott v Perez, the court upheld most of a new redistricting map in Texas that was required after a previous one was found to be discriminatory on immutable characteristics. The legislature approved the latter plan after its creation by a court, but activists challenged it anyway:
After the 2010 census, Texas was awarded four new congressional districts because of the state’s population growth. Almost all of the growth came from an increase in black and Hispanic residents, but the new maps produced by the legislature fulfilled its goal of protecting Anglo Republicans, the challengers charged.
The maps were found by the district court to probably be unconstitutional, and the judges drew interim maps to be used in the 2012 elections.
The outcomes, though, were much the same. In 2013, the Republican legislature voted to permanently adopt those judicially drawn maps.
Texas argued it could not be a racial gerrymander when using the lines drawn by the neutral judges.
The 5-4 majority ruled that the legislature’s good faith in adopting the judiciary-drawn maps should have been assumed, and that the burden of proving otherwise should have been on the plaintiffs:
Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State. Reno v. Bossier Parish School Bd., 520 U. S. 471, 481. In redistricting cases, the “good faith of [the] state legislature must be presumed.” Miller v. Johnson, 515 U. S. 900, 915. The allocation of the burden of proof and the presumption of legislative good faith are not changed by a finding of past discrimination, which is but “one evidentiary source” relevant to the question of intent. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 267. Here, the 2011 plans were repealed, and not reenacted, by the 2013 Legislature. Nor did it use criteria that arguably carried forward the effects of the 2011 Legislature’s discriminatory intent. Instead, it enacted, with only small changes, the Texas court plans developed pursuant to this Court’s instructions. The Texas court contravened these basic burden of proof principles, referring, e.g., to the need to “cure” the earlier Legislature’s “taint” and concluding that the Legislature had engaged in no deliberative process to do so. This fundamentally flawed approach must be reversed.
The only exception to this ruling was one state house district, which was created outside of the judiciary-authored redistricting. And then re-created, and modified again after that, thanks to an argument as to which minority community should benefit most:
HD90 is an impermissible racial gerrymander. HD90 was not copied from the Texas court’s interim plans. Instead, the 2013 legislature substantially modified that district. In 2011, the Legislature, responding to pressure from counsel to one of the plaintiff groups, increased the district’s Latino population in an effort to make it a Latino opportunity district. It also moved the city of Como, which is predominantly African-American, out of the district. When Como residents and their Texas House representative objected, the Legislature moved Como back. But that decreased the Latino population, so the Legislature moved more Latinos into the district. Texas argues that its use of race as the predominant factor in HD90’s design was permissible because it had “good reasons to believe” that this was necessary to satisfy §2, Bethune-Hill, 580 U. S., at ___. But it is the State’s burden to prove narrow tailoring, and Texas did not do so on the record here.
Justices Thomas and Gorsuch questioned whether the Voting Rights Act applies to redistricting at all as part of their concurrence in this opinion. While their views do not necessarily act as a precedent on later cases, it’s a warning shot that the Supreme Court views the judiciary’s role in outcome-based redistricting challenges as becoming more limited in the future. With that in mind, don’t expect much support in the courts for future gerrymandering challenges on the basis of underperformance of political parties.