Demonstrators outside the U.S. Supreme Court on the day of arguments in Gill v. Whitford, Oct. 3, 2017.
(Photo: Diego M. Radzinschi/ALM)

Sidestepping the thorny issue of partisan gerrymandering, the U.S. Supreme Court on Monday turned back a major challenge to Wisconsin’s redistricting plan because the plaintiffs lacked standing.

In a second partisan gerrymander challenge, the unanimous court, in an unsigned opinion, rejected an attempt to change Maryland’s Sixth Congressional District. A group of Republican voters claimed the district had been rigged by the Democratic-controlled Maryland General Assembly to ensure the election of a Democratic member of Congress. They claimed the gerrymander was in retaliation for their political views.

There were no dissenters in the Wisconsin case Gill v. Whitford, which was argued in October.

“It is a case about group political interests, not individual legal rights. But this court is not responsible for vindicating generalized partisan preferences. The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it,” Chief Justice John Roberts Jr. wrote.

Roberts said the court was remanding the dispute to the trial judge “so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes.”

Although agreeing with the court’s judgment, Justices Clarence Thomas and Neil Gorsuch, in a separate concurring opinion, said they would not give the challengers another chance to establish standing, but would have directed the district court to dismiss the case.

Justice Elena Kagan, joined by justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor, also concurred in the decision, but she wrote separately to describe the type of evidence that the challengers could use to establish their gerrymander claim.

“Courts have a critical role to play in curbing partisan gerrymandering,” Kagan wrote. “Indeed, the need for judicial review is at its most urgent in these cases, For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms.”

In the Maryland case, Benisek v. Lamone, the court said the district court’s denial of a motion for a preliminary injunction was not in error even assuming the challengers were likely to prevail on the merits.

“The balance of equities and the public interest tilted against their request for a preliminary injunction,” the court wrote. The justices cited, for example, the challengers’ delay in seeking an injunction, the closeness to the next election and the tight time constraints facing the district court.

Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project, said in a statement Monday:

“The Supreme Court missed an opportunity today to lay down a firm marker as to when partisan gerrymandering is so extreme that it violates the constitutional rights of voters. But the court permitted lawsuits against unfair maps to continue. Cases around the country—including our challenge to Ohio’s gerrymandered congressional map—will remain ongoing to ensure that voters’ voices are heard.”

The Supreme Court’s decision in the Wisconsin case stemmed from a challenge by voters from 11 state legislative districts to the Wisconsin Assembly’s redistricting plan following the 2010 census. In 2012, the first election with the new map in place, Republicans won 60 of 99 Assembly seats with just 48.6 percent of the statewide vote. In the next election, in 2014, the plan resulted in Republicans winning 63 of 99 state Assembly seats with only 52 percent of the vote.

The voters claimed the redistricting plan was an excessive partisan gerrymander—in violation of the First and 14th Amendments—that locked in Republican control of the Assembly for a decade. The Republican-controlled Assembly, they argued, “cracked” and “packed” Democratic voters in order to ensure Republican dominance.

A majority of justices in a 2004 partisan gerrymander challenge from Pennsylvania had concluded that these claims were “nonjusticiable” because there was no manageable test for excessive partisanship. Keenly aware of that ruling, the Wisconsin challengers offered a three-judge federal district court a three-part test. A key part of the test, known as the efficiency gap, was the product of social scientists’ research. The court adopted a modified version of the test and ruled for the challengers.

During high court arguments on Oct. 3, several justices questioned the standing of voters from 11 districts to challenge the entire Assembly map. Wisconsin’s attorney argued that finding standing would favor partisan gerrymander challenges over racial gerrymander claims in which the justices have found standing to challenge the district in which the voter lives.

U.S. Supreme Court Justice Anthony Kennedy appeared to hold the decisive vote. He seemed particularly sympathetic to the First Amendment claim that excessive partisan gerrymandering punishes voters because of their political beliefs. It was Kennedy who in the 2004 partisan gerrymander case, Vieth v. Jubelirer, kept the door open to viewing these cases through the lens of the First Amendment.

At the argument, Roberts worried that regardless of what the justices’ rationale is in deciding whether Republicans or Democrats win these claims, “The intelligent man on the street will say, ‘That’s a bunch of baloney.’ … That is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”

Justice Samuel Alito Jr. was skeptical of the efficiency gap test and suggested the social science was too new for the court to intervene at this point. But Kagan and Sotomayor expressed little difficulty with either the science or the ability to determine excessive partisan gerrymandering.

The challengers’ counsel, Paul Smith of the Campaign Legal Center, told the justices that “these claims are coming” and “You are the only institution that can solve this.” Wisconsin Solicitor General Misha Tseytlin represented the state, and Kirkland & Ellis partner Erin Murphy argued on behalf of the state Senate.

The case attracted a large number of amicus briefs from across the political spectrum, including political parties, campaign reform groups, civil rights organizations and state and federal lawmakers.

In the Maryland case, the challengers argued their First Amendment rights were violated when the state Assembly deliberately targeted and retaliated against voters because of their support for the opposition party,

The Maryland case differed from the Wisconsin case in several ways. The Maryland case challenged a single congressional district; the Wisconsin case involved the entire state legislative map.

Also, the Maryland challengers—Republican voters—urged the justices to adopt the First Amendment as the only manageable standard for judging partisan gerrymanders. The challengers in Wisconsin—Democratic voters—relied on both the First Amendment and the equal protection clause.

The Maryland case came to the court in an early stage—after a three-judge district court denied the challengers’ motion for a preliminary injunction. The Wisconsin challengers won after a full trial before a three-judge district court.

Michael Kimberly, partner in Mayer Brown, represented the Benisek challengers. Maryland Solicitor General Steven Sullivan argued for the state.