The Ballot Bulletin: July 2018

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In The Ballot Bulletin, Ballotpedia tracks developments in election policy at the federal, state, and local levels. Each issue will include an in-depth feature such as an interview or event timeline. We will also discuss recent prominent events relating to electoral and primary systems, redistricting, and voting provisions.

This month's edition: Last month, the Supreme Court of the United States issued rulings in two cases involving allegations of partisan gerrymandering. The high court made no definitive statement on the viability of such claims. We spoke with five election policy experts to get their takes on what might come next, particularly in light of Justice Anthony Kennedy's retirement. We'll also bring you up to speed on redistricting suits in Connecticut, North Carolina, Texas, and Virginia.

SCOTUS issues rulings in Gill v. Whitford and Benisek v. Lamone, declines to weigh in on whether maps can be struck down as partisan gerrymanders

• What's the story? On June 18, the Supreme Court of the United States issued rulings in Gill v. Whitford and Benisek v. Lamone, two partisan gerrymandering challenges. In both rulings, the court did not directly address whether a district map can be struck down as unconstitutional for giving one political party advantage over another. Instead, these rulings were made on standing grounds (as in Gill) or procedural grounds (as in Benisek).
  • Gill v. Whitford: The court ruled unanimously that the plaintiffs — 12 Wisconsin Democrats who alleged that Wisconsin's state legislative district plan had been subject to an unconstitutional partisan gerrymander in violation of the First and Fourteenth Amendments — had failed to demonstrate standing under Article III of the United States Constitution to bring a complaint. Chief Justice John Roberts penned the majority opinion, in which Associate Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan joined. Kagan filed a concurrence, which was joined by Ginsburg, Breyer, and Sotomayor. Associate Justice Clarence Thomas filed an opinion, joined by Associate Justice Neil Gorsuch, that concurred in part with the majority opinion and the court's judgment.
    • Roberts noted that the court's opinion did not address the question of whether partisan gerrymandering claims are justiciable: "In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff's claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. ... We therefore remand the case to the District Court 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 voters. We express no views on the merits of the plaintiffs' case."
  • Benisek v. Lamone: The court issued a per curiam (i.e., a unanimous and unsigned) opinion affirming a district court decision that had denied the plaintiffs' request for a preliminary injunction barring enforcement of a challenged congressional district map in Maryland. The court determined that the plaintiffs —seven Maryland Republicans who alleged that lawmakers had altered the boundaries of the state's Sixth Congressional District to dilute the impact of Republican voters — failed to demonstrate that they would suffer irreparable harm if an injunction were not granted.
• What comes next? On June 27, Associate Justice Anthony Kennedy announced his retirement from the court, leaving the fate of future potential partisan gerrymandering claims uncertain. We spoke with five election policy experts, from different sides of the debate, to get their insights on the subject.
  • Logan Churchwell: Kennedy's exit may not yield a great shift in precedent, given his own repeated hesitance in conjunction with majorities to wade into such partisan squabbles dressed as voting rights grievances. Under Kennedy, the Court maintained a high bar to bring a case and it is unlikely to change that in the years ahead. Map-making is the business of the states and their deliberative bodies on the subject. The recent decisions maintain well the federalist balance of power that our Constitution requires.
    • Logan Churchwell is Communications and Research Director of the Public Interest Legal Foundation, which is a law firm that "exists to assist states and others to aid in the cause of election integrity and fight against lawlessness in American elections." The Public Interest Legal Foundation filed an amicus brief in Gill v. Whitford arguing that striking down a district map as a partisan gerrymander would infringe upon the constitutional right of the states to manage their own elections.
  • Edward Foley: The constitutional case against partisan gerrymanders is multi-faceted, involving much more than the particular theory advanced in the trial of Gill. Not only has the rapidly evolving social science on this topic developed new statistical metrics for identifying excessively partisan redistricting, so that it is unnecessary to rely upon the so-called “efficiency gap” metric that troubled some of the Justices in Gill. Amicus briefs, law review articles, and even Justice Kagan’s concurrence in Gill itself have pointed to a myriad of new methods of constitutional interpretation that would render excessive gerrymanders as invalid. These new methods include reliance upon the Elections Clause of Article I, § 4 as well as further development of the First Amendment theory that Justice Kennedy had called for in Vieth v. Jubelirer, but which did not materialize in Gill. Although it is no sure thing that Chief Justice Roberts ultimately will agree that there exists a judicially manageable standard for invalidating partisan gerrymanders, the fact that he did not categorically rule out the idea—as Justice Scalia would have done in Vieth—permits the development of these claims to continue. Justice Kennedy would have retired sometime soon if not this year, and thus it was always necessary for plaintiffs to articulate a theory that would satisfy Chief Justice Roberts and not just Justice Kennedy. Going forward, plaintiffs no longer will be distracted by their effort to convince Kennedy, but instead can concentrate their energies where it has mattered most all along: on persuading Chief Justice Roberts that the Constitution compels the Court to intervene in a political dispute that he (among other Justices) understandably would prefer to avoid.
    • Edward Foley is the Ebersold Chair in Constitutional Law at the Moritz College of Law at The Ohio State University. His book Ballot Ballots: The History of Disputed Elections in the United States was awarded Finalist for the 2016 David J. Langum, Sr. Prize in American Legal History.
  • David O'Brien: When the Court issued the decision in Gill v. Whitford, we thought it was another punt. Perhaps the Court was waiting for a case with a different set of facts or parties. Perhaps Justice Kennedy was still waiting for the right test to come along. As went Vieth, so went Gill. In light of Justice Kennedy's retirement announcement, however, Gill now seems less like a punt than Kennedy's decision to let his successor be the one to take any hope for federal judicial intervention in partisan gerrymandering behind the woodshed. It's very unlikely that his replacement (whoever it might be) will be inclined to view partisan gerrymandering as a justiciable issue. The federal judiciary, in short, will not be coming to the rescue. For the near future, the most promising ways forward are in state court litigation, using claims brought under state constitutions, as in the Pennsylvania Supreme Court's recent decision in League of Women Voters of Pennsylvania v. Commonwealth of Pennsylvania, and in statewide ballot measures to create independent redistricting commissions, such as the one going on the ballot in Michigan this November. Not every state's constitution has provisions like those in Pennsylvania's, however, and not every state allows citizen-initiated ballot measures like Michigan does, so any progress will be piecemeal. If Americans are serious about ending partisan gerrymandering, we need to start considering voting methods that aren't so uniquely vulnerable to it as our current system of first-past-the-post voting in single-winner districts is. The Fair Representation Act (H.R. 3057), which would effectively end gerrymandering of U.S. House districts through a combination of ranked choice voting in multi-winner districts (also known as the 'single transferable vote') and independent districting commissions, is a great place to start.
    • David O'Brien is a Legal Fellow at FairVote, a nonprofit organization whose mission is to advocate for "electoral reforms that give voters greater choice, a stronger voice, and a representative democracy that works for all Americans." FairVote filed an amicus brief in Gill v. Whitford arguing in favor of judicial intervention in partisan gerrymandering claims.
  • Walter Olson: "Answer cloudy, try again," said the Magic Eight-Ball. This year's Supreme Court result is not quite so unclear as that, since the ruling in Gill v. Whitford did shed light on some standing issues. The replacement of Anthony Kennedy as associate justice will probably deter most litigants associated with liberal legal movements from going back up to the high court any time soon, lest they provoke a precedent that is outright unfavorable. Will it deter other litigants, such as those challenging a Democratic gerrymander like that in Maryland? It's anyone's guess. Focus will now shift to litigation theories that invoke state constitutions, like the one in Pennsylvania that prevailed this spring. Beyond that, the fading (for now) of the allure of a near-term comprehensive solution from the Supreme Court will and should energize legislative and political movements for reform. One neglected avenue: the U.S. Constitution provides in its Elections Clause that Congress itself may prescribe standards to the state legislatures for how they hold elections to the U.S. House of Representatives, an authority it has previously used for such purposes as requiring states to hold districted rather than at-large elections to the House. A movement for federal anti-gerrymandering standards might fall on receptive ears should Democrats retake Congress down the road -- or should Republicans wish to get out in front of this popular reform cause.
    • Walter Olson is a Senior Fellow at the Cato Institute, a public policy research organization "dedicated to the principles of individual liberty, limited government, free markets and peace." Olson is the Co-Chair of Gov. Larry Hogan's Maryland Redistricting Reform Commission.
  • Peter Schuck: It seems most unlikely, especially with Justice Kennedy's retirement and eventual replacement by a Trump nominee, that a majority of the Court will come up with a standard for reviewing partisan gerrymandering that it will deem judicially manageable. They will leave it up to the deeply partisan political process -- messy, unfair, and unrepresentative as it often is.
    • Peter Schuck is the Simeon E. Baldwin Professor Emeritus of Law at Yale Law School. HIs most recent book, One Nation Undecided: Clear Thinking About Five Hard Issues That Divide Us, was published in 2017 by the Princeton University Press.

Redistricting round-up: Map challenges continue in Connecticut, North Carolina, Texas, and Virginia

• Connecticut: On June 28, the NAACP and five Connecticut voters filed suit in federal district court, alleging that the state legislative district plan violates the Amendment XIV, United States Constitution by counting prison inmates as residents of their prison facilities instead of their pre-incarceration residences for redistricting purposes. In their initial court filing, submitted to the United States District Court for the District of Connecticut, the plaintiffs contended that this practice "impermissibly inflates the voting strength of predominantly white voters residing in certain Connecticut House and Senate districts, as compared to the voting strength of persons residing in all other House and Districts." The plaintiffs further alleged that "by counting prisoners in the districts where they are imprisoned instead of their pre-incarceration residences, prison gerrymandering dilutes the votes of residents in their home communities, who are disproportionately African-American and Latino, as compared to residents in other communities and districts." Four states count prison inmates as residents of their pre-incarceration districts as opposed to their incarceration districts: California, Delaware, Maryland, and New York. The remaining states (including Connecticut) count prison inmates as residents of the districts in which they are incarcerated.
• North Carolina:
  • Congressional maps: On June 25, the Supreme Court of the United States remanded Common Cause v. Rucho, a case involving alleged partisan gerrymandering of the state's congressional district plan, to a district court for further consideration in light of the high court's ruling in Gill v. Whitford. The district court asked the parties to the suit to file briefs by July 11, 2018. The district court had ruled in January that the map had been enacted "with intent to subordinate the interests of non-Republican voters." The high court stayed that ruling soon after it was issued, however, leaving the existing maps in place pending resolution of the case.
  • State legislative maps: On June 28, the Supreme Court of the United States issued a per curiam ruling in North Carolina v. Covington, affirming in part and remanding in part a district court decision (i.e., allowing the court's order to stand as it applied to districts in Hoke, Cumberland, Guilford, Sampson, and Wayne counties but overturning the district court's decision as it applied to districts in Wake and Mecklenburg counties). The high court wrote the following in its opinion: "The only injuries [the maps' challengers'] established in this case were that they had been placed in their legislative districts on the basis of race. The District Court's remedial authority was accordingly limited to ensuring that the plaintiffs were relieved of the burden of voting in racially gerrymandering legislative districts. But the District Court's revision of the House districts in Wake and Mecklenburg Counties had nothing to do with that." As a result of the ruling, remedial maps approved by the district court in 2018 will apply to Hoke, Cumberland, Guilford, Sampson, and Wayne counties. Remedial maps approved by the state legislature in 2017 will apply in Wake and Mecklenburg counties.
• Texas: On June 25, 2018, the Supreme Court of the United States issued a 5 to 4 ruling in Abbott v. Perez, upholding the legality of all but one of 11 challenged Texas congressional and state legislative districts that had been struck down as unconstitutional racial gerrymanders by a federal district court. The court's majority found that the district court had applied an improper standard of intent in striking down maps for Congressional District 35 and House Districts 54, 55, 93, 103, 104, and 105. The majority also held that the maps' challengers had failed to satisfy the legal test for proving a violation of Section 2 of the Voting Rights Act in Congressional District 27 and House Districts 32 and 34. The court upheld the district court's finding with respect to House District 90, affirming that the district had been subject to an illegal racial gerrymander.
• Virginia: On June 26, a three-judge panel of the United States District Court for the Eastern District of Virginia ruled 2-1 in Bethune-Hill v. Virginia State Board of Elections that 11 state legislative districts had been subject to racial gerrymandering and needed to be redrawn. The court gave the legislature until October 30, 2018, to draw new district lines. The case was remanded to the district court by the Supreme Court of the United States, which on March 1, 2017, found that the district court employed an improper legal standard in its initial determination that race did not predominate during the drafting process for the challenged district maps.
• What's going on in the rest of the country? The map below identifies states in which redistricting legislation has been introduced in 2018. A darker shade of red indicates a greater number of relevant bills. For full details about redistricting legislation, see this article.

Redistricting legislation as of July 10, 2018

See also

• Election policy on Ballotpedia
• Electoral systems legislation at the state and city levels in the United States, 2018
• Primary systems legislation at the state and city levels in the United States, 2018
• Redistricting legislation at the state and city levels in the United States, 2018
• Federal redistricting legislation in the United States, 2017-2019 (115th Congress)