The Ballot Bulletin: June 18, 2018 — Special edition

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

Special edition: This morning, the Supreme Court of the United States issued its ruling in two partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone. We'll bring you up to speed on the details and provide a sampling of the initial reactions to those decisions.

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? This morning, the Supreme Court of the United States issued rulings in Gill v. Whitford and Benisek v. Lamone, two partisan gerrymandering challenges. In neither of these rulings did the court directly address whether a district map can be struck down as unconstitutional for giving one political party advantage over another. Instead, today's 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 are the reactions? Below is a sampling of initial reactions to the rulings in Gill v. Whitford and Benisek v. Lamone:
  • "The case [Gill v. Whitford] is very much still alive. We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with. When legislators draw voting maps to favor one party over another and to stay in power, voters no longer have a voice in the political process. Extreme partisan gerrymandering is increasingly getting worse – damaging our democracy and eroding voters’ confidence in our system. We will continue advancing efforts, in this case and others as well as through the political process, to end this practice and safeguard every citizen’s fundamental right to vote and have it count." — Paul Smith, vice president of litigation and strategy at Campaign Legal Center (CLC), who argued the case before the court on behalf of the plaintiffs
  • "Here's the problem: the Court made clear that an individual's claim of vote dilution [in Gill v. Whitford] cannot be based on the fact that maps have been drawn in a way that diminishes the statewide prospects for that voter's preferred political party. The majority held that the plaintiffs interest 'in their collective representation in the legislature,' and in influencing the legislature’s overall 'composition and policymaking' does not constitute "an individual and personal injury of the kind required for Article III stand­ing. If that's true, then plaintiffs are going to have to show some constitutional violation in the drawing of their individual district and that harm cannot be inferred from a statewide impact. While Justice Kagan's decision suggests that demonstrating that another set of statewide maps would have resulted in more 'balanced' districts might do the trick, conferring standing on plaintiffs whose districts 'could be' made more competitive, Chief Justice Roberts decision suggests otherwise. The Court punted, but it may have hit the coffin corner." — Rick Esenberg, president and general counsel at the Wisconsin Institute for Law and Liberty, which filed amicus briefs in Gill v. Whitford supporting the constitutionality of the existing maps
  • "Alex Bickel would be proud of SCOTUS in today's gerrymandering decisions. By invoking procedural limits (like standing), the Court is causing a clarification of the merits of the claims plaintiffs are (and potentially will) make, leading to better decisions. Good for democracy." — Ned Foley, Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law at the Ohio State University
  • "Redistricting punt means decisions still possible in 2019. But more delay means more problems. Decision now means guidance for 2021 [without] redrawing [maps]. Decision in 2021 means redrawing 1000s of districts." — Justin Levitt, Professor of Law at Loyola Law School, Los Angeles
• What comes next? As a result of today's rulings, no immediate changes to any district maps are expected. Both cases will return to federal district court for further proceedings. The only remaining redistricting case before the court this term is Abbott v. Perez, a case involving allegations of racial gerrymandering in Texas' congressional and state legislative district maps. A decision is expected before month's end. At this time, there are no redistricting cases on the court's docket for the coming term, although the court is expected to consider a partisan gerrymandering challenge out of North Carolina at its private conference on June 21, 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)