Today, the Supreme Court let Wisconsin keep its extremely gerrymandered political map, which gave Republicans 60% of the seats in the state assembly despite having won only 47% of the vote.
More importantly, the Court did so unanimously, saying that the plaintiffs in the case had no standing to sue Wisconsin at all, because they didn’t prove any individual harm arising from the map. The case was kicked down to the district court to give them a chance to do so.
Already, this decision is being described as a “punt” but that’s wrong. Actually, it was a score for conservatives, because the Court’s five conservatives made it extremely hard to bring cases like these in the future. It’s more like a field goal.
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Here’s why. The plaintiffs in Gill v. Whitford did a bunch of math to show how slanted the Wisconsin map is overall. The 60% vs. 47% number isn’t enough, because after all, individual politicians attract cross-party voters all the time. So the Gill team cited a new statistic called the “efficiency gap,” which basically measured the difference between fair districts and unfair ones. In the case of Wisconsin, the gap was 7%.
At oral argument, the Court’s conservatives were extremely skeptical of this number, the math that went into it, and the reasoning that 7% is too much but 6% isn’t too much. Infamously, Chief Justice Roberts called this “sociological gobbledgygook.”
In today’s decision, it threw out the math entirely. In fact, the Court said, no one can challenge the map as a whole – individual citizens may only challenge their individual districts, arguing that their individual votes have been diluted.
The trouble is, that will be very hard to do, because the real harm of gerrymandering is in the aggregate, not in the individual. Suppose I live in District 1, which would be 65% Democratic under a normal map, but which is 80% Democratic in a “packed” political map which packs as many Democrats into as few districts as possible. Sure, my vote is not that meaningful, like living in New York or California during a presidential election. But how do I prove that? Is there a magic number at which I’m so diluted that the map is unconstitutional?
Unless there’s a smoking gun – the minutes of a meeting where someone says “Hey, let’s screw over District 1 by adding even more Democrats to it!” – it’s hard to see how I make out that claim. At least the “efficiency gap” had mathematical evidence.
Justice Kagan, in a concurring opinion joined by the court’s three other liberals, tried to paint lipstick on the pig, saying that with enough plaintiffs aggregated together, the entire map could be challenged and redrawn. Moreover, she added, there are other claims besides voter dilution, such as First Amendment claims of free association.
Unusually, the Chief Justice’s opinion specifically dismissed that view, saying that “the opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others. The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other.”
That’s what trash talk sounds like at the Supreme Court.
It also has a point. Justice Kagan’s opinion basically makes two or three hypothetical cases instead of the one that plaintiffs actually brought. It’s a bit like her concurring opinion in Masterpiece Cakeshop, in which she described what the case would have looked like had it not been the case that it was. Not coincidentally, both cases were high-profile battles that ended with a complex legal holding, a conservative substantive victory and a near-unanimous court.
But unlike Masterpiece, which was so narrow as to break no new ground whatsoever, Gill spoke clearly to the several other gerrymandering cases winding their way through the courts – most importantly, two from Maryland and North Carolina. The restrictions are clear: no systemic harms, no statewide relief, no taking account of the overall, cumulative effect of the partisan maps.
Zooming back from the legal details, there are two important takeaways.
First, the conservatives on the Court clearly do not want to decide these cases at all. Partisan gerrymandering, as everyone agrees, has long been a swamp. It seems essentially political – which is to say, none of the courts’ business. That’s even more the case given the Chief Justice’s judicial minimalism, and his perhaps futile wish to keep the Supreme Court out of politics.
Moreover, while everyone agrees that too much partisan gerrymandering is unconstitutional, no one – including Justice Kagan’s concurrence – can really say how much is too much.
Maybe the best football metaphor for Gill v. Whitford isn’t a punt or a field goal, but the kicker throwing in the towel entirely. This field is a mess, the Court acknowledged, and to be honest, we don’t want anything to do with it.
Or in Chief Justice Roberts’s words:
“[This] 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.”
Anyone who thinks this case was a punt or a tie or a deferral needs to reread those lines very carefully.
Finally, with Gill announcing the functional end of judicial review of partisan gerrymandering, the sky is the limit. Gill was as much about computer science as it is about politics. Using Big Data, Wisconsin Republicans were able to create a map that Elbridge Gerry could never have imagined.
Now, they have the Court’s okay – not on the substance, since supposedly overly partisan gerrymandering is still bad, but on the process, because no one can bring a case to challenge it. Whatever limitations still existed on partisan gerrymandering are now toast.
That may be a win for judicial minimalism, and arguably for the constitution’s separation of powers. But coming on the heels of the Court’s decision to allow Ohio’s voter purge to proceed, it’s another loss for small-d democracy, and the right of each person’s vote to matter.
