Justice Kagan is Obi Wan Kenobi

*Charles recently served as a panelist on the Making Census of the Population and Redistricting session at ACS's National Convention. 

The wait is over. The Supreme Court has finally decided arguably the most anticipated Supreme Court decision argued this term, Gill v. Whitford, the partisan gerrymandering case arising out of Wisconsin. However, to call the Court’s opinion in Gill a decision is misleading in this context.  The Court did not even decide the threshold question raised by the case, which is whether partisan gerrymandering claims are justiciable and did not come close to deciding the merits, the constitutionality of partisan gerrymandering claims. It’s hard to believe that we waited this long for this. (And the Court’s decision in the Maryland gerrymandering case, Benisek v. Lamone, affirming the district court’s decision to deny the plaintiffs’ motion for a preliminary injunction is barely worth mentioning). But as it turns out, the story here is not Justice Roberts who authored the majority opinion but Justice Kagan who penned a concurrence.

The opinion by Chief Justice John Roberts concluded that the lower court did not have jurisdiction to hear the plaintiffs’ claims because the plaintiffs did not prove they had standing to bring these claim, as required by Article III. With the exception of the portion of the opinion remanding the case back down to the district court, which Justices Thomas and Gorsuch did not join, Chief Justice Roberts wrote for a unanimous court. The Court reaffirmed its prior rhetoric, articulated in the reapportionment and racial gerrymandering cases that voting rights claims are “individual” claims and “personal in nature.” That is, when a plaintiff alleges a claim of vote dilution, whether based on malapportionment, racial vote dilution, or partisan gerrymandering, the plaintiff must show that the lines drawn by the government disadvantaged her as a voter by diluting her vote. The Court then concluded that that the type of partisan gerrymandering claim advanced by the plaintiffs is a district-based claim and not a statewide claim. The Court explicitly rejected the invitation to frame the constitutional harm of partisan gerrymandering as the mal-composition of the legislature. Instead, the Court framed the harm as a voting rights harm, the debasement of a putative plaintiff’s vote for a particular representative. To show standing in a vote dilution claim, Chief Justice Roberts reasoned, a plaintiff must show that she has been injured by being placed in a specific district, which resulted in the debasement or dilution of her vote.

Those of us who believe that the Court should have decided these cases on the merits and in favor of the plaintiffs are understandably disappointed. Moreover, as many legal academics have explained in law review articles that perhaps the justices did not read and perhaps they should have read, the distinction between individual rights and group rights in the voting rights domain is incoherent. In contrast to vote denial claims, vote dilution claims cannot be understood except in group terms. It is the group that provides the necessary baseline for comparison. Political power is exercised through association or in concert with others, not simply as a matter of individual expression. This is particularly so in the context of redistricting where legislators are not moving individual voters but groups of voters inside or outside of legislative districts. In designing electoral districts, legislators are keenly aware that they are apportioning political power. A redistricting process is completely agnostic with respect to individual voters but intimately familiar with census tracts, political, racial, and other group identities.

Notwithstanding the outcome and incoherent distinction that the Court draws between individuals and groups for standing purposes, we can glean some insights from Gill’s narrow and technical opinion. First, all is not lost. The Court could have dismissed the case on standing grounds. Instead, though Justices Thomas and Gorsuch did not join in this part of the Chief’s opinion, seven justices agreed to give these plaintiffs another bite at the apple. Second, opponents of partisan gerrymandering have not yet convinced a majority of the Court that partisan gerrymandering is a problem that ought to be solved by courts. In fact, Chief Justice Roberts explicitly refused to be the country’s Obi Wan Kenobi. Noting the plaintiffs’ plea for the Court to resolve the problem of partisan gerrymandering because it is the only institution capable of doing so, Chief Justice Roberts responded by quoting a line from a prior opinion by Justice Kennedy: “Failure of political will does not justify unconstitutional remedies.” Presumably this is why Justice Kagan felt the need to take up the cause in her concurrence where she rehearsed the harm caused by partisan gerrymandering and stated pellucidly, for perhaps Justice Kennedy or the maybe even the Chief, that “Courts have a critical role to play in curbing partisan gerrymandering.”

Third, plaintiffs must be careful in their use of social science in this domain. And while we are talking about social science evidence, it is clear the efficiency gap, the theory of partisan asymmetry using wasted votes as a measure of vote dilution that the district court relied upon in Gill, is no longer viable in these cases. Fourth, the majority was very clear that it is interested in legal standards and legal rights. As such plaintiffs would be wise to use the racial vote dilution and malapportionment cases as guides for articulating the partisan vote dilution claims, if the plaintiffs insist on framing these claims as partisan vote dilution claims.

Sixth, plaintiffs should heed the pleas of Justice Kagan who seems to be begging the plaintiffs in these cases to frame their claims as First Amendment claims and not, primarily, as vote dilution claims. In her concurring opinion, Justice Kagan points out how plaintiffs can demonstrate standing if they frame their claims as vote dilution claims. But she also notes, if one is reading carefully, why that is the harder path.  She seems to hint not only that the First Amendment frame would find a more hospitable reception in Justice Kennedy, but also why standing is easier to show for First Amendment associational claims.  She understands that showing standing district-by-district will make these cases extremely difficult. She both warns the plaintiffs of that fact and instructs them that they can bring statewide claims, which are easier and which can also include institutional plaintiffs such as political parties, if they bring associational claims. (There is more to be said about this than can be said here. I explore these issues in greater depth in a forthcoming article in the Harvard Law Review with my colleague Professor Luis Fuentes-Rohwer.)

Finally, the current popular narrative about Gill is that the Court punted on the issue of partisan gerrymandering. In my view that is the wrong way of looking at the outcome. The Court did not punt, the Court is at a stalemate. Because of this stalemate, plaintiffs challenging partisan gerrymandering claims seem to have been given a reprieve to take one last shot. And if they don’t want to throw away their shot, they would be wise to follow the path laid out for them by Justice Kagan, as she’s their only hope.

Democracy and Elections, Redistricting