SCOTUS - "Three Blind Mice" Gerrymandering Cases

Over the last week, the Supreme Court of the United States decided three gerrymandering cases: 1) Gill v. Whitford (June 18, 2018); 2) Benisek v. Lamone (June 18, 2018); and, 3) Abbott v. Perez (June 25, 2018). In all three cases for the most part, SCOTUS punted on the issue of gerrymandering or failed to see any evidence of improper gerrymandering, thus the reference to the nursery rhyme in the title.

Gill v. Whitford

Gill involved a challenge to the Wisconsin partisan gerrymandering. In 2011, the Republican-controlled legislature developed a redistricting plan designed to ensure that Republicans would continue to pick up seats in the State legislature over the next several election cycles. Challengers claimed that as a result of the redistricting plan, their votes were wasted. The District Court ruled twice that the redistricting plan was invalid based on the efficiency gap measure. The District Court had developed a three-prong test assessing whether the redistricting plan was invalid:

"(1) [was] intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds."

By a 2-1 vote, the District Court found the prongs had been met and ordered the state to redo its districts by 2017. The state appealed to the Supreme Court of the United States.

In a unanimous decision written by Chief Justice John Roberts, the SCOTUS basically "punted" on the issue, sending it back to the District Court on the basis that the plaintiffs had failed to demonstrate Article III standing. (In courts, a plaintiff must have standing- an injury in fact and a causal connection.) The case was remanded to permit the plaintiffs to be able to demonstrate how they have standing. The efficiency gap is a model developed to show how votes are wasted across a state. The District Court had found that votes were indeed wasted and that the redistricting was intended to ensure that Republicans would always hold more than 50% of the state legislature seats.

Benisek v. Lamone

The SCOTUS granted a second gerrymandering case to be argued before it while it was deliberating Gill. Benisek involved the gerrymandering of a district in Maryland in 2011 by Democrats that traditionally had strong Republican voters. The case had been rejected by federal district and appellate courts previously, and the SCOTUS had remanded the case. The plaintiffs in the case in 2016 during its retrial had asked the Court of Appeals to enjoin the use of the 2011 district map for the 2018 elections. The court denied the injunction. In a per curiam opinion, the SCOTUS found the appellate court had not abused its discretion, but refused to rule on the actual merits of partisan gerrymandering. A second "punt" by the SCOTUS.

Abbott v. Perez

The third case in the "Three Blind Mice" trio is perhaps the most potentially damaging to future arguments of gerrymandering grievances. Abbott involved questions of racial gerrymandering and the effects of the redistricting after the 2010 Census. Four districts were alleged to have been racially gerrymandered. In a 5-4 decision along party lines, the Supreme Court held that three of the four challenged districts were not racially gerrymandered, finding the District Court had erred. Only one district, Texas House District 90, was found to have been "racially gerrymandered" and remanded the case to address and correct the racial gerrymandering.

The fact pattern and timeline in this case is complex. The original maps drawn in 2011 were challenged and then changed based on court proceedings, the new maps went through the legislature, and so in the majority opinion, Justice Samuel Alito found that the plaintiffs, in order to succeed on the merits, needed to prove that the Texas legislature of 2013 “acted in bad faith and engaged in intentional discrimination.” According to Justice Alito, the record did not show such intentional conduct by the legislature, and thus must fail.

In a brief concurring opinion by Justice Clarence Thomas, with Justice Neil Gorsuch concurring, Justice Thomas wrote:

"I adhere to my view that §2 of the Voting Rights Act of 1965 does not apply to redistricting. See Cooper v. Harris, 581 U. S. ___, ___ (2017) (concurring opinion) (slip op., at 1) (citing Holder v. Hall, 512 U. S. 874, 922–923 (1994) (THOMAS, J., concurring in judgment)). Thus, §2 cannot provide a basis for invalidating any district, and it cannot provide a justification for the racial gerrymander in House District 90. Because the Court correctly applies our precedents and reaches the same conclusion, I join its opinion in full."

Section 2 prohibits voting practices or procedures that discriminate on the basis of race, color, or membership in one of the language minority groups and traditionally has been read to prohibit any form of voting discrimination.

Associate Justice Sonia Sotomayor issued a scathing dissent, asserting that the majority “does great damage to that right of equal opportunity” when it “refuses its enforcement” and burdens minorities in their guaranteed rights to vote.

Conclusion

In this trio of gerrymandering cases, the Court appears to be reluctant to enter the "gerrymandering thicket," punting in the first two cases and apparently turning a blind eye to racial gerrymandering in the third case. Perhaps Chief Justice Roberts signaled how the Court would punt during oral arguments in Gill when he stated to Paul Smith, arguing for the challengers:

“We will have to decide in every case whether the Democrats win or the Republicans win. So it’s going to be a problem here across the board. And if you’re the intelligent man on the street and the court issues a decision, and let’s say, OK, the Democrats win, and that person will say, ‘Well, why did the Democrats win?’ ” 

So, perhaps in the end, when it comes to gerrymandering, like the "Three Blind Mice," the adage "justice is blind" to gerrymandering holds true. One is hard pressed to think of the redistricting plan that the current SCOTUS would find unacceptable, especially given the remarks of Chief Justice Roberts noted above.