- Recent Supreme Court decisions delay a decision on partisan gerrymandering.
- There is a lack of Court clarity on the issue heading into the 2021 redistricting process.
- Our recent report found Michigan’s current districts are likely gerrymandered.
The Supreme Court of the United States ruled on several cases with a significant impact on state and national policy over this term. Some, like the decision in Wayfair allowing states to more easily collect sales tax on online commerce, will have an immediate effect on state policy. The rulings in the two partisan gerrymandering cases will not.
While the Court has traditionally held that partisan gerrymandering is an issue courts can theoretically resolve, there is significant confusion on what, if any, method(s) should be used to identify it. Despite a handful of attempts to devise a test, the Court has refused to accept any metrics offered thus far. While two recent cases attempted to change that, they were both sent back to the lower courts before the Supreme Court could consider their merits.
Gill v. Whitford, a case alleging bias in Wisconsin’s General Assembly maps, was sent back to a lower court to reevaluate after the Court decided the plaintiffs did not have standing to bring the case. In Benisek v. Lamone, which originated in Maryland, the Court agreed with the lower court’s refusal to put an injunction on the state’s congressional districts.
The decisions in Gill and Benisek only delay the Court’s decision on partisan gerrymandering; the justices signaled that they expect to rule on a case in the future. In remanding Gill , an unusual move,; Chief Justice Roberts explained the Court’s decision:
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. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.
The Court explicitly avoided discussing the merits of the case, and because the case was remanded, Gill could very well end up back at the Supreme Court.
This does, however, leave several questions unanswered as we move towards the 2020 census. Rather than ruling one way or another, which could have provided some guidance for redistricting bodies nationally, the justices did not clarify how lower courts might go about resolving partisan gerrymandering, or if they are able to at all. While there is still time for the Court to hear another redistricting case before all 50 states redraw their districts in 2021, there is now a larger chance that the next districts will be drawn without a Court resolution.
This is of particular importance for Michigan. In our recent report, Quantifying the Level of Gerrymandering in Michigan, we found that a number of metrics show evidence that the state has a gerrymandering problem. While no individual metric has been accepted as a standard by the court, several show that Michigan’s districts have created a consistent partisan bias. With the Supreme Court sidestepping the issue, Michiganders will have to decide for themselves whether changes are needed.