RealClearPolitics | Esenberg: Why the Supreme Court Punted in Redistricting Case
In the eagerly awaited redistricting case, Gill v. Whitford, the United States Supreme Court vacated a lower court ruling directing the Wisconsin legislature to redraw Assembly district maps that were alleged to have been gerrymandered to favor Republicans. The court did not accept the plaintiffs’ claim, finding that they seemed to lack standing (i.e. they had not demonstrated the particularized individual injury that is required to bring litigation in a federal court). The court did not dismiss the case but remanded it to give the plaintiffs an opportunity to show that they have suffered such an individualized harm, i.e., that their own districts were drawn in a way that diluted their vote.
Perhaps more importantly the court did not attempt to create a new, arbitrary standard or doctrine that could be used to dictate how states draw maps. Such a decision would have disenfranchised voters in every state and dealt a serious blow to states’ rights. Fortunately, the court did not go that route.In a sense, it is fair to say that the justices’ punted. But that punt may well have pinned the plaintiffs deep inside their own territory. Here’s the problem. The plaintiffs claim in Gill focused on the statewide outcome of elections conducted under the challenged maps. The problem was not that the districts are oddly shaped or violate traditional redistricting principles (they don’t) but that the lines had been manipulated in a way to “pack” and “crack” Democrats in more or less subtle ways, so the electoral outcomes exhibited “partisan asymmetry.” Put simply, the percentage of seats won by Democrats significantly lagged behind the percentage of the aggregate votes for Democratic Assembly candidates. This caused Judge William Griesbach, who dissented from a lower court decision finding that the maps were an unconstitutional partisan gerrymander, to complain that his colleagues found a “gerrymandering without a gerrymandering.”