Court watchers across the country were holding their breath this morning for a U.S. Supreme Court opinion on partisan gerrymandering that didn’t come.
Justices heard the Wisconsin partisan gerrymandering case, Gil v. Whitford, in October. They heard arguments in a similar case out of Maryland, Benisek v. Lamone, in March. Whatever decision comes from the high court in either case could have an effect on redistricting practices in legislatures across the nation, including in North Carolina.
The court released a couple of opinions this morning, but the Wisconsin and Maryland cases were not among them. The Hill in Washington D.C., though, published an article speculating what the court might do in the two pending partisan gerrymandering cases.
What might the justices do? We see several possible outcomes.
At one end of the spectrum, the court could categorically reject both challenges as “nonjusticiable.” Partisan gerrymandering, they could say, is fundamentally a political matter, not a legal issue for the courts. Four of the nine justices said just that back in 2004, when the court addressed partisan gerrymandering head on.
At the other end of the spectrum, the court could side with the challengers in both cases and endorse both proposed legal tests. Even under this scenario, the challengers will have more work ahead. It is too late to impose new maps for the 2018 election. Instead, the challengers will aim to have compliant maps in place for 2020. This will likely entail further litigation, because the party in power presumably will try to maintain as much of its existing advantage as possible. Another fight looms when the next round of redistricting takes place after the 2020 census.
A mixed result may be the most likely. The justices could turn away one or both cases on procedural grounds. In particular, a majority may hold that the plaintiffs in the Wisconsin case lack legal standing to challenge the entire statewide map. (Reading the tea leaves, court-watchers have deduced that Chief Justice Roberts, who expressed skepticism about plaintiffs’ standing at oral argument, is probably drafting the Wisconsin opinion.)
A final, unsatisfying possibility is that a majority will not coalesce behind any result. That’s what happened in the 2004 gerrymandering case, which is why the issue is back now. If the justices are struggling to find common ground, they might schedule the cases for re-argument this fall. And they could even add a third case to the mix — a challenge to a North Carolina gerrymander that is also teed up for review. Justice Breyer alluded to this re-argument option during oral argument in the Maryland case.
Read the full article here. Monday is the next chance for opinions from the high court.