As court watchers and voting rights organizations alike eagerly await a partisan gerrymandering decision from the U.S. Supreme Court, the Brennan Center for Justice is offering a preview of what could happen.
Justices heard arguments in March addressing three challenges to congressional maps — two to the 2016 GOP-drawn map in North Carolina and one to a Democratic-drawn map in Maryland. It’s expected the high court will release an opinion in the next two weeks. A decision could have far-reaching impacts for map-making processes across the nation.
The Brennan Center has advocated in its court filings regarding the cases for justices to rule that extreme partisan gerrymandering is unconstitutional, set out a clear legal standard for determining when a map is unconstitutional, and strike down North Carolina and Maryland’s redistricting plans.
Tom Wolf, counsel with the Brennan Center’s Democracy Program, said though that’s not the only way the cases could turn out — there are many potential outcomes.
But that is not the only way these cases could turn out. In fact, there are many potential outcomes. Here are five of the more likely ones and what they could mean for the future of fair maps, per Wolf:
Scenario 1: A majority of the court endorses one of the legal standards that plaintiffs have offered and strikes down at least one map.
In this scenario, the court would rule, first, that one of the legal standards that the plaintiffs, on behalf of voters, used to challenge their state’s map is the right one and, second, that at least one of the maps at issue is unconstitutional. This would be the fastest route to relief for voters: any map that the court strikes down will be sent off to the legislature to be redrawn, with the resulting map potentially in place well ahead of the next election — the 2020 primaries. Any map the court doesn’t strike could be sent back down to the trial court for more work. That case would still have a chance for more Supreme Court review before 2020. But the time window would be narrow, requiring the case to move significantly faster than is normal.
Scenario 2: A majority of the court endorses a legal standard closely tied to the facts of one of the two cases and strikes down that state’s map.
In this scenario, the court would announce a new legal standard that is closely tied to the egregious facts of one of the cases. For instance, the justices could rule in the North Carolina case that a constitutional violation occurs when (a) the mapmakers expressly intended to create and entrench a seat advantage that was statistically highly unlikely to achieve accidentally, and (b) succeeded in doing so. Under this scenario, the case that matches these facts would end with a win for voters and a new map drawn in time for 2020. The court could send the other case back down for more fact-development work in the trial court, again with a narrow window for Supreme Court review in the fall.
Scenario 3: A majority of the court announces a legal standard that we haven’t yet seen and sends both cases back down for more work in the trial courts.
In this scenario, the court would announce a legal standard that departs drastically from the standards that are already in play, perhaps making relevant certain legal issues and facts that the courts and the challengers hadn’t previously considered. Both cases would go back down to the trial courts for more fact development and legal briefing in light of this new standard, with a narrow opportunity for the justices to weigh in again next term.
Scenario 4: A majority of the court neither agrees on a legal standard, nor decides to foreclose federal courts’ consideration of future partisan gerrymandering claims.
In this scenario, the court would essentially maintain the position it has held since it issued its 2004 opinion Vieth v. Jubelirer. There would be neither enough votes to set a legal standard, nor enough to end federal partisan gerrymandering litigation altogether. The court would dismiss both the North Carolina and Maryland cases. This ruling would represent another punt on the major constitutional issue and potentially delay any further litigation until after the next round of mapping is completed in 2021.
Scenario 5: A majority of the court declares partisan gerrymandering claims can’t be heard in federal courts.
In this scenario, the court would rule that federal courts are not capable of deciding partisan gerrymandering claims and thus should not hear them — in legal parlance, declaring these claims “non-justiciable.” The court would undo the North Carolina and Maryland voters’ victories in the trial courts and terminate their cases. This ruling would result in the federal courts being shut completely to these kinds of claims. The court came close to a ruling of this kind in Vieth, with four justices, led by Justice [Antonin] Scalia, contending that partisan gerrymandering claims were non-justiciable.
Bonus: Michigan, Ohio, and Wisconsin
North Carolina and Maryland aren’t the only partisan gerrymandering cases in the federal courts right now. There are also challenges in Michigan and Ohio — which both resulted in wins for voters after trials — as well as Wisconsin — which is set for trial in July. The Supreme Court’s opinions in North Carolina and Maryland will be the new law of the land and will govern all three of the remaining cases.
What happens to those cases will depend on the court’s ruling. If the court sets a legal standard for partisan gerrymandering cases, the Justices could well send Michigan and Ohio back to the trial courts for more proceedings under that standard. And the standard would shape the Wisconsin case by determining what the plaintiffs would have to show at trial to win. If the court closes its doors to gerrymandering claims, all three of these cases would be dismissed and the voters’ recent victories in Michigan and Ohio undone.