The meaning of a simple Supreme Court order

That is the latest case to reach the Supreme Court seeking to persuade the Justices to do something about partisan gerrymandering – the drawing of election district lines to favor one political party’s candidates over the other’s.  That effort – frustrated, so far — has been going on for more than three decades.

In that span of time, there has been a complete turnover of the court’s membership.  Not one of the nine Justices who were on the bench for a widely-split 1985 decision in an Indiana redistricting case confronting that issue remains on the court today.

Still, a way to deal with the partisan gerrymandering issue seems to elude each new group of Justices.  Although no majority has ever flatly barred constitutional challenges to such partisanship, no majority has never embraced a standard for judging such a challenge.

In recent years, the Benisek case been focusing on that question and it has not been, in fact, an obscure test case.  Under different names, it has been before the court twice before in back-to-back lawsuits over the 2011 redistricting map for electing the eight Maryland members of the U.S. House of Representatives – a map giving the Democrats a 7-to-1 control of the delegation.

And the last time the court dealt with that case, the Justices gave it a strong boost for taking a potentially useful approach to ruling on the constitutionality of partisan gerrymandering.

But that promise failed, at least temporarily, on Wednesday, when the court refused to move up the case on its schedule for earlier review than otherwise could happen.  Instead, the court will keep its focus on a quite different case on the issue – the case of Gill v. Whitford, testing maps for the Wisconsin state legislature, and now set for hearing on October 2.

Was the simple order side-tracking of the Benisek case a mere matter of scheduling?  Perhaps not.  Here is what that might mean:

First, the court may not be able to decide anything in the current term on partisan gerrymandering, because of procedural and theoretical problems in the Gill case from Wisconsin.

Second, the court may decide the Gill case on a technical issue that has little direct bearing on the validity of partisan gerrymanders.

Third, the nation’s deep partisan gridlock – blamed, in no small part, on partisan gerrymandering – will likely continue and may even deepen without any sign of a check imposed by the Supreme Court on gerrymandering.

Fourth, the 2018 elections for Congress and state legislatures could be run – as in Maryland –using election district maps that are the result of challenged partisan maneuvering that will not yet have been fully tested in court.

Fifth, the postponement of a constitutional reckoning on partisan gerrymandering could mean that the court’s membership may change next year, perhaps having a profound influence on how the court reacts to that issue.

Finally, in the meantime, the Benisek case might continue in limbo over the next year, and could even lose its significance altogether because time might simply run out on it before redistricting begins anew around the nation after the 2020 Census.

All of these potential effects of Wednesday’s order in the Maryland case could be traced to these realities:

First, partisan gerrymandering, if judged under the Constitution, could probably be analyzed only under the equal protection guarantees of the Fourteenth Amendment or under the free-expression or free-political-association promises of the First Amendment.

Second, the court over the years has repeatedly turned aside such challenges based on equal-protection arguments, but has never confronted First Amendment political allegiance arguments.

Third, the current court is apparently divided very deeply over how it might address partisan gerrymandering, and it appears that Justice Anthony M. Kennedy is the only member likely to swing one way or the other – as he has done on the issue in the past.

Fourth, the Gill case is largely focused on equal-protection principles, while the Benisek case is entirely about political rights under the First Amendment.  The court, in fact, recognized that potential in the Maryland case in December 2015, when it sent that case back to a lower federal court for a trial after settling a procedural question about where that trial would be held.

Fifth, the notion that the First Amendment might be the better basis for a challenge to partisan gerrymandering comes directly, in fact, from Justice Kennedy’s past statements keeping live the prospect of a partisan gerrymander challenge.  He will be on the court to hear the Gill case next month, but there are recurring rumors that he would retire at the end of this coming term, giving President Trump the chance to name a new conservative Justice (as the President did with Justice Neil M. Gorsuch).

Aside from the probability that a First Amendment challenge might fare better than one based on equality principles, the Gill has some vulnerabilities that are not – or at least may not – be present in the Benisek case.

Two issues that Wisconsin state officials have raised in that case are whether a redistricting plan can ever be challenged on a statewide basis, rather than district-by-district, and whether those who brought the statewide challenge in that state had any legal right (“standing”) to do so.

Either one of those could give the Supreme Court pause, because each of those goes to the very basis for court authority to decide that case.  (In fact, the court may have had some of those potential obstacles in mind when it accepted the Wisconsin case for review because it also postponed the issue of its jurisdiction to decide until the case is heard.)

Even if the court never reaches the issue of whether a partisan gerrymander can be challenged on the theory used in the Gill case, it could simply be dispatched on one of those procedural issues.

The Wisconsin case has been a statewide case from the outset, and it was brought by voters who reside only in a few districts, of course, who claim they were impacted by the statewide effect of the claimed gerrymander.  By contrast, the Maryland case is only about the flipping of the state’s Sixth Congressional District from Republican dominance to Democratic dominance, and the challengers were voters who lived in the district before the switch.

In another contrast between the two cases, only the Wisconsin case asks the Justice to consider embracing a quite novel theory of gerrymandering.  It is based in considerable part upon a mathematically-derived concept of “voter symmetry” among districts, which depends upon recognizing that some votes are “wasted” – a concept that might be disturbing to Justices thinking about assuring that everyone’s vote is supposed to count.

“Voter symmetry” is a concept that may not sound to the Justices much like a traditional theory of political representation, and Justice Kennedy has said in the past that he might only embrace a First Amendment challenge to partisan gerrymandering if it had roots in parliamentary history.

The Maryland case has been focused from its outset on the concept of “vote dilution” – the idea that it is illegal to reduce the political effectiveness of a voter’s rights by official action that makes it less likely of a fair chance to choose a preferred candidate.   The courts, including the Supreme Court, are entirely familiar with that idea, from decades of deciding cases under the federal voting rights laws that protect against dilution.

Another part of the Wisconsin officials’ challenge to the lower court ruling in their case is that the decision was based upon a formula that was crafted by the court in the course of its opinion, leading state officials to complain to the Supreme Court that they should have been given a chance to contest that beforehand.  They have asked that the case be sent back for just such a challenge.

The Maryland case has some of its own vulnerabilities, and those might have played some role in the Supreme Court’s decision to sidetrack it for the time being.  The Benisek case has yet to go to a trial, reaching the court only on an appeal of the issue of whether the congressional map should have been blocked temporarily pending the trial.

Maryland state officials, in opposing early Supreme Court consideration of that case, also argued that the voters contesting the Sixth District had not shown any sense of urgency in the lower court – a claim protested by the challengers’ lawyers.

Even so, the main things working against prompt review of the Maryland case probably were that the Wisconsin case had already been accepted, that it was close to ready for hearing, and a hearing was actually set, well ahead of the arrival on the Justices’ docket of the Maryland case.

It now appears that it will be the fate of the Benisek case to simply sit idly on the court’s docket, awaiting the outcome on the Wisconsin dispute, and then either gets accepted for review or is returned to the lower court to apply the Wisconsin decision – if there is such a decision providing new guidance on partisan gerrymandering.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.