Symposium: Back to the drawing board for political gerrymandering plaintiffs

John Phillippe is chief counsel at the Republican National Committee, which filed an amicus brief in support of the Wisconsin in Gill v. Whitford.

It is difficult to see the Supreme Court’s decisions in Gill v. Whitford and Benisek v. Lamone together as anything but a significant setback for those who would have the courts wade even further into the legislative process of redistricting. Although early commentary suggests that the court “punted” or “sidestepped” the merits of the cases, in actuality the two decisions erected substantive barriers to political gerrymandering claims.

The Gill plaintiffs had hoped to convince the Supreme Court to adopt for the first time a constitutional standard for invalidating redistricting plans based on what they deemed excessive partisanship. Instead, the court unanimously rejected several theories advocated by the plaintiffs and supportive amici, thereby cutting off multiple paths toward a new constitutional doctrine, with significant implications for future plaintiffs.

First among these is that no challenge to a redistricting plan under a vote-dilution theory can even be considered unless the challenge is to the lines of a particular district or districts brought by a voter or voters who live and vote there. General challenges to statewide maps based on vote dilution will not be entertained. Second, because the right to vote is a personal one, no plaintiff may state a claim by alleging that there should be more elected representatives from the plaintiff’s political party in the legislative body from districts other than the plaintiff’s. Third, to the extent there was any doubt, there is no right to proportional representation or partisan symmetry.

The Supreme Court has clearly borrowed from its racial vote-dilution jurisprudence in assessing standing to bring a political gerrymandering challenge. Indeed, as the RNC pointed out in the amicus brief we filed in this case, it would be an odd and unfortunate result if racial vote-dilution claims were to have a more onerous standard than political vote-dilution claims.

Here the Supreme Court has required that that each district challenged must have at least one plaintiff who both resides and votes in the district. This has long been a requirement in other vote-dilution cases and was extended to racial-gerrymandering cases in U.S. v. Hays. In the context of Gill, this is more than a mere procedural requirement. The Gill plaintiffs essentially claimed that their votes were diluted because the votes of other Democrats in other districts were diluted. The court very clearly stated, consistent with long-standing precedent, that the plaintiffs could not establish standing based on third-party rights. In most situations this is a problem that can be solved by adding plaintiffs; however, simply adding plaintiffs from districts in which Democrats claim that their votes were diluted should not create standing here because the court carefully linked the need for a plaintiff in each specific district challenged to the personal nature of the right to vote. This means standing does not exist if the plaintiff is merely claiming that although he can elect the candidate of his choice, his vote is diluted if that candidate is likely to be in a legislature dominated by representatives of another party.

The Supreme Court’s reliance on Lance v. Coffman and Ex parte Levitt are critical to this point. As the court notes, the plaintiffs’ purported legal harm is “not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest ‘in their collective representation in the legislature,’ and in influencing the legislature’s overall ‘composition and policymaking.’” But for Article III standing, this is “‘the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.’” In other words, any vote-dilution claim must be based on the individual vote cast by the voter for his representative and not the overall success of that voter’s party.

Not only did the plaintiffs fail to present evidence that would establish this prerequisite for standing but, to the contrary, the plaintiffs’ theory of the case was fatally flawed on this key point. The Supreme Court’s discussion of vote efficiency-gap analysis and partisan symmetry illustrates this fundamental flaw and how it relates to standing. The court correctly notes that neither of these analyses addresses the effect that gerrymandering has on the votes of particular citizens. Partisan-symmetry metrics measure something else entirely: the effect that a gerrymander has on the fortunes of political parties.

Those political fortunes are measured by deviations from proportionality. Any sort of partisan-symmetry analysis relies in some form on proportional representation. For instance, if a jurisdiction voted 60 percent for Party A and 40 percent for Party B, a 60/40 split of the seats in the legislature would be directly proportional. Any symmetry analysis will create a boundary around that proportional split of the seats that, if exceeded, will, in the mind of the creator of that analysis, prove that the map in question is an unconstitutional political gerrymander. Symmetry analyses vary widely in terms of range, flexibility and complexity. As the Supreme Court clearly realizes when it discusses the efficiency-gap range that the plaintiffs argued should trigger constitutional scrutiny, there will always be a significant degree of arbitrariness. And as the RNC noted in our amicus brief, partisan-symmetry analysis amounts to back-door rough proportionality. As we also noted, efficiency-gap analysis is biased and designed to ignore most Democratic gerrymanders. In dismissing this metric, the court has rejected the inevitable rough proportionality that any partisan-symmetry analysis necessarily imposes.

Partisan-symmetry analysis was the essential innovation in Gill. Plaintiffs hoped it would eliminate the need for the difficult proof described in Davis v. Bandemer, but the Supreme Court easily dismissed partisan-symmetry analysis’s promise “to finally solve the problem of partisan gerrymandering that has confounded the Court for decades.” The plaintiffs now find themselves having to redesign their legal theories. Although this case has not ended the plaintiffs’ and their affiliated groups’ efforts to overturn numerous redistricting maps across the country, it has shown that any political gerrymandering plaintiffs, if successful at all, likely will be incapable of achieving wholesale changes to any redistricting maps.

To the extent potential plaintiffs may yet bring statewide theories of harm and of remedy, Justice Elena Kagan’s concurrence certainly tries to help them get there. But in inviting plaintiffs to bring new theories of partisan gerrymandering to the Supreme Court, her glaring omission of a First Amendment retaliation theory rings ominous for the plaintiffs in Benisek, perhaps indicating that even for the four liberal justices, that theory has no legs. The Benisek plaintiffs rely on such a retaliation theory in challenging a single congressional district in Maryland.

Left unsaid in much of the commentary on these cases over the last year is that any statewide theory of partisan gerrymandering that might even be plausible in the state legislative context would almost surely be a nonstarter with respect to congressional maps. Because voters in any given state elect only a fraction of the 435 members of Congress, the partisan balance of a single state’s congressional delegation is less significant than the composition of its legislature.

So, although their case may be fatally flawed in other respects, the Benisek plaintiffs at least have it right in challenging a single district. But, as the Supreme Court concludes, they got a lot wrong – at least for the purpose of getting a preliminary injunction, highlighting significant cautions for any plaintiff seeking a preliminary injunction in the election context.

First, delay in seeking a preliminary injunction will be weighed against plaintiffs, potentially very significantly, when balancing the equities under the Winter v. Natural Resources Defense Council Inc. analysis. Second, ambiguous legal issues can exacerbate time considerations when determining whether a preliminary injunction would significantly damage the public interest in orderly elections as described Purcell v. Gonzalez. Benisek’s reinforcement of that analysis could be significant in many election cases beyond the redistricting context. Any election law or process that has been in place for a long time could be difficult to enjoin without first obtaining a final judgment in the case. Given the recent determination of many lower courts to forge ahead on unclear legal issues while the Supreme Court considers cases that could provide clarity on those issues, this analysis could prove helpful to those responsible for the conduct of elections. Because of an unwillingness to wait for the Supreme Court to clarify important legal issues, lower courts have forced the Supreme Court to issue a significant number of stays in recent election law cases. Clearly the Supreme Court would prefer that lower courts follow the example of the analysis used by the Benisek court.

Ultimately, Gill and Benisek together contain a number of lessons and present new challenges for potential plaintiffs in redistricting and other election-related cases. Other cases are in the queue, and it may not be long before we know if partisan-gerrymandering claims are left with any viability whatsoever.