Voters May Have Waited Too Long on Gerrymandering Claim

By Kimberly Strawbridge Robinson

The U.S. Supreme Court may have found a technical way to continue to kick the can down the road on the perplexing issue of partisan gerrymandering during oral argument March 28.

The court has struggled with the issue for three decades.

In that time, the court has said that extreme partisan gerrymandering—that is, drawing voting districts to specifically favor one party over the other—can violate the Constitution. But they haven’t figured out what, if anything, courts can do about it.

The issue confounded the justices earlier this term when they heard a partisan gerrymandering challenge out of Wisconsin. They didn’t seem any closer here.

There was one thing many justices did seem to agree on: They could bounce the case back to the lower court on a procedural issue without even addressing the merits.

Avoiding the issue this time around would allow the mid-term elections to take place under maps that may later be determined to be unconstitutional. And it could mean that state legislatures are left without any guidance on political considerations when redistricting after the 2020 census.

But Michael Li, of the Brennan Center for Justice, New York, who was in the courtroom for oral arguments, said that though several justices seemed interested in taking this route, it’s not clear that that’s where they will go.

Li filed an amicus brief supporting Republican voters challenging Maryland’s congressional map.

Too Late

Justice Ruth Bader Ginsburg was the first to identify the procedural issue. Early on in the argument, she noted that the case comes to the Supreme Court on the denial of a preliminary injunction.

One thing the court looks to when assessing whether to issue a preliminary injunction is whether the plaintiffs will suffer irreparable harm without one.

But it’s too late for the lower court to draw a new map for the 2018 mid-term elections, Ginsburg said. So how will you be irreparably harmed without the preliminary injunction? she asked the challengers’ attorney, Michael Kimberly, of Mayer Brown LLP, Washington.

Kimberly didn’t think it was too late for the lower court to come up with a short-term solution.

Justice Anthony M. Kennedy—who could be the deciding vote in the case—wasn’t having it.

People are already planning their campaigns, Kennedy said. It would be highly disruptive to the current election cycle if this court suggested that a new map might have to go into effect before the election, he said.

Put Up With Harm

Some of the justices suggested that the challengers didn’t just wait too long to get relief ahead of the 2018 election, but that they had waited too long in general.

“You waited an awfully long time to bring this suit” given that the redistricting changes happened in 2011, Justice Sonia Sotomayor said.

Because “of your delay, elections have been held under this” map “in 2012, 2014, and 2016,” Chief Justice John G. Roberts Jr. said. If “you’ve been willing to accept that harm in three different cycles, I don’t know if we should get concerned about irreparable harm for one more,” he said.

Kimberly responded that the plaintiffs originally brought their case in 2013. But they had to go all the way up to the Supreme Court to even get a court to hear the case.

A lower court initially threw out the case, saying it had no merit. The Supreme Court in 2015 said a special three-judge district court panel had to hear plaintiffs’ claims.

So the delay isn’t due to the plaintiffs, Kimberly argued.

Even More Extreme

Sotomayor, though, wondered what would happen if the Supreme Court decided to send the case back to the lower court.

There would be a trial on the merits, Kimberly said. But because Kimberly thinks the lower court relied on the wrong standard when determining what the plaintiffs had to show in order to be successful, he said that the trial would go forward based on a “fundamentally misguided view” of the law.

That raises the possibility that the case will just return to the Supreme Court to address the very issue in front of it now.

Well, “the Court can pick out of the different criteria” on which “it wants to base its decision,” Roberts said. “And I think it’s part of your challenge today to explain to us why we should pick out the hardest one,” he said, referring to Kimberly’s suggestion that the court decide the question of whether and how courts can police partisan gerrymandering.

Lower courts are asking for guidance on this issue, Kimberly said.

And state legislatures, too. They will go through another round of redistricting following the 2020 census. And without some limits from the Supreme Court, technological advances could make partisan gerrymanders even more extreme the next time around.

If “you think what’s happened now is something, wait until you see those computers really working,” Justice Stephen G. Breyer said.

The case is Benisek v. Lamone , U.S., No. 17-333, 3/28/18 .

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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