June. 24, 2018
Gill v. Whitford, 585 U.S. ___ (2018) (Roberts, C.J.).
Slip Opinion | SCOTUSblog
Benisek v. Lamone, 585 U.S. ___ (2018) (per curiam).
Slip Opinion | SCOTUSblog
Response by Alan B. Morrison
Geo. Wash. L. Rev. On the Docket (Oct. Term 2017)
Gill v. Whitford & Benisek v. Lamone: Some Good News and Some Bad
This past Monday, the Supreme Court handed down two very different decisions than anyone following the redistricting challenges in Gill v. Whitford1 and Benisek v. Lamone2 had expected. In Gill, all nine Justices agreed—itself a surprise—that none of the plaintiffs had proven that they had standing to assert the vote dilution claim that they had pressed. And in Benisek, the Court’s per curiam opinion simply affirmed the denial of the preliminary injunction that the plaintiffs sought, eschewing the constitutional issues and relying on the lower court’s balancing of the equities that favored the defendants.
Both cases involved challenges to obvious cases of political gerrymandering, by the Republicans in Wisconsin (Gill) and by the Democrats in Maryland (Benisek). There were two major, interrelated hurdles that the plaintiffs had to overcome and that the Court was asked to consider in both cases but did not reach: first, whether, despite the constitutional violation, the inability of the courts to fashion a principled remedy meant that the case had to be dismissed under the “political question” doctrine, which is what happened in the most recent case like this, Vieth v. Jubelirer3; and second, the recognition that every time district lines are drawn, politics will inevitably enter the picture, and so a court cannot know how much partisanship is too much. The Gill plaintiffs had won a court order directing the state to redraw all of the lines for the state legislature, and that was wiped away by this week’s ruling—clearly bad news—and the Benisek plaintiffs had hoped that the denial of the preliminary injunction would be overturned. Neither group of plaintiffs had realistic hopes that a favorable decision would change the lines for the 2018 elections, but now it will be hard even to have any eventual victory made in time for 2020. All of that is clearly bad news. So what’s the good news?
Although there was no specific ruling on the political question defense in either case, it seems quite likely that there are not five votes for the proposition that the federal courts can never reach the merits in political redistricting cases; if there were, the Court would have dismissed both cases. Reading between the lines, it appears that Justice Kennedy, who was the fifth vote in Vieth, but also the least firm in his political question concerns, has concluded that there are some cases in which the political question doctrine will not be a barrier, and that there will be some way to determine when there is too much partisanship to uphold the lines as drawn. In other words, a majority of the Court appears willing to decide the merits of a properly litigated partisan gerrymandering case.
The Gill conclusion that plaintiffs lacked standing was not good news, but unlike many of the Court’s standing decisions, this one was not a death knell to these plaintiffs bringing this claim, as the Court’s remand makes clear. In his opinion on standing, Chief Justice Roberts held that a plaintiff in a redistricting case has standing only to complain about the lines drawn for his or her district, not for the state as a whole. The problem here was that the one plaintiff who testified resided in a district whose political composition would not have changed no matter what reasonable lines were drawn, and so he was not injured. The other individual plaintiffs did not testify, and because there was no evidence that they were injured (or of how they were injured), the judgment in their favor could not stand. However, over the dissent of Justice Thomas, joined by Justice Gorsuch, the Court did not throw the case out but allowed the plaintiffs to supplement their claims to show actual injury to those plaintiffs on a district-by-district basis. Moreover, although injury must be shown locally, state-wide evidence will be admissible, and although any remedy must be for the particular districts which were harmed, the injury can only be redressed by altering the boundaries for some, or more likely several, other districts. And, of course, nothing would prevent a state from redrawing all the district lines, instead of tinkering with a few districts and then having to defend the lines for others.
The third piece of good news is the concurrence in Gill of Justice Kagan, on behalf of herself and Justices Ginsburg, Breyer, and Sotomayor. Her opinion spelled out in detail how the plaintiffs could establish their standing and, perhaps more importantly, encouraged them to press their First Amendment claim. The plaintiffs included this claim in their complaint, but they did not present a factual or legal basis at the trial; instead, they focused on the Equal Protection Clause. Justice Kagan also made clear that she believes that the First Amendment is the stronger claim, is easier on both standing and the merits, and fits very nicely with a district-by-district approach. In doing so, she tied her approach to that taken in racial gerrymandering cases, which are only justiciable on a district-by-district basis,4 and for which the Court has not found the political question doctrine to be an obstacle.
There is another reason why Justice Kagan’s reference to the racial gerrymandering cases is good news for challengers. In those cases, the defense has often been, “we did not move black voters around because they were black, but because they were Democrats.” In response, the Court has required plaintiffs to show that racial considerations “predominated,”5 and it has upheld lower court findings to that effect and thus answered, in that context, the equivalent of the “how much is too much” question. Justice Kagan’s concurrence seems to conclude that the First Amendment can be used in the same way, on a district-by-district basis, to overcome the two hurdles noted above when the claim is partisan gerrymandering. And if that approach succeeds, it will end the hypocrisy of courts trying to parse out which motive “predominates”—race or political party—when they are inextricably intertwined.
Skeptics will respond that Justice Kagan wrote for only four Justices, with Justice Kennedy noticeably absent, and further, that if he agreed with Justice Kagan, he would have joined her opinion, turning it into a majority ruling. There can be no definitive rejoinder to that objection, but the conclusion that Justice Kennedy will not support a First Amendment claim, in a district-only challenge by a plaintiff living in that district, does not necessarily follow for several reasons. First, given the unanimous ruling on the Gill plaintiffs’ lack of standing, the Court could not have decided the merits, and so even if Justice Kagan had five votes, her opinion would be only dicta. Second, Justice Kennedy would have been very sensible to abstain on abstract questions regarding political question and the First Amendment until he had an actual case requiring its resolution. Even Benisek did not meet that requirement because it came to the Court on the denial of a preliminary injunction. Third, Justice Kennedy has, in both Vieth6 and Shapiro v. McManus,7 expressed his view that the First Amendment is the more promising theory on which to attack partisan redistricting. And finally, the failure to get five votes to dismiss on political question grounds, which would have to include Justice Kennedy, underscores the continued viability of the First Amendment claim.
It may be because I am an eternal optimist and a supporter of a limited judicial role in correcting the most egregious partisan gerrymanders that I think that there was more good news than bad in this week’s redistricting decisions, even though they are a temporary setback in ending the practice. It is possible that we will know the Court’s inclination as soon as Monday when it could announce whether it will hear the appeal by North Carolina congressional map drawers from an adverse decision in Common Cause v. Rucho,8 in which there are multiple claims, including a First Amendment challenge, but also a potential standing hurdle.
Stay tuned.
Alan B. Morrison is the Lerner Family Associate Dean for Public Interest & Public Service Law at the George Washington University Law School, where he teaches constitutional law. He filed an amicus brief in support of the appellants in Benisek v. Lamone.
- No. 16-1161, slip op. (U.S. June 18, 2018).
- No. 17-333, slip op. (U.S. June 18, 2018).
- 541 U.S. 267 (2004).
- See Ala. Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015).
- See id.
- 541 U.S. at 315.
- 136 S. Ct. 450, 456 (2015).
- 279 F. Supp. 3d 587 (M.D.N.C. 2018).
Recommended Citation
Alan B. Morrison, Response, Gill v. Whitford & Benisek v. Lamone: Some Good News and Some Bad, Geo. Wash. L. Rev. On the Docket (June 24, 2018), https://www.gwlr.org/gill-v-whitford-benisek-v-lamone.
