In unanimous decisions this morning, the Supreme Court turned away both partisan gerrymandering cases on grounds other than their ultimate merits — Gill v. Whitford (Wisconsin) by declaring the individual complainant to lack Article III standing arising from injury in his own district and sending the case back for him to establish that, and Benisek v. Lamone (Maryland) by finding it not an abuse of discretion for the lower court to deny a preliminary injunction, which does not mean the case will not be back at the regular injunction stage. Neither decision reaches or resolves the main constitutional issues raised by the two cases, which both remain alive. As I mentioned in February, the Court had already signaled that it was not in a rush to resolve the issue right away (the calendaring was leisurely) and that Justice Anthony Kennedy was not going to prove an easy recruit for the four liberals. (He joined the conservatives in staying the Wisconsin decision below.) In the Wisconsin case, the majority held that the complainant needs to go back and demonstrate that his own district, and not merely others in the state, has been subject to “packing” or “cracking.” (The Maryland complainants had already made this kind of showing; they were suing over the lines of their own district, not the whole state map.) Justices Thomas and Gorsuch went further, saying the Wisconsin complainant’s failure to establish individual standing should have ended his case, rather than resulting in a do‐over. In a concurrence on behalf of the four liberals, Justice Elena Kagan agreed on the need to send the case back for a showing of individual‐district standing but emphasized that, in her view, once the complainant established that he could then introduce statewide evidence and seek statewide remedies. This would preserve more or less the full scope of what liberal litigation groups have been hoping to achieve with the Wisconsin case. Significantly, Justice Anthony Kennedy did not join the liberals on these points — although of course he could view the case as having been resolved without needing to reach such issues. Nor did the majority opinion, written by Chief Justice Roberts, concede Kagan’s assertion that courts “have a critical role to play in curbing partisan gerrymandering.” Whatever happens in the Court — and a North Carolina case could bring the issues back next term — there are good reasons for states to act on their own to curb the evils of partisan gerrymandering without waiting for marching orders from the nine Justices. Measures to take line‐drawing out of the hands of self‐interested incumbents, to prescribe strong standards of compactness and congruence with counties and other political subdivisions, to provide for transparency, open data access, and public map submission, and to ensure strong judicial review, make sense in themselves and do not require waiting on a Court that has shown a reluctance to decide. The Court has kicked the issue of partisan gerrymandering down the road. States shouldn’t.
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