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'Toxic for Democracy': Voting Rights Advocates Vow to Fight After Supreme Court Punts on Gerrymandering

Supreme Court sends Wisconsin and Maryland cases back to lower courts while eyes remain on North Carolina case

Visitors line up outside the U.S. Supreme Court plaza before the court handed down decisions June 18, 2018 in Washington, DC.  (Photo: Chip Somodevilla/Getty Images)

Voting right advocates are saying the U.S. Supreme Court missed an opportunity to address the crisis of partisan gerrymandering on Monday after the court punted on two separate cases—one from Wisconsin and one from Maryland—focused on the issue.

Though disappointed in the rulings, Karen Hobert Flynn, president of Common Cause, said the outcome means the cases have been referred back to lower courts and, as such, "the fight to establish constitutional limits on partisan gerrymandering is very much alive."

The side-stepping also means the controversial maps stay in place for mid-term elections this fall.

In the Wisconsin case, Gill v. Whitford (pdf), Democratic voters had challenged the state's legislative districts drawn up in 2011 by Republican legislators, which afforded the GOP more legislative control. The justices ruled unanimously that the plaintiffs lacked standing, but in a 7-2 decision also sent the case back to district court "to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes."

In a concurring opinion, Justice Kagan wrote that "unfair partisan gerrymandering, as this Court has recognized, is 'incompatible with democratic principles.'" She wrote:

More effectively every day, that practice enables politicians to entrench themselves in power against the people's will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. ... partisan gerrymandering injures enough indi­viduals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation's democracy.

When the case goes back to the same lower court that struck down the mapping configuration, "We are confident we can prove the real harms to real citizens caused by lawmakers who choose their voters instead of the voters choosing their representatives. We are encouraged by Kagan's concurrence," said plaintiff Bill Whitford, a retired law professor from Madison.

Declaring "Unlawful partisan gerrymandering... inimical to our democracy," Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law, said, "we will remain vigilant to ensure that officials do not exploit this moment to alter redistricting maps in ways that undermine democracy."

In the Maryland case, Benisek v. Lamone (pdf),  Republican voters had challenged a congressional district that Democrats drew after the 2010 census. The justices did not weigh in on the merits of that case either, so it will now head to the lower courts to get a trial, as the Associated Press notes.

According to Michael Li, senior counsel at the Brennan Center for Justice at NYU School of Law, "The court had abundant evidence that extreme gerrymandering in Wisconsin and Maryland is toxic for democracy."

"But while it's disappointing to see the court punt, the decisions aren't losses," he argued, and pointed to a North Carolina partisan gerrymandering awaiting review by the Supreme Court.

"Both cases go on, and the justices will have the chance to finally say something about when gerrymandering is illegal next term, in a case out of North Carolina with overwhelming evidence of how gerrymandering quashes voters' voices. Until then, Americans should redouble their efforts to fix the redistricting process before the next national redistricting in 2021—ensuring states draw fair maps that give voters a choice."

"The Supreme Court missed an opportunity today to lay down a firm marker as to when partisan gerrymandering is so extreme that it violates the constitutional rights of voters," asserted Dale Ho, director of the ACLU's Voting Rights Project.

He also noted that it's not the end of the road for the Wisconsin and Maryland cases, adding that others "around the country—including our challenge to Ohio's gerrymandered congressional map — will remain ongoing to ensure that voters' voices are heard."

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