The Supreme Court sidestepped a potentially historic ruling Monday that would have blocked states from drawing election maps meant to help one political party dominate the other, but the issue may return in 2019.
The second possibility, challenging a statewide map through an organizational plaintiff, could be tested in a North Carolina partisan gerrymandering case that could make its way to the Court next term.
Republican voters sued Maryland after the legislature in 2011 redrew boundaries for the state's Sixth District in a way that removed Republican-leaning areas and added Democratic-leaning areas. Justices Clarence Thomas and Neil Gorsuch opposed giving them another try.
Chief Justice John Roberts said the voters lacked the legal standing to bring the case forward because the alleged disadvantage placed on Democratic voters only affected individual legislative districts and not the state as a whole.
Under normal circumstances, Roberts wrote, "we usually direct the dismissal" of the case. "The court's constitutionally prescribed role is to vindicate the individual rights of the people appearing before it". The defendants appealed the order to the Supreme Court, which both stayed the district court order and postponed consideration of its own jurisdiction. The incumbent in the challenged district is not running for reelection. They said statewide claims can be based on the First Amendment's right of association - all in an effort to stop politicians from "degrading the nation's democracy".
The four justices in the court's liberal bloc - Elena Kagan, Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor - wrote a concurring opinion suggesting the plaintiffs in North Carolina had a strategy for a partisan gerrymandering claim the court would consider. A three-judge court threw out the map, saying the lawmakers who drew it were "motivated by invidious partisan intent". The formula attempts to highlight partisan imbalance among all the districts in a state, with the underlying assumption being that districts should be as competitive as possible to reduce the number of "wasted" votes. Each cited his views six times in their separate opinions.
-Do the particular plans being challenged cross that line? Litigation will now continue in a lower court. Those new standards convinced the Pennsylvania state supreme court to overturn its congressional map as a partisan gerrymander, as well as a federal three-judge panel in North Carolina, which will likely head to the Supreme Court this fall.
In a state where Democrats outnumber Republicans two to one, Maryland's mapmakers turned an eight-member House delegation that was split evenly in 2000 into one that now has seven Democrats and one Republican.
"While it's disappointing to see the court punt, the decisions aren't losses", said Michael Li, senior counsel at the Brennan Center for Justice at NYU School of Law. Rep. Steve Strivers (R-Ohio), the chairman of the National Republican Congressional Committee publicly explained that the playing field is tilted in Republicans' favor due to the last round of redistricting.
Republicans created the Wisconsin map after winning full control of the state government in 2011, the first time either party had done that in more than 40 years.
The supreme court dodged a decision on whether it is constitutional for political parties to redraw electoral maps to gain a partisan advantage.
Split-ticket voting often occurs in Wisconsin, undermining the Democrats' underlying argument. Both cases leave the major fight for another day.
The bill passed the Republican-controlled Senate on Wednesday, 35-14, on a near-party-line basis, blindsiding Democrats who called it a scheme to gerrymander the courts. That said, drawing new lines for one district would, of necessity, have ripple effects, changing the lines in others.
The court also upheld a lower court's opinion not to issue an injunction to allow officials to redraw the congressional map in Maryland before the 2018 election, supporting the District Court's decision that it was too close to the election for the court to interfere with the district map.
The Supreme Court in Washington. "While Republicans flipped almost 1,000 state legislative seats in the past decade on lines largely gerrymandered by Democrats, Democrats have flipped seats in districts drawn by Republicans, even in Wisconsin", Walter added.
The Wisconsin case, Gill v. Whitford, was also an extreme one.
Over the past few decades, computer software programs have vastly improved the art of line-drawing for partisan advantage.
What the Koch brothers and Republicans learned is that these individual races are less important than underlying state legislative contests. But depending on the outcomes, they could set precedents for states to follow for the next round of redistricting after the 2020 Census.