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The Supreme Court still won’t crack down on partisan gerrymandering — yet, at least

The justices ruled that the plaintiffs in Gill v. Whitford didn’t establish standing, but sent it back for reargument.

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Andrew Prokop is a senior politics correspondent at Vox, covering the White House, elections, and political scandals and investigations. He’s worked at Vox since the site’s launch in 2014, and before that, he worked as a research assistant at the New Yorker’s Washington, DC, bureau.

The Supreme Court ruled on its big partisan gerrymandering case — and the justices decided, essentially, to give the plaintiffs a do-over.

The justices unanimously agreed that the plaintiffs in Gill v. Whitford — 12 Wisconsin Democratic voters who sued to strike down the state legislature map, arguing it was gerrymandered against the party — failed to establish standing to bring their lawsuit. You can read the whole decision at this link.

The problem, the justices concluded, was that plaintiffs focused on proving the entire state map was gerrymandered against Democrats. Instead, they should have focused on proving whether their particular districts were gerrymandered.

But rather simply dismissing the case, as is the norm when the Court finds a lack of standing, seven of the nine justices ruled that it should be sent back for reargument before the district court — essentially, giving plaintiffs another shot at establishing standing, now that the Court has laid out more guidance on how to do so.

“This is not the usual case,” Chief Justice John Roberts wrote in the opinion. “It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved.” So, he wrote, “we decline to direct dismissal.” (Justices Clarence Thomas and Neil Gorsuch dissented from this part of the ruling, arguing that the case should simply be dismissed.)

For anti-gerrymandering activists, the ruling is a mixed bag. The Court declined to establish a sweeping new legal standard restricting partisan gerrymandering in statewide maps. Furthermore, even all of the Court’s liberals agreed that the plaintiffs had failed to establish standing with these arguments.

However, rather than rejecting any court role in ruling on partisan gerrymandering, the justices laid out a more limited path for how that could happen: with voter suits focusing on proving bias in their individual districts, not on proving bias in statewide maps.

It is also possible that a different plaintiff could still establish standing to strike down a statewide map. Democratic lawyer Marc Elias suggested on Twitter that in his reading of the ruling, a political party could conceivably do so:

Now, the Court’s four liberals did file a concurring opinion sharply criticizing the practice of partisan gerrymandering and suggested they still think it’s possible for voters to sue over statewide maps even though standing wasn’t established in this particular case. “Courts have a critical role to play in curbing partisan gerrymandering,” Justice Elena Kagan wrote. However, they still lack the crucial fifth vote to make clear a majority agrees with them.

The Court also unanimously dismissed a separate suit over gerrymandering in Maryland, Benisek v. Lamone, on procedural grounds, affirming a district court holding without addressing the merits of the larger case.

What the Gill v. Whitford Wisconsin gerrymandering suit was about

Back in 2011, Republicans redrew Wisconsin’s state legislature maps and heavily gerrymandered them to benefit their own party. To do so, they used a time-tested technique known as packing and cracking. They “packed” many Democratic voters into just a few districts that the party would win overwhelmingly, to dilute their electoral strength elsewhere. Then they “cracked” remaining Democratic voters elsewhere in the state, spreading them out across various districts to try to ensure the GOP would have the advantage in most of them.

Now, the US Supreme Court has never yet agreed to step in and put limits on partisan gerrymandering. It’s never even found that the practice was unconstitutional. But even if the Court did reach that conclusion, other difficult questions would arise. How do you measure partisan gerrymandering, anyway? And if you can even measure it, how much is too much?

Academics and activists saw the Wisconsin situation as an opportunity to put forward a new argument here. University of Chicago law professor Nicholas Stephanopoulos and political scientist Eric McGhee had developed a metric called the “efficiency gap” — a way to calculate how many votes for each party were “wasted” by a particular map, through packing and cracking.

So in the Gill v. Whitford suit, the plaintiffs — 12 Democratic voters in Wisconsin — proposed that the courts limit partisan gerrymandering based on the efficiency gap. And they suggested that if a party gets a wasted-vote advantage of more than 7 percent of the total vote in the state, that’s unconstitutional. (Wisconsin’s legislative map had efficiency gaps of 13 percent in 2012 and 10 percent in 2014, as Dylan Matthews writes.)

What the Gill v. Whitford ruling means for gerrymandering lawsuits

On Monday, the Court didn’t rule on the merits of the case at all. They didn’t decide whether partisan gerrymandering is constitutional, or on how it could be measured or limited if so. They’ve left that unresolved.

So to understand what happened, you have to understand the legal concept of “standing.” Because before a court will even rule on the merits of your lawsuit, it first has to find that you have the proper standing to bring it.

To establish standing to bring a legal case, plaintiffs have to establish both an “injury” (how they’re harmed by what they’re suing over) and a “remedy” (how they think the courts should address that harm).

In the Wisconsin case, the justices unanimously concluded that there was a mismatch between the injury the plaintiffs asserted and the remedy that they proposed. The injury was that voters in particular districts argued their votes were diluted by unfair gerrymandering. But the remedy they proposed was about restricting partisan gerrymandering in the statewide map as a whole.

“To the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific,” Chief Justice Roberts wrote. “In this case the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district.”

Yet in the arguments for this case, the plaintiffs didn’t really focus on proving that their own districts were unfairly gerrymandered — they took aim, instead, at the state map as a whole, using the “efficiency gap” metric. The justices concluded that this doesn’t work, for standing purposes. So a majority of justices ruled to send the case back for reargument before the district court to give plaintiffs another shot at establishing standing.

Meanwhile, a concurring opinion written by Justice Elena Kagan and joined by the Court’s three other liberals sharply criticized the “evils” of partisan gerrymandering. The liberals agreed with the standing finding, but they argued that, should the plaintiffs come back with better evidence about gerrymandering’s impact in their own districts, they could still “make use of statewide evidence and seek a statewide remedy.” However, it is unclear if they have a fifth vote on the court who shares this interpretation.

Overall, many view this outcome as a punt, with the true action still lying ahead — whether that would be in reargument by the Gill plaintiffs or a new suit brought by other plaintiffs who might have a better argument for standing to sue about a statewide map. All that’s clear for now is that the Supreme Court hasn’t stepped in to restrict partisan gerrymandering just yet.