This morning a decision was released in Gill v Whitford (and a parallel case out of Maryland, Benisek v. Lamone). It is, to my mind, among the worst possible decisions. Rather than taking up the case and deciding it wrongly, they have remanded the case back to a lower court with orders to consider the question of whether or not the plaintiffs have suffered an individual injury to their voting rights.
Gill v Whitford is a case arising out of Wisconsin, where egregious gerrymandering occurred after the 2010 census. The census, for those who don’t know, is primarily done – or at least was primarily intended by the framers – to determine the number of representatives in the House and the number of presidential electors awarded to each state. Since these numbers can change, and because even when they don’t the distribution of population within a state can change, every decade after the census each state redraws their electoral districts to keep the total population in each district similar.
In Wisconsin redistricting is a legislative function (in some states it is performed by an independent, non-partisan commission), and in 2010 Republicans held a majority in the state’s Assembly and Senate. They used this majority to redraw electoral maps not merely to keep populations similar, but to put as many democrats as possible in as few districts as possible so that the remaining democrats spread throughout the majority of districts would be unable to successfully contest most republican nominees.
Now, if the Republicans had done this based explicitly on race, it would have been profoundly illegal and SCOTUS would never have gotten involved. Precedent here is sufficient that lower courts would have slapped down the Wisconsin republicans and there would be no sufficient legal question to interest SCOTUS. However, the Republicans went out of their way to say that they were disadvantaging Democrats as a party, not any voter on the basis of race.
Of course, Democrats as a party are much more non-white than Wisconsin voters as a whole. So there is a racial asymmetry here, and Republicans were acutely aware of that asymmetry, but the cover story of ratfucking Democrats while really, deeply not giving a shit about hurting people of color is every bit as believable as actively wanting to hurt people with darker skin for the sin of being born non-caucasian. So the courts have generally accepted that this is political discrimination and not racial discrimination (along the way throwing out a hard-won understanding of disparate impact developed in areas of law other than voting rights and in voting rights law itself).
So what did the court do here? Well, it ignored past precedent that held that an injury to an individual occurs when districts are racially gerrymandered to the detriment of the value of that individual’s vote. On the presumption that no injury to individual voters had occurred, the court vacated the previous judgement that a new electoral map was needed and instead remanded the case to the lower court to ask the plaintiffs how they’ve actually been injured. Only if the plaintiffs have been actually injured should the lower court then take up the legal questions about whether the actions causing the injury were illegal and if so whether any remedy is justified.
It’s difficult to see how to resolve this infirmity of standing, at least to me, since in deciding that the plaintiffs had given no evidence of individual injury SCOTUS necessarily decided that statewide gerrymandering does not injure individual voters.
To be clear, SCOTUS distinguished statewide gerrymandering from living in a gerrymandered district. The idea, from SCOTUS’ point of view, is that a state could gerrymander some districts without gerrymandering others. However, the mathematical analysis of the Wisconsin gerrymander actually provided evidence that the packing of large numbers of democrats into a few districts and the cracking of the rest into isolated remnants insufficient to contest (most of) the remaining districts was actually a systemic strategy. Though I haven’t looked at each of the plaintiff’s district of residence, a good many districts were called out as specific examples in the analysis. The idea that none of the plaintiffs lived in one of the districts seems a bit of a stretch to me, though I suppose it’s possible.
The danger here is that if any democrat lived in any district that was specifically discussed, then a careful reader of the trial court record will find that and be able to argue quite reasonably that SCOTUS believes that evidence of political gerrymanders is not evidence of an individual voter’s injury. In a decision ordering remand for lack of standing without ensuring that they examined every voter’s district of residence and the trial court record for indications that none of the voters lived in a district specifically discussed, SCOTUS has come dangerously close to asserting that no voter is injured when legislators gerrymander electoral districts on the basis of anything other than race.
If SCOTUS had accepted the standing of the plaintiffs and ruled against them, it would hardly approach the danger of SCOTUS asserting that there is no injury to voting rights at all.
This is an unmitigated disaster, and quite likely caused by sheer cowardice.