In the next few weeks — or even days! — extreme partisan gerrymandering may be rescued from legal purgatory. Is it constitutional or not? For years, we haven’t known. But by the end of the month, the U.S. Supreme Court is expected to rule on two partisan gerrymandering cases — Gill v. Whitford, a case from Wisconsin, and Benisek v. Lamone, a case from Maryland. The decisions could alter a fundamental part of how we structure our democracy.
But what will those decisions be? FiveThirtyEight has spent months thinking about gerrymandering, and we don’t have a clue. Predicting the high court’s decisions is a fool’s errand, in part because there are many paths the justices can take.
So, rather than guess what will happen, we’ve occupied ourselves by reporting out what could happen. I spoke to five constitutional scholars about the court’s much-anticipated rulings, and based on those conversations, I outlined seven potential paths the court could take. The possibilities range from overhauling the way we divide ourselves into districts to clearing a legal path for extreme partisan gerrymandering to continue.
This rundown starts with the most optimistic paths for those who want an end to partisan gerrymandering. Take a breath, picture the shape of your favorite district, and step with me into the multiverse.
1. The court rules that extreme partisan gerrymandering is unconstitutional, and one of these cases has found the standard that proves it.
Under this scenario, the court would endorse a standard for measuring gerrymandering presented in one of the two cases. In the past, the court has declined to rule that extreme partisan gerrymandering is unconstitutional because lawyers didn’t present a sufficient way to measure just how gerrymandered a district or state is. In 2004’s Vieth v. Jubelirer, the case that furthered the legal purgatory we are in today, Justice Anthony Kennedy wanted a clear standard for when the normal process of redistricting becomes illegal gerrymandering. Such a standard would let state legislatures and district courts know what is and isn’t allowed.
There are key differences between the two cases, so it matters which standard the court chooses. The Wisconsin case disputes a Republican gerrymander of a statewide map and proposes a three-part test, including mathematical equations, to demonstrate that Democrats across the state were historically disadvantaged. The Maryland case litigates a Democratic gerrymander of a single district and argues that the power of Republican voters in that one district was diluted as retaliation for their past votes. The Maryland standard is largely math-free.
Gerrymandering opponents are generally more eager to see the court endorse the Wisconsin standard, which would create a path to challenge statewide maps. If the court accepts the Wisconsin standard in some form, it is very unlikely to embrace the specific mathematical equations used in the case or endorse a numerical cutoff for what constitutes an illegal gerrymander. It could embrace the overall concept of the three-part test and say that whatever the numerical cutoff may be, this specific map is extreme enough to be unconstitutional.
This would set off a wave of challenges to statewide maps, and perhaps eventually the court would get more specific about where the cutoff between legal and illegal is. But there is no guarantee that it would ever land on a clear answer.
If the court endorses the Maryland standard, things could also be messy, as maps would have to be litigated district by district. There would also be questions about whether there are ever legal reasons for redistricting people based on their partisanship — for example, to create a competitive district or protect an incumbent.
2. The court rules that extreme partisan gerrymandering is unconstitutional. It says that while this term’s cases haven’t found the standard, the court has an idea of what one should be.
The court could decline to endorse either standard presented in the two cases but still express an opinion about what makes an unconstitutional gerrymander.
In general, this scenario would be a win for gerrymandering opponents because it would proclaim that partisan gerrymandering can be unconstitutional. But there’s also the possibility that the standard the court offers is so strict that few cases will ever meet it — including the Wisconsin and Maryland cases the court is considering right now. Again, the details will matter.
3. The court rejects the cases for procedural reasons, and the status quo is kept intact.
The court could reject the two gerrymandering cases without ever assessing their merits for various procedural reasons. In the Wisconsin case, the court may say that individuals do not have standing to sue to invalidate statewide maps and that such a lawsuit could only be brought by an organization, such as a political party. In Maryland, the court could say that new maps could not be drawn in time for 2018, so the case should return to lower courts.
In this scenario, the court would not say anything about the actual standards in the cases and would preserve the status quo.
4. The court says that extreme partisan gerrymandering might be unconstitutional but that the standards in these cases won’t suffice.
Under this scenario, the court would assess the standards on their merits and reject them without saying what the right standard is, similar to what it did in Vieth. While this decision would again leave the door open for a standard to one day come along, it would be a blow to those trying to do away with gerrymandering now. In recent years, they have focused their efforts on establishing the standards presented in these cases, particularly the Wisconsin case. The Supreme Court taking that off the table for future cases would send them back to the drawing board.
Under both the third and fourth scenarios, all eyes would turn to a North Carolina gerrymandering case that could be argued at the Supreme Court this fall. That case is unlikely to run into the potential procedural issues of the Wisconsin and Maryland cases, and it could propose yet a different standard for illegal partisan gerrymandering.
5. The court rules that partisan gerrymandering is “nonjusticiable.”
The court could decide that claims of partisan gerrymandering are not justiciable because it is a political issue and therefore not within the purview of the courts to decide. This would be a big blow to those seeking to change the redistricting system and would prevent partisan gerrymandering from being litigated in federal court.
This scenario would happen if Justice Kennedy, who previously sided with the four liberals on the court to say that partisan gerrymandering is in the court’s purview, changed his mind. While it seems unlikely, Kennedy could become convinced that a manageable standard for measuring a gerrymander will never come along. In that instance, a majority of the court could still say that partisan gerrymandering is undemocratic and encourage legislatures to do something about it, but it would acknowledge that it’s not ultimately up to the justices.
If this were the result, the fight over partisan gerrymandering would leave the federal courts but likely continue to rage in state legislatures, on ballot measures and in state courts.
6. The court says it hasn’t made up its mind.
This is not a joke. The Supreme Court may not actually decide these cases for an entire additional year. During the oral arguments in the Maryland case, Justice Stephen Breyer floated the idea of having both of the cases reargued alongside the upcoming North Carolina gerrymandering case this fall. This is not common but also not unheard of when the court is considering similar cases. A delay would give the justices more time and another example of partisan gerrymandering to consider, but it would also suggest that the court is having trouble coming to an agreement. If they take this path, we won’t know the outcome until sometime during the first half of 2019. [facepalm]
7. A splintered decision.
This is not exactly a distinct scenario but more a combination of the possibilities laid out above. The justices could be so splintered in their opinions that there is significant disagreement about what the court is actually saying. For example, in the Vieth case, the court issued five different opinions, leading judicial conservatives and liberals to continue to debate how the court views partisan gerrymandering. In practice, when this happens, the applicable opinion is supposed to be the one ruled on the narrowest grounds. Of course, there can also be debate over which opinion is judged on the narrowest grounds. Welcome to the world of constitutional law.
Phew, we made it. Some of these paths are more likely than others, but it’s tough to handicap each, and we will know the answer to these questions very soon.
No matter how the court rules, here’s what we know already: People are increasingly paying attention to how districts are drawn, and they aren’t happy about it. If the court does strike down extreme partisan gerrymandering, the legal battles could continue for years. If the court sides with the gerrymandering states, opponents will try to change things outside the Supreme Court.
For better or worse, even once we have the decisions in hand, the issue of partisan gerrymandering will be a long way from settled.