On Monday, the U.S. Supreme Court handed down another opinion in a long line of attempts to deal with the issue of political gerrymandering. Unfortunately, the decision did not reach the merits.  In Gill v. Whitford, the eagerly awaited case out of Wisconsin, the Court unanimously concluded that the plaintiffs had failed to prove that they had standing to pursue their claims.

Chief Justice Roberts, writing for the majority and joined by Justices Kennedy and Alito, briefly rehashed both the history of Gill and the long and complicated line of the Supreme Court’s political gerrymandering cases. That line of cases, as he noted, has “left few clear landmarks for addressing the question” and has “generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role of the Federal Judiciary in remedying that injury.” Most importantly, the prior cases have left two threshold questions unresolved:  first, what is necessary to show standing in a political gerrymandering case, and second, whether such claims are even justiciable in the first place.

In Gill, the plaintiffs claimed that their votes were being diluted by processes known as “packing” and “cracking.” In other words, they alleged that they had been harmed by virtue of being placed in legislative districts deliberately designed to “waste” their votes in elections where their chosen candidates would either win by huge margins (packing) or would lose by closer, but just as certain, margins (cracking).

According to the Supreme Court, a claim for vote dilution is district specific, in that the disadvantage in voting power, and thus the injury, to any individual voter “results from the boundaries of the particular district in which he resides.” Four of the plaintiffs in Gill made allegations about individual injuries, but as the proceedings in the district court moved to trial, the plaintiffs “failed to meaningfully pursue their allegations of individual harm.” Instead, they rested their case at trial, and before the Supreme Court, on a theory of statewide injury to Wisconsin Democrats, using statewide evidence to support it. Chief Justice Roberts detailed the various types of proof the plaintiffs had offered of such harm, including the much discussed  “efficiency gap” theory, but noted that the statewide evidence was beside the point: the plaintiffs had failed to prove that they had been individually harmed by a partisan gerrymander. In the absence of such an individual injury, they did not have standing to bring their claims.

Notably, rather than dismissing the plaintiffs’ claims, as is typical when the Court finds a lack of standing, the Court (minus Justices Thomas and Gorsuch, who would have dismissed the case) remanded the case back to the district court for further proceedings so that the plaintiffs could attempt to prove individual standing.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, concurred in the majority’s holding but wrote separately in order to explain, among other things, what sort of evidence would be required to prove standing, as well as how such a case could proceed on the merits.

Justice Kagan explained that in terms of standing, a threshold showing that a plaintiff is “among the injured” in a given district should not be hard to make, and evidence typical of other gerrymandering cases, such as alternative maps, would be sufficient. Thus, while she concurred with the decision to remand the case, she explained that, assuming what the plaintiffs alleged was true, they should have “a mass of packing and cracking proof.”

Once such proof of standing is given, according to Justice Kagan, the district court can proceed to the merits, where the sort of statewide evidence the plaintiffs had presented so far would be perfectly acceptable to help prove the case on the merits. Further, Justice Kagan explained that a statewide remedy, rather than re-drawing only a few district lines, would also not be out of the question. Such a remedy would simply depend on how much redistricting would be necessary to cure the wrongs caused by an illegal gerrymander.

The most interesting part of the concurrence, however, lies in section II. Justice Kagan noted that while everything discussed in Gill relates to suits that allege the dilution of individual votes, partisan gerrymanders injure far more than only individual voters.

For example, a partisan gerrymander may infringe upon the First Amendment right of association held by a political party and its members. Such harm is distinct from vote dilution and would require a different sort of showing for standing. As Justice Kagan put it, “when the harm alleged is not district specific, the proof needed for standing should not be district specific either.” Justice Kagan noted that the plaintiffs in Gill had simply not adequately pursued such a claim.

The fact that this case did not reach the merits of political gerrymandering is undoubtedly disappointing.  As the Court has noted repeatedly, “partisan gerrymandering jeopardizes the ordered working of our Republic, and of the democratic process.” Further, as I have pointed out previously, the uncertain status of partisan gerrymandering enables the “politics not race” defense that many legislatures rely upon in gerrymandering lawsuits, and precluding such a defense would drastically change redistricting nationwide. Perhaps more basically, however, it simply seems like common sense that voters should choose their representatives, and not the other way around. It should  be stressed that this is not an issue endemic to any single political party. The same day Gill was handed down, the Supreme Court also decided Benisek v. Lamone in a per curiam decision, a case from Maryland in which Republican voters were suing over a Democratic political gerrymander.

Justice Kagan’s concurrence provides a plausible pathway forward for a political gerrymandering case to finally reach the merits. The plaintiffs in Gill may choose to pursue an associational claim on top of their vote dilution claim, as suggested by Justice Kagan, and allege that the political gerrymander in Wisconsin harmed their ability to “band together to further their political beliefs.” That is the harm Justice Kennedy, long thought to be the swing vote on partisan gerrymandering, advanced as plausible in Vieth v. Jubelirer, 541 U. S. 267, 292 (2004).

Unfortunately, it will likely be some time before Gill winds its way back to the Supreme Court. However, another political gerrymandering case from North Carolina currently sits before the Court and may represent the issue’s next shot before the Supremes. In Rucho v. Common Cause, the Middle District of North Carolina struck down North Carolina’s 2016 remedial map as an unconstitutional political gerrymander in violation of the First Amendment, the Equal Protection Clause, and Article I sections 2 and 4 of the United States Constitution.  The Supreme Court stayed the district court’s order pending appeal, and the case is currently awaiting review.  Unlike Gill, Rucho involves individual and group plaintiffs and alleges both district-by-district vote dilution as well as statewide harm.  The case seems well set up as a vehicle for the issues discussed in Justice Kagan’s concurrence. Rucho may be the next opportunity for the Court to take a shot at resolving the issue of partisan gerrymandering once and for all.  Or it may be yet another opportunity to skirt the issue.

Thoughts on Gill, Rucho, or the partisan gerrymandering in general? Leave them in the comments!