Wisconsin – Whitford v. Gill
This case had been the one to watch because it offered the court an opportunity to expound on when partisan gerrymandering becomes egregious enough to violate the 14th amendment. In this case for the first time in history, a federal district court invalidated a statewide map as an unconstitutional partisan gerrymander. However, last week the Supreme Court, unceremoniously punted the case back by remanding it for the plaintiffs to properly show they have standing. The only thing the court did confirm in Whitford was that it would not consider 14th amendment based partisan gerrymandering challenges to a statewide map. Instead, a plaintiff to prove standing, must assert a specific harm from the boundaries of a “specific” district. In the words of the court:
“it appears that not a single plaintiff sought to prove that he or she lives in a cracked or packed district. They instead rested their case at trial—and their arguments before this Court—on their theory of statewide injury to Wisconsin Democrats.”
Despite its rather ho-hum ruling, this case still has all of the potential for developing partisan gerrymandering jurisprudence in the future for two reasons. First, the court took the unusual step of remanding the case instead of dismissing it. Generally, lack of standing means the court ruling below is vacated and dismissed, but the court took special care to return the case and give the plaintiffs another crack at properly presenting their case because in the court’s own words “the case concerns an unsettled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved . . . “
Second, the court also gave a nod to the future potential of claims of partisan gerrymandering based on the 1st amendment. The majority opinion as well as a concurrence by Justice Kagan hinted this sort of claim could be made on the basis of a “statewide” map. The Whitford plaintiffs made this claim in their pleadings, but the court case below was decided on their 14th amendment claim of vote dilution. This acknowledgement by the court is key, since it reveals the court’s openness to an entirely new kind of partisan gerrymandering challenge.