Gill v. Whitford

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Gill v. Whitford
Docket number: 16-1161
Term: 2017
Court: United States Supreme Court
Important dates
Argument: October 3, 2017 Decided: June 18, 2018
Court membership
Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Ruth Bader Ginsburg • Stephen Breyer • Samuel Alito • Sonia Sotomayor • Elena Kagan • Neil Gorsuch

Gill v. Whitford is a case decided by the Supreme Court of the United States on June 18, 2018, which held that the plaintiffs, twelve registered Democratic voters in Wisconsin, failed to show sufficient evidence of personal harm to have standing to challenge the state's legislative redistricting plan as an unconstitutional partisan gerrymander. The case was remanded to the district court. Argument in the case was held on October 3, 2017. The judgment under review was from the United States District Court for the Western District of Wisconsin.

In a July 21, 2017, talk addressing Duke University Law School's D.C. Summer Institute on Law and Policy, Justice Ruth Bader Ginsburg suggested that Gill was "perhaps the most important" case the court would hear during its October 2017 term, noting that "so far, the court has held race-based gerrymandering unconstitutional but has not found a manageable, reliable measure of fairness for determining whether a partisan gerrymander violates the Constitution."

HIGHLIGHTS

The case: Twelve registered Democratic voters in Wisconsin challenged the state's legislative redistricting plan, known as Act 43, as an unconstitutional partisan gerrymander in violation of the First and Fourteenth Amendments to the United States Constitution.

The issue: Does Act 43, the state's legislative redistricting plan, create an unconstitutional partisan gerrymander?

The outcome: On June 18, 2018, the court ruled that the plaintiffs had failed to demonstrate standing to bring the suit under Article III of the United States Constitution. The court's opinion, penned by Chief Justice John Roberts, did not address the broader question of whether partisan gerrymandering claims can be brought to trial under the U.S. Constitution and remanded the case to the lower court for further proceedings. Roberts was joined in the majority opinion by Associate Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Kagan penned a concurring opinion joined by Ginsburg, Breyer, and Sotomayor. Associate Justice Clarence Thomas penned an opinion that concurred in part with the majority opinion and in the judgment, joined by Associate Justice Neil Gorsuch.

In brief: In 2011, Wisconsin adopted a plan for state legislative district boundaries, Act 43, under which elections to the Wisconsin state legislature were held during the 2012, 2014, and 2016 election cycles. The petitioners, 12 registered Democrats in Wisconsin, alleged that the redistricting plan intentionally and systematically diluted the voting strength of Democratic voters statewide in elections to the state legislature, resulting in an unconstitutional partisan gerrymander. A divided three-judge panel of the United States District Court for the Western District of Wisconsin, convened under 28 U.S.C. §2284, agreed with the petitioners and invalidated Act 43. The Supreme Court of the United States prevented enforcement of that decision pending arguments before the court on the merits. Argument in the case was held on October 3, 2017.

Why it mattered: Had the Supreme Court affirmed the district court's ruling, it would have marked the first time that the high court had struck down a redistricting plan on the grounds of illegal partisan gerrymandering. In contrast with racial gerrymandering, on which the Supreme Court had issued rulings in the past affirming that such practices violate federal law, the court had never issued a ruling establishing clear precedent on the question of partisan gerrymandering at the time it heard and decided Gill. According to The Wall Street Journal, in an article discussing Gill v. Whitford, "Some Supreme Court justices have previously expressed concern about partisan gerrymandering, but a majority of the court has been hesitant to intervene so directly in the American political process and to say how much partisanship is too much."

You can review the court's opinion here.

Background

This was a case about whether a redistricting plan creating geographic district boundaries for elected seats to the Wisconsin state legislature unconstitutionally violated the rights of Wisconsin voters under the First and Fourteenth Amendments to the United States Constitution. The specific question in this case was whether the redistricting plan, known as Act 43, intentionally and systematically diluted the voting strength of Democratic voters statewide in elections to the state legislature. Act 43 was adopted by both the Wisconsin State Assembly and Wisconsin State Senate, and was signed into law on August 23, 2011, by Gov. Scott Walker (R). Elections in 2012, 2014, and 2016 were held under Act 43.

Redistricting in Wisconsin

See also: Redistricting in Wisconsin

The United States Constitution vests the authority to draw state legislative geographic district boundaries with the states in a process that is known as redistricting. Redistricting occurs every 10 years after a census is taken. Wisconsin law provides that the state legislature is responsible for constructing and implementing redistricting plans. When this case came before the U.S. Supreme Court, Wisconsin was divided into 33 state senate districts, each of which contained three state assembly districts. Each senate district was entitled to one senator; each assembly district was entitled to one assemblyman or assemblywoman. The Wisconsin State Senate comprised 33 senators and the Wisconsin State Assembly comprised 99 members. Any redistricting plan was subject to state and federal law. In particular, districts in Wisconsin, as in all states, must have been approximately equal in population and were subject to Section 2 of the Voting Rights Act to ensure the voting power of minority voters.

Before Wisconsin adopted the redistricting plan known as Act 43, federal courts in Wisconsin had drawn state legislative district boundaries for every election cycle since the 1980 census. The reason for this was that Wisconsin voters elected a divided government, a situation in which at least one chamber of the state legislature and the governorship were controlled by different political parties. Wisconsin's elected officials could not agree to a redistricting plan to govern state legislative district boundaries after the 1980, 1990, or 2000 census.

In 2010, Wisconsin's voters returned a Republican trifecta. A trifecta occurs when one political party holds the governorship, a majority in the state senate, and a majority in the state house in a state's government. Republican Scott Walker was elected governor in 2010. That same year, Republicans gained a majority in both chambers of the state legislature.

Act 43

Upon completion of the 2010 census, the Wisconsin state legislature began the process of redistricting. Over the course of over 18 months, several redistricting plans were proposed. A final draft plan, referred to in court documents as the Team Map, "demonstrated that Republicans would maintain a majority under any likely voting scenario; indeed, they would maintain a 54-seat majority while garnering only 48 percent of the statewide vote. The Democrats, by contrast, would need 54 percent of the statewide vote to capture a majority." Prior to a final vote on the Team Map's adoption, two separate challenges against the plan were brought in federal district court. The court consolidated the challenges. While the court did find that the plan violated Section 2 of the Voting Rights Act in that the plan diluted the voting strength of Latino voters in Milwaukee County, the court upheld the remainder of the plan. The court ordered that the districts in Milwaukee County were to be redrawn; the remainder of Act 43 remained intact. It was under this map that elections during the 2012, 2014 and 2016 election cycles were held. Republicans maintained their majority in the Wisconsin State Senate after the 2012 election, but increased their majority in 2014. Republicans increased their majority in the Wisconsin State Assembly after both the 2012 and 2014 elections.

Plaintiffs' challenge

Twelve residents of Wisconsin who were United States citizens, were registered to vote in the state, and who claimed to be "supporters of the Democratic party and of Democratic candidates and ... almost always vote for Democratic candidates in Wisconsin elections" (hereafter, the plaintiffs) filed a challenge to the redistricting plan in federal district court. The plaintiffs claimed that Act 43 constituted an illegal partisan gerrymander; that is, they claimed that Act 43 was drawn with the intent and purpose of giving Republican candidates an advantage over all other candidates in elections to the Wisconsin state legislature. In so doing, the plaintiffs claimed that their First and Fourteenth Amendment rights were violated because Act 43 "discriminates against Democratic voters by diminishing the strength of their votes in comparison to their Republican counterparts".

Cracking and packing

The plaintiffs alleged that Republicans employed two gerrymandering techniques when drafting Act 43 in order to dilute the votes of Democrats statewide. The first, known as cracking, occurs when a political party's supporters are divided across multiple legislative districts such that the party's supporters cannot attain a majority in any one district. The second, known as packing, occurs when a political party's supporters are concentrated into a smaller number of districts such that the party's candidates win by overwhelming margins. The plaintiffs alleged that "this 'cracking and packing result[ed] in wasted votes: votes cast either for a losing candidate (in the case of cracking) or for a winning candidate but in excess of what he or she needs to prevail (in the case of packing)."

The efficiency gap

In alleging a partisan gerrymander, the plaintiffs requested that the district court adopt a new measure to determine the discriminatory effect of partisan gerrymanders. This measure, developed by scholars Nicholas Stephanopoulos and Eric McGhee, is known as the efficiency gap or EG. The efficiency gap is defined as "the difference between [political parties'] wasted votes, divided by the total number of votes cast in the election." In this context, wasted votes are defined as any votes that were cast for the losing party and any votes in excess of 50 percent of the total vote that were cast for the winning party.

How the efficiency gap works

The table below presents hypothetical vote totals for two parties vying for seats in five districts. Wasted votes come in two varieties: lost votes and excess votes. Lost votes are defined as all votes cast for the losing party. Excess votes are defined as all votes in excess of 50 percent cast for the winning party.

Hypothetical vote totals for efficiency gap calculations
Example	Total votes by party		Lost votes by party		Excess votes by party		Wasted votes by party
	Party 1	Party 2	Party 1	Party 2	Party 1	Party 2	Party 1	Party 2
District A	600	400	0	400	100	0	100	400
District B	400	600	400	0	0	100	400	100
District C	550	450	0	450	50	0	50	450
District D	600	400	0	400	100	0	100	400
District E	575	425	0	425	75	0	75	425
Totals	2,725	2,275	400	1,675	325	100	725	1,775

As demonstrated in the table above, Party 1 won four seats and wasted 725 votes. By contrast, Party 2 won one seat and wasted 1,775 votes, 1,050 more votes than Party 1. Taking the wasted vote discrepancy (1,050) and dividing by the total number of votes cast for both parties in all three districts (5,000), the efficiency gap equals 21 percent in favor of Party 1

The above calculations can also be expressed as a mathematical formula:

Efficiency gap = Seat margin - (2 x vote margin)

In this formula, the seat margin is defined as the share of seats won by a party minus 50 percent. The vote margin is defined as the share of votes received by a party minus 50 percent. Using the above example, Party A won 80 percent of the available seats and 54.5 percent of the total vote.

Efficiency gap = (80 percent - 50 percent) - (2 x [54.5 percent - 50 percent])

Efficiency gap = 30 percent - (2 x 4.5 percent)

Efficiency gap = 30 percent - 9 percent

Efficiency gap = 21 percent

A new standard for partisan gerrymandering cases

In asserting the use of the efficiency gap (EG) measure, the plaintiffs argued for a new, three-part test for determining whether a partisan gerrymander occurred. In order for a court to hold that redistricting plan was a partisan gerrymander, plaintiffs would need to both establish that a state had the intent to gerrymander for a partisan advantage and prove that a partisan effect was demonstrable through an EG greater than 7 percent. If plaintiffs were able to both establish intent and prove effect, then the redistricting plan could be held by courts to be presumptively unconstitutional. In that instance, the burden would fall on the state to "rebut the presumption by showing that the plan 'is the necessary result of a legitimate state policy, or inevitable given the state's underlying political geography.'" If the state could do neither, then the plan would be held unconstitutional. Based on this proposed test, the plaintiffs asserted that Act 43 was unconstitutional.

Defendants' response

In August of 2015, members of the state's election commission (hereafter, defendants) filed a motion to dismiss the lawsuit. The defendants asserted that the court could not grant relief to the plaintiffs for three reasons.

“

First, the defendants argued that the EG was directly analogous to the proportional-representation standard rejected by the Supreme Court in Vieth v. Jubelirer, 541 U.S. 267, 287–88 (2004). Second, the defendants argued that the EG failed to account for the impact of traditional districting criteria like contiguity and compactness. Finally, the defendants argued that the plaintiffs lacked the standing to challenge Act 43 on a statewide basis, and instead could only challenge their individual districts.

”

The district court denied the motion to dismiss in December of 2015. The defendants subsequently filed for summary judgment after the motion to dismiss was denied, arguing that the plaintiffs' test, particularly it's reliance on EG, was overinclusive and would hold districts unconstitutional based on very small swings in the district's electorate. The district court denied the motion for summary judgment, holding that factual disputes existed over both the EG measure and over evidence of partisan voter distribution across Wisconsin. As summary judgment is typically granted in the absence of factual disputes, the presence of disputes merited denying the motion.

Trial

A four-day trial was held from May 24 to May 28, 2016, in the United States District Court for the Western District of Wisconsin. Consistent with 28 U.S.C. §2284(a), which requires that "when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body," a three-judge panel adjudicated the dispute. 28 U.S.C. §2284(b) stipulates that any three-judge panel adjudicating cases falling under of §2284(a) must be composed of the judge to whom the complaint was first directed, as well as two judges selected by the chief judge of the judicial circuit in which the federal district court is located, of which one must be a circuit judge. The Western District of Wisconsin is located in the Seventh Circuit. The chief judge of the Seventh Circuit is Diane Wood. The panel that heard the case was composed of Seventh Circuit Judge Kenneth Ripple, Judge William Griesbach of the Eastern District of Wisconsin, and Judge Barbara Crabb of the Western District of Wisconsin, to whom the complaint was first directed.

District court opinion

Writing for himself and for Judge Crabb, Judge Ripple announced the judgment of a divided 2-1 panel. After a factual and procedural review of the trial record, Ripple began his legal analysis by noting a difficulty facing the panel. He wrote,

“

in resolving the plaintiffs’ claim, we face a significant analytical problem. Although the Supreme Court’s political gerrymandering cases establish that 'an excessive injection of politics is unlawful,' ... the Court has not come to rest on a single, judicially manageable or discernible test for determining when the line between 'acceptable' and 'excessive' has been crossed. Indeed, a signature feature of these cases is that no single opinion has garnered a majority of the Court. But the absence of a well-trodden path does not relieve us of the obligation to render a decision. True, we cannot anticipate that the Court will alter course from the decisional law, however sparse, that currently exists. ... Nor can we cobble together the opinions of the various Justices who have written on the matter and call the resulting amalgam binding precedent. ... Nevertheless, understanding that we are in an area where the navigational signs are not yet well-placed, we must decide the case before us and satisfy our 'duty … to say what the law is,' ... or at least what we believe it to be.

”

Given this difficulty, Judge Ripple largely adopted the proposed three-part test the plaintiffs proposed in this case, arguing "that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds." In adopting these criteria, Judge Ripple held that Wisconsin's Act 43 constituted an unconstitutional partisan gerrymander.

Intent and effect

In his opinion for the panel, Judge Ripple acknowledged that "an intent to entrench a political party in power signals an excessive injection of politics into the redistricting process that impinges on the representational rights of those associated with the party out of power. Such a showing, therefore, satisfies the intent requirement."

Though Judge Ripple relied on the EG evidence in reaching his decision, he did not suggest that EG should be required in future partisan gerrymandering cases in order to prove a partisan effect. Ripple held that the trial record demonstrated that "one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power. ... it is clear that the drafters got what they intended to get. ... Act 43 burdens the representational rights of Democratic voters in Wisconsin by impeding their ability to translate their votes into legislative seats, not simply for one election but throughout the life of Act 43."

Justifiable state interest?

Having asserted that the plaintiffs demonstrated the required intent and effect sufficient to mount a partisan gerrymandering charge against Act 43, the burden fell to the defendants to justify the redistricting plan by "whether it can be explained by the legitimate state prerogatives and neutral factors that are implicated in the districting process." In this, Judge Ripple held that the defendants' failed to meet this burden. While Judge Ripple acknowledged that "Wisconsin's political geography, particularly the high concentration of Democratic voters in urban centers like Milwaukee and Madison, affords the Republican party a natural, but modest, advantage in the districting process," the court held that this advantage could not explain the partisan effect of Act 43's redistricting map.

Plaintiffs standing?

The panel majority addressed the argument of whether the 12 plaintiffs, representing 12 different districts, had standing to assert a statewide challenge. The court held that the plaintiffs met the standards for standing required by the U.S. Supreme Court's decision in Lujan v. Defenders of Wildlife. Lujan requires a plaintiff to have an injury-in-fact that is actual or imminent and not hypothetical, establish a causal connection between the alleged injury and the defendant(s)' action(s), and demonstrate that the injury is likely to be resolved by a favorable court decision.

Dissent

Writing for himself, Judge William Griesbach dissented from the panel majority. He objected to what he referred to as the court's "newly created test: whether the State’s redistricting plan had the intent and effect of entrenching the Republican party in power over the life of the plan" In Judge Griesbach's view, the court moved away from a standard elucidated in the U.S. Supreme Court's ruling Vieth v. Jubelier that statewide districting challenges are rooted in claims that individual districts themselves are illegally drawn. Judge Griesbach argued that the plaintiffs failed to do this and that this was intentionally done. He wrote,

“

instead of pointing to specific districts that had been gerrymandered, they relied on statewide data and calculations, as well as spreadsheets, metadata, graphs and charts, all without referring to any actual maps or lines drawn by the Defendants. ... This was not an oversight. The reason for the absence of any discussion of individual district lines is that Act 43 does not violate any of the redistricting principles that traditionally govern the districting process, including compactness, contiguity and respect for political boundaries like counties and cities. In other words, unlike every other gerrymandering case to come before the courts, the plaintiffs did not argue that Act 43 created any districts with unusual lines or shapes. Nor were there appreciable problems with contiguity, compactness, or regard for political boundaries. Act 43’s districts split more counties than previous plans, but the plan splits fewer municipalities than the 1990s map. The current plan’s compactness scores are comparable to previous plans, and there is no indication that any districts had problems with contiguity. At trial, it was undisputed that the drafting of the current plan placed the correct number of citizens into each district and also took into account other more practical (and legitimate) concerns, such as the number of voters who would be disenfranchised in upcoming senate elections, as well as the residences of the actual legislators whose district boundaries were changing—factors none of the theoretical plans considered. In short, although the Plaintiffs argued that their own demonstration map created similarly compact and contiguous districts with less partisan effect, they conceded that the districts drawn by Act 43 are sufficiently compact, contiguous and respectful of political boundaries. ... Gerrymandering, as the term’s etymology suggests, has traditionally been understood as the drawing of unusually-shaped districts in order to achieve a political advantage. ... Without evidence of any distortion of otherwise legitimate district boundaries, there is no gerrymander, at least as the term is traditionally understood.

”

Vieth v. Jubilier

Judge Griesbach wrote that, in his view, the majority's opinion was inconsistent with Vieth. In discussing each of the Supreme Court justices on the Vieth court, Judge Griesbach felt that the plaintiffs' test was unsustainable. He wrote, "in Vieth, four justices found political gerrymandering claims non-justiciable, meaning that they believed courts should not even get involved in such cases. Of the remaining five justices who would consider such claims ... a majority would require adherence to traditional districting principles as part of any test. ... This is hardly fertile ground for the kind of test Plaintiffs propose. Every Justice who has expressed an opinion on the subject would reject the Plaintiffs’ claim either because it is non-justiciable; because the challenged plan did not involve minority party entrenchment; or because the Plaintiffs failed to show that the Defendants violated traditional districting principles in some meaningful way. If this case were before the Vieth Justices, the Plaintiffs would likely lose 9-0."

Stay pending appeal

The court declined to order a remedy when it first issued its ruling on November 21, 2016. Instead, the court ordered the parties involved in the case to submit briefs outlining recommended remedies within 30 days. Through a series of filings, the court entered a corrected judgment on March 15, 2017. Nine days later, the defendants filed a petition for the U.S. Supreme Court to hear the case. The court announced on June 19, 2017, that they would hear the case and issued an order preventing enforcement of the panel opinion via a judicial stay.

Petitioners' challenge

Beverly R. Gill et al., members of the state's election commission and the petitioners in this case, challenged the holding of the Western District of Wisconsin panel. Gill et al. argued that the court correctly determined whether Act 43 was an unconstitutional partisan gerrymandering scheme for state legislative elections in Wisconsin.

Certiorari granted

On March 24, 2017, Beverly R. Gill et al., the petitioners, initiated proceedings in the Supreme Court of the United States in filing a statement as to jurisdiction in the U.S. Supreme Court. In lieu of a decision on jurisdiction, the court instead consented to a hearing on the merits on June 19, 2017. That same day, via a court-ordered stay, the court stopped the Western District of Wisconsin's ruling from taking effect pending arguments before the U.S. Supreme Court. Argument in the case was held on October 3, 2017.

Questions presented

Questions presented: "1. Did the district court violate Vieth v. Jubelirer, 541 U.S. 267 (2004), when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis? 2. Did the district court violate Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles? 3. Did the district court violate Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer, 478 U.S. 109 (1986)? 4. Are Defendants entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed? 5. Are partisan-gerrymandering claims justiciable?

Audio

• Audio of oral argument:
  

Transcript

• Transcript of oral argument:

Outcome

Decision

On June 18, 2018, the Supreme Court of the United States ruled unanimously that the plaintiffs had failed to demonstrate standing to bring a complaint under Article III of the United States Constitution. The court remanded the case to the district court for further proceedings.

Majority opinion

Chief Justice John Roberts penned the court's majority opinion, which was joined by Associate Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor, and Elena Kagan. Roberts wrote the following explanation of the three-part test utilized by the court to determine whether a plaintiff has demonstrated Article III standing:

“	To ensure that the Federal Judiciary respects 'the proper—and properly limited—role of the courts in a democratic society,' a plaintiff may not invoke federal court jurisdiction unless he can show 'a personal stake in the outcome of the controversy.' A federal court is not 'a forum for generalized grievances,' and the requirement of such a personal stake 'ensures that courts exercise power that is judicial in nature.' We enforce that requirement by insisting that a plaintiff satisfy the familiar three-part test for Article III standing: that he '(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.' Foremost among these requirements is injury in fact—a plaintiff's pleading and proof that he has suffered the 'invasion of a legally protected interest' that is 'concrete and particularized,' i.e., which 'affect[s] the plaintiff in a personal and individual way.'	”
—Chief Justice John Roberts

Roberts went on to explain the court's reasoning for finding that the plaintiffs had failed to meet this test:

“	The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest 'in their collective representation in the legislature' and in influencing the legislature's overall 'composition and policymaking.' But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing. On the facts of this case, the plaintiffs may not rely on 'the kind of undifferentiated, generalized grievance about the conduct of government that we have refused to countenance in the past.'	”
—Chief Justice John Roberts

Roberts noted that the court was not weighing in on the justiciability of partisan gerrymandering claims. Roberts wrote the following, explaining the court's decision to remand the case to the district court for further proceedings:

“	In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff's claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. ... We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual voters. We express no views on the merits of the plaintiffs' case.	”
—Chief Justice John Roberts

Concurrence by Associate Justice Kagan

Associate Justice Elena Kagan penned a concurring opinion that was joined by Associate Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Kagan wrote the following in her concurrence:

“	The Court's opinion is about a suit challenging a partisan gerrymander on a particular ground—that it dilutes the votes of individual citizens. That opinion 'leave[s] for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.' And in particular, it leaves for another the day the theory of harm advance by Justice Kennedy in Vieth: that a partisan gerrymander interferes with the vital 'ability of citizens to band together.' Nothing about that injury is 'generalized' or 'abstract,' as the Court says is true of the plaintiffs' dissatisfaction with the 'overall composition of the legislature.' A suit raising an associational theory complains of concrete 'burdens on a disfavored party' and its members as they pursue their political interests and goals. And when the suit alleges that a gerrymander has imposed those burdens on a statewide basis, then its litigation should be statewide too—as to standing, liability, and remedy alike.	”
—Associate Justice Elena Kagan

Concurrence by Associate Justice Thomas

Associate Justice Clarence Thomas penned a concurring opinion that was joined by Associate Justice Neil Gorsuch. Thomas wrote the following in his concurrence:

“	I join parts I and II of the Court's opinion because I agree that the plaintiffs have failed to prove Article III standing. I do not join Part III, which gives the plaintiffs another chance to prove their standing on remand. When a plaintiff lacks standing, our ordinary practice is to remand the case with instructions to dismiss for lack of jurisdiction. The Court departs from our usual practice because this is supposedly 'not the usual case.' But there is nothing unusual about it. As the Court explains, the plaintiffs' lack of standing follows from long-established principles of law.	”
—Associate Justice Clarence Thomas

Aftermath

Reactions

The following is a sample of reactions to the court's rulings in Gill v. Whitford and Benisek v. Lamone, another partisan gerrymandering case decided on June 18, 2018:

“	The case [Gill v. Whitford] is very much still alive. We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with. When legislators draw voting maps to favor one party over another and to stay in power, voters no longer have a voice in the political process. Extreme partisan gerrymandering is increasingly getting worse – damaging our democracy and eroding voters’ confidence in our system. We will continue advancing efforts, in this case and others as well as through the political process, to end this practice and safeguard every citizen’s fundamental right to vote and have it count.	”
—Paul Smith, vice president of litigation and strategy at Campaign Legal Center (CLC), who argued the case before the court on behalf of the plaintiffs

“	Here's the problem: the Court made clear that an individual's claim of vote dilution [in Gill v. Whitford] cannot be based on the fact that maps have been drawn in a way that diminishes the statewide prospects for that voter's preferred political party. The majority held that the plaintiffs interest 'in their collective representation in the legislature,' and in influencing the legislature’s overall 'composition and policymaking' does not constitute "an individual and personal injury of the kind required for Article III stand­ing. If that's true, then plaintiffs are going to have to show some constitutional violation in the drawing of their individual district and that harm cannot be inferred from a statewide impact. While Justice Kagan's decision suggests that demonstrating that another set of statewide maps would have resulted in more 'balanced' districts might do the trick, conferring standing on plaintiffs whose districts 'could be' made more competitive, Chief Justice Roberts decision suggests otherwise. The Court punted, but it may have hit the coffin corner.	”
—Rick Esenberg, president and general counsel at the Wisconsin Institute for Law and Liberty, which filed amicus briefs in the case supporting the constitutionality of the existing maps

“	The outcomes in Gill and Benisek are obviously a major disappointment for voting rights advocates. But these rulings don’t extinguish hope for a solution; Kagan’s concurring opinion lights a path forward that the Wisconsin plaintiffs should follow. It’s notable, though, that Kennedy declined to join her opinion, indicating that the justice may have given up hope on identifying a standard to help the court distinguish especially bad gerrymanders. Without Kennedy’s vote, opponents of political redistricting may well be doomed. On the other hand, Kennedy (along with Roberts and Alito) declined to dismiss Gill outright, suggesting that the justice might welcome another challenge. All in all, Gill and Benisek leave advocates roughly where they started: feeling around in the dark for a brilliant solution to this enduring problem that can garner five votes on the Supreme Court.	”
—Mark Joseph Stern, for Slate

“	[The decision in Gill v. Whitford] is a punt in the sense that the plaintiffs will get another shot and that the court hasn’t definitively closed off the idea of judicial intervention in partisan gerrymandering. But Gill makes the effort much more difficult[.] ... As it should. Redistricting is a political process, with very few crossovers to the judiciary, and those are limited to issues involving immutable characteristics. It would have been preferable for the court to throw the case out entirely, but it appears that Chief Justice John Roberts wanted the court to remain as unanimous on this decision as possible. The resulting precedent accomplishes much of the same effect, however. It will be difficult for the court to take its other partisan gerrymandering cases and apply this standard to any other outcome than dismissal.	”
—Ed Morrisey, for Hot Air

“	Alex Bickel would be proud of SCOTUS in today's gerrymandering decisions. By invoking procedural limits (like standing), the Court is causing a clarification of the merits of the claims plaintiffs are (and potentially will) make, leading to better decisions. Good for democracy.	”
—Ned Foley, Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law at the Ohio State University

“	Redistricting punt means decisions still possible in 2019. But more delay means more problems. Decision now means guidance for 2021 [without] redrawing [maps]. Decision in 2021 means redrawing 1000s of districts.	”
—Justin Levitt, Professor of Law at Loyola Law School, Los Angeles

Amended complaint

On September 14, 2018, in response to the high court's ruling in Gill, the plaintiffs filed an amended complaint in the United States District Court for the Western District of Wisconsin. Also on September 14, 2018, the Wisconsin Assembly Democratic Committee filed a similar but separate suit in the same court.

See also

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  Supreme Court cases, October term 2017-2018

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  Supreme Court of the United States

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  History of the Supreme Court