UPDATE: The Non-Outcome of the Wisconsin Gerrymandering Case

The expectation in the Wisconsin gerrymandering case (please see my earlier blog post for a refresher) was that the four liberal justices would vote to strike down what the Wisconsin Republicans did as being unconstitutional, that at least four conservative justices would vote that partisan gerrymandering was not judiciable, and that Reagan appointee Anthony Kennedy would cast the deciding vote.  However, the Court surprised everybody: the justices voted unanimously to send the case back to the district court which originally heard it, with instructions to deal with a problem that all nine of them agreed was there.

The plaintiffs, it should be recalled, feel that computerized gerrymandering to crack-and-pack the Democratic voters with the drawing of district lines in order to maintain a Republican majority in the state legislature even when a slight majority of voters statewide are Democrats, violates equal protection of the law under the Fourteenth Amendment.  So far so good.  However, it should be remembered that a person who brings a case must have a standing to sue rather than merely an opinion.  To have a standing to sue, one must be able to show injury, must be able to show that one has been personally adversely affected by the law being challenged.

From the Court’s point of view, the lower court did not adequately establish that the plaintiffs had been adversely affected.  Only one affected plaintiff actually testified.  So, rather than deal with the merits of the case, the court is declining to decide it until it can be persuaded that the plaintiffs’ standing to sue has been demonstrated.

This is surprising behavior on the part of the four Democratic appointees.  While they are frequently accused of putting ideology over law, they certainly can’t be accused of that now, because ideologically, they can’t possibly want partisan gerrymandering to continue, since–at least at the moment–it’s the Republican Party, aka the Party of Trump, that this practice works for.  What the Court has done is allowed for the case to come back in the future but not made any ruling at all about either whether partisan gerrymandering is a matter for courts to be involved with (judiciable) or whether this particular scheme in Wisconsin violates the Fourteenth Amendment.

And if the same case does come back to the Court, will Anthony Kennedy still be the swing vote?  That’s a nope.  Another recent announcement in the news is that Kennedy is retiring.  It should be remembered that Kennedy was nominated by a Republican president (Reagan) and confirmed by a Senate with a Democratic majority, a Senate that had refused to confirm a more conservative nominee (Robert Bork).  Kennedy, who has sometimes voted with the liberals (including on the gay marriage case of 2015), will most likely be replaced this summer by a more conservative justice appointed by Trump and confirmed by a Republican-majority Senate.  Kennedy, of course, voted with the conservatives on some key controversial cases (including Citizens United and the voting rights pre-clearance case), but he was a swing vote in a number of other cases where Trump’s justice probably won’t be.  So, it’s safe to expect the Court to be more conservative now–and conservatives are less likely to interfere with partisan gerrymandering.

Washington Post article, June 19, 2018

Full text of the decision

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