Inside Track: Gerrymandering: U.S. Supreme Court Remands Wisconsin Redistricting Case:

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    Gerrymandering: U.S. Supreme Court Remands Wisconsin Redistricting Case

    A landmark decision was expected. But the U.S. Supreme Court said the plaintiff Democrats lacked standing and remanded the case for another shot to prove it.

    Joe Forward

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    June 20, 2018 – The Wisconsin redistricting litigation will continue as the U.S. Supreme Court has unanimously ruled that plaintiff Democratic voters who challenged Wisconsin’s Republican-drawn voter district maps in 2011 lacked standing to bring the lawsuit. The High Court, on Monday, remanded the case to a three-judge federal panel.

    Although various justices filed separate writings, all agreed that plaintiffs failed to prove how a Wisconsin’s statewide redistricting plan caused individual and particularized harm, a requirement to surpass the standing hurdle in every case.

    “An individual voter in Wisconsin is placed in a single district. He votes for a single representative,” wrote Chief Justice John G. Roberts Jr. “The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. … In this case, the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district.”

    In other words, the U.S. Supreme Court said the plaintiffs’ had a “generalized grievance” in arguing that the Republican-drawn maps created an unconstitutional gerrymander on a statewide basis. But the court offered a consolation prize.

    A seven-justice majority noted that a failure to demonstrate standing usually results in a dismissal. “This is not the usual case,” Chief Justice Roberts wrote.

    The court remanded the case to a special three-judge panel in the U.S. District Court for the Western District of Wisconsin “so 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 votes.”

    Landmark Ruling was Expected

    The case, Gill v. Whitford, drew a national spotlight leading up to this decision. Many expected a landmark ruling that could have reshaped the redistricting landscape in the upcoming 2018 election cycle. This decision likely means more litigation in district court.

    Joe Forwardorg jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

    “This case is very much still alive,” attorney Paul Smith, who represented the Democrat plaintiffs, said in a press release. Smith argued the case before the Court last year.

    “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,” Smith noted.

    But the Wisconsin Institute for Law & Liberty (WILL), which filed an amicus brief in the case, suggested that plaintiffs will have a hard time moving forward.

    “It is fair to say – and many have been saying – that the Court punted. But that punt may well have pinned the plaintiffs deep inside their own territory,” said WILL President and General Counsel Rick Esenberg. “[P]laintiffs 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.”

    Wisconsin Attorney General Brad Schimel said he was “pleased that the highest court in the land has unanimously reversed the trial court’s erroneous decision invalidating Wisconsin’s Assembly map. Today is a win for the rule of law in Wisconsin. …”

    Wisconsin Solicitor General Misha Tseytlin argued the case on behalf of the defendants, members of Wisconsin’s Election Commission.

    Tseytlin told the justices last October that rejecting the Republican-drawn maps would “shift districting from elected public officials to federal courts, who would decide the fate of maps based upon battles of the experts.”

    Unpersuaded on Statewide Remedy

    The case originated in the U.S. District Court for the Western District of Wisconsin. A special three-judge panel ruled(2-1) that Republican lawmakers “systematically dilute[d] the voting strength of Democratic voters” and intentionally burdened their representation rights in violation of the U.S. Constitution when enacting the 2011 redistricting plans.

    Under federal law, redistricting cases are appealed directly to the U.S. Supreme Court. In district court, the Democrat plaintiffs were successful in arguing that the redistricting maps, redrawn by the Wisconsin Legislature every 10 years after the federal census, unconstitutionally “packed” and “cracked” Democrats for partisan advantage.

    That is, two of the three judges on the special panel agreed that Republicans could not purposefully pack Democrat voters into certain districts in which a Democrat was likely to win or spread them out (crack) over other districts to weaken their voting strength.

    The U.S. Supreme Court said a decision on the merits cannot proceed without standing, and the plaintiff Democrats did not have it. However, the Court still left a window ajar.

    “Here, the plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted,” wrote Chief Justice Roberts. “That harm arises from the particular composition of the voter’s own district, which causes his vote – having been packed or cracked – to carry less weight than it would carry in another, hypothetical district.”

    “Remedying the individual voter’s harm, therefore, does not necessarily require restructuring of all of the State’s legislative districts,” the Chief Justice continued.

    “It requires revising only such districts as are necessary to reshape the voter’s district – so the voter may be unpacked or uncracked, as the case may be.”

    The Court declined to decide the Democrat plaintiffs’ argument that they have suffered individually because the gerrymandered maps impact their “collective representation.”

    “We leave 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,” the chief justice wrote.

    The Court also rejected the “efficiency gap” calculation, developed by professors at the University of Chicago, as a way to measure “wasted votes” and identify unconstitutional gerrymandering. Again, the justices identified the problem of standing.

    “The difficulty for standing purposes is that these calculations are an average measure,” Chief Justice Roberts wrote. “They do not address the effect that a gerrymander has on the votes of particular citizens.

    “Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties.”


    Justice Elena Kagan wrote a concurring opinion, joined by Justices Ruth Bader Ginsburg, Steven Breyer and Sonia Sotomayor. They agreed that plaintiffs failed to prove standing, and the case should be remanded to give plaintiffs another shot.

    “I write to address in more detail what kind of evidence the present plaintiffs (or any additional ones) must offer to support that allegation. And I write to make some observations about what would happen if they succeed in proving standing. …”

    Justice Kagan said the case could still proceed for a statewide remedy if the plaintiffs made use of statewide evidence of packing and cracking in the various districts.

    “[P]artisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one,” Kagan wrote.

    Justice Clarence Thomas wrote a separate concurrence, joined by Justice Neil Gorsuch. They agreed that plaintiff Democrats lacked standing. But Justice Thomas said the case should be dismissed, not remanded for another chance to prove standing.

    “When a plaintiff lacks standing, our ordinary practice is to remand the case with instructions to dismiss for lack of jurisdiction,” Thomas wrote.

    Justice Thomas said the plaintiffs, after more than a year of litigation and a four-day trial, had “more-than-ample-opportunity” to prove standing and failed. “I would have remanded this case with instructions to dismiss,” Justice Thomas wrote.

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