SCOTUS punts on two gerrymandering cases

The U.S. Supreme Court began the day with 19 argued cases yet to be decided. This included two of the most highly anticipated cases of this term involving political gerrymandering, Gil v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).

Today the U.S. Supreme Court disappointed everyone by punting on these two cases. It was an anticlimactic end to these gerrymandering cases, which are likely to return in the future with additional cases moving through the appellate courts pipeline.

In Gil v. Whitford (.pdf) Chief Justice Roberts held that “The plaintiffs have failed to demonstrate Article III standing.”

The right to vote is “individual and personal in nature,” Reynolds v. Sims, 377 U. S. 533, 561, and “voters who allege facts showing disad- vantage to themselves as individuals have standing to sue” to remedy that disadvantage, Baker, 369 U. S., at 206. The plaintiffs here al- leged that they suffered such injury from partisan gerrymandering, which works through the “cracking” and “packing” of voters. To the extent that the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, deter- mine whether and to what extent a particular voter is packed or cracked. A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.” United States v. Hays, 515 U. S. 737, 745.

Here, the plaintiffs’ claims turn on allegations that their votes have been diluted. Because that harm arises from the particular composition of the voter’s own dis- trict, remedying the harm does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district. This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U. S. 343, 357.

The plaintiffs argue that their legal injury also extends to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. To date, however, the Court has not found that this presents an individual and personal injury of the kind required for Article III standing. A citizen’s inter- est in the overall composition of the legislature is embodied in his right to vote for his representative. The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes. Pp. 12–17.

Normally this would result in a dismissal of the case, but not here.

Where a plaintiff has failed to demonstrate standing, this Court usually directs dismissal. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 354. Here, however, where the case concerns an un- settled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved, the case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. Cf. Alabama Leg- islative Black Caucus v. Alabama, 575 U. S. ___, ___. Pp. 21–22.

Importantly:

We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dis­ pensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. Cuno, 547 U. S., at 353.

The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

Justice Kagan wrote a concurring opinion joined by Justices Breyer, Ginsburg and Sotomayor which is a “how to” guide for the plaintiffs to establish standing and to get their case back in front of the Court.

Justice Kagan also noted:

And at some points in this litigation, the plaintiffs complained of a different injury — an infringement of their First Amend­ ment right of association. The Court rightly does not address that alternative argument: The plaintiffs did not advance it with sufficient clarity or concreteness to make it a real part of the case. But because on remand they may well develop the associational theory, I address the standing requirement that would then apply.

* * *

[P]artisan gerrymanders inflict other kinds of constitutional harm as well. Among those inju­ries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations, and their members. The plaintiffs here have sometimes pointed to that kind of harm. To the extent they meant to do so, and choose to do so on remand, their associational claim would occasion a different stand­ ing inquiry than the one in the Court’s opinion.

* * *

By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions.

And if that is the essence of the harm alleged, then the standing analysis should differ from the one the Court applies. Standing, we have long held, “turns on the nature and source of the claim asserted.” Warth v. Seldin, 422 U. S. 490, 500 (1975). Indeed, that idea lies at the root of today’s opinion. It is because the Court views the harm alleged as vote dilution that it (rightly) insists that each plaintiff show packing or cracking in her own district to establish her standing. See ante, at 14–17; supra, at 3–4. But when the harm alleged is not district specific, the proof needed for standing should not be district specific either. And the associational injury flowing from a statewide partisan gerrymander, whether alleged by a party member or the party itself, has nothing to do with the packing or cracking of any single district’s lines. The complaint in such a case is instead that the gerrymander has burdened the ability of like-minded people across the State to affiliate in a political party and carry out that organization’s activities and objects. See supra, at 8–9. Because a plaintiff can have that complaint without living in a packed or cracked district, she need not show what the Court demands today for a vote dilution claim. Or said otherwise: Because on this alternative theory, the valued association and the injury to it are statewide, so too is the relevant standing requirement.

* * *

But nothing in the Court’s opinion prevents the plain­tiffs on remand from pursuing an associational claim, or from satisfying the different standing requirement that theory would entail. 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.” Ante, at 16. And in particular, it leaves for another day the theory of harm advanced by JUSTICE KENNEDY in Vieth: that a partisan gerrymander interferes with the vital “ability of citizens to band together” to further their political beliefs. 541 U. S., at 314 (quoting California Democratic Party, 530 U. S., at 574). Nothing about that injury is “generalized” or “ab­stract,” as the Court says is true of the plaintiffs’ dissatis­ faction with the “overall composition of the legislature.” Ante, at 16. 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. Vieth, 541 U. S., at 315 (opinion of KENNEDY, J.); see supra, at 8–9. 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.

Justice Kagan concludes:

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, be­ cause we understood that “a denial of constitutionally protected rights demands judicial protection.” Reynolds, 377 U. S., at 566. Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens with­ out any political remedy for their constitutional harms.

So the plaintiffs in Gil v. Whitford are going to go through another evidentiary trial and the appellate process again, which means it may be at least another two years before this case will return to the Supreme Court.

The Court made short shrift of Benisek v. Lamone (.pdf) in an unsigned per curium opinion affirming the lower court. “This appeal arises from the denial of a motion for a preliminary injunction in the District Court,” not a decision on the merits of the case.

On August 24, 2017, the District Court denied plaintiffs’ motion and stayed further proceedings pending this Court’s disposition of partisan gerrymandering claims in Gill v. Whitford, No. 16–1161. 266 F. Supp. 3d 799. The District Court found that plaintiffs had failed to show a likelihood of success on the merits sufficient to warrant a preliminary injunction. Id., at 808–814. The District Court also held that it was “in no position to award [p]laintiffs the remedy they . . . requested on the timetable they . . . demanded.” Id., at 815.

* * *

Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate.

* * *

As a matter of equitable discretion, a preliminary injunction does not follow as a matter of course from a plaintiff’s showing of a likelihood of success on the merits. See id., at 32. Rather, a court must also consider whether the mov- ant has shown “that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id., at 20.

Plaintiffs made no such showing below. Even if we assume — contrary to the findings of the District Court — that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction.

First, a party requesting a preliminary injunction must generally show reasonable diligence . . . In this case, appellants did not move for a preliminary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed.

* * *

But [this] does not change the fact that plaintiffs could have sought a preliminary injunction much earlier. See Fishman, supra, at 1330. In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.

Second, a due regard for the public interest in orderly elections supported the District Court’s discretionary decision to deny a preliminary injunction and to stay the proceedings. See Purcell v. Gonzalez, 549 U. S. 1, 4–5 (2006) (per curiam). Plaintiffs themselves represented to the District Court that any injunctive relief would have to be granted by August 18, 2017, to ensure the timely com- pletion of a new districting scheme in advance of the 2018 election season. Despite the District Court’s undisputedly diligent efforts, however, that date had “already come and gone” by the time the court ruled on plaintiffs’ motion. 266 F. Supp. 3d, at 815. (Such deadline has also, of course, long since passed for purposes of entering a preliminary injunction on remand from this Court.)

* * *

At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. 266 F. Supp. 3d, at 815–816. In the District Court’s view, “charging ahead” and adjudicating the plaintiffs’ claims in that fluctuating legal environment, when firmer guidance from this Court might have been forthcoming, would have been a mistake. Id., at 816. Such a determination was within the sound discretion of the District Court.

* * *

In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

The order of the District Court is Affirmed.

So this case is remanded back to the district court to determine whether injunctive relief is warranted when the case is fully completed.

In addition to these cases from Wisconsin and Maryland, there are gerrymandering cases moving through the appellate courts pipeline from Texas, North Carolina, Pennsylvania, Michigan and Virginia.

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