Court sidelines gerrymander cases

By February, clues were in plain sight that the Supreme Court was not inclined to hand down a “big” landmark decision this term on gerrymandering. That was confirmed yesterday when the Court got both cases off its plate without reaching the merits, instead disposing of them for now on issues of standing (Gill v. Whitford, Wisconsin) and timing (Benisek v. Lamone, Maryland). Strikingly, both decisions were unanimous as to result, a clue as to the carefully limited scope of what was decided, and both cases can continue in the courts below with their legal theories mostly intact. “The Court has kicked the issue of partisan gerrymandering down the road. States shouldn’t,” I write in a new Cato commentary on the decisions.

One Comment

  • Isn’t it curious that the case was remanded rather than dismissed, as Justices Thomas and Gorsuch argued. The case goes back to the same three judge panel that ruled for the plaintiffs in the first place. There would be no bar to the plaintiffs (or an equivalent group) to bring a new lawsuit urging the issues that the concurrence set forth. The consequence is that a panel favorable to the plaintiffs still has the case. Was this intentional? Another consequence might be that much time could be saved on re-litigation since much of the discovery and testimony of experts can probably be re-used.

    The further consequence may well be that the case can come back before the Court much earlier with a plaintiff victory being the result of the lower court judgment. I presume this is something the concurrence would like. The curious thing is why the majority decided this was an appropriate course of action. (Possibly Justice Kennedy wanted the case to come back before the decennial redistricting. Who knows).