Partisan gerrymandering: what the Court could do

At Five Thirty-Eight, Galen Druke provides a helpful breakdown of the different ways the Supreme Court might resolve or fail to resolve the Wisconsin and Maryland partisan gerrymandering cases, Gill v. Whitford and Benisek v. Lamone. Briefly, the Court could 1) find partisan gerrymandering unconstitutional, and accept the theory of either the Wisconsin or the Maryland case, which are quite different from each other; 2) find it unconstitutional and announce or at least gesture toward a standard other than those urged in the two cases; 3) duck the whole thing on grounds such as standing or mootness; 4) reject the Wisconsin and Maryland theories while leaving the door open (as in Vieth) for a future case to bring in the right theory; 5) reject the suits and all future claims of this sort as not justiciable, which would require Anthony Kennedy’s crossing to join the conservatives’ position in earlier cases; 6) kick the cases to next term, when they could be joined by a North Carolina case; or 7) splinter in some way that resolves the case without letting one of the above outcomes command five votes. A decision of some sort is expected by the end of the term June 25.


  • Care to handicap the above choice?

    • My own guess is that the Wisconsin “efficiency gap” approach will not persuade Justice Kennedy, without whom there is no majority. The Maryland First-Amendment-retaliation theory is more in line with what would tempt him, but getting from the theory to a practicable rule is not easy.