The Supreme Court had a chance to rule on gerrymandering today but elected to punt instead. In one of the cases, emanating from my very own Maryland 6 which was gerrymandered from safe-Republican to safe-Democrat after the 2010 Census, a request for an injunction against the gerrymander was refused. Presumably, this case will wend its way through the courts in due time. The other case, Gill vs. Whitford, had the potential to be much more significant.

More than 30 years ago, the high court said that considering party affiliation too much in redistricting could cross the line into unconstitutional gerrymandering. But the Supreme Court provided little guidance and federal courts have since struggled to find where that line is.

As a result, states defending allegations that they unconstitutionally relied on race when drawing voting maps often say they were merely relying on politics.

That could end—or at least be seriously curtailed—if the Supreme Court decides to hear Gill v. Whitford.

There, Democratic voters challenging the maps in Wisconsin think they’ve found a way to measure when political consideration in redistricting crosses the line. And a lower court agreed.

Wisconsin Republicans unconstitutionally created maps that disadvantaged Democratic candidates when they drew up new voting maps in 2010, a special three-judge district court panel said in a stunning decision last November. The panel relied on a new standard—the “efficiency gap”—to measure that disadvantage.

That standard attempts to measure the efficiency with which the parties can elect their candidates by calculating the number of votes their voters “wasted.” An efficiency gap in favor of one party suggests that the other was disadvantaged in the voting process.

Now Wisconsin—supported by a dozen other states—is asking the Supreme Court to step in.

The new standard the lower court blessed doesn’t take into account political realities, they argue.

In short form, there are more registered Democrats than registered Republicans in Wisconsin but the state legislative districts are drawn to guarantee (all things being equal) a Republican majority in the legislature. The Democrats claim there is some sort of affirmative action program written into the Constitution that guarantees a party gets the number of seats in the state legislature in proportion to its statewide strength.

On this one, a unanimous court found the plaintiffs in the case didn’t have standing to sue and kicked the whole case out.

CJ writes Gill, ruling against challengers on standing. pic.twitter.com/W7pUR7F5ur

— Dan Epps (@danepps) June 18, 2018

Reading between the lines, it looks like declaring lack of standing was a way of avoiding a very nasty 5-4 fight. The kick, though, indicates the case will come back and, should the current court decide it, it could go either way. Kagan in particular, basically says she would rule for the plaintiffs and impose this quota system on the states and she helpfully draws the next plaintiffs a roadmap on how to get her vote.

Justice Kagan's concurrence in Gill is so great. I'm so happy she wrote separately to spell out the dangers of partisan gerrymandering & how courts may be the only ones to fix it:https://t.co/TZRfbnFCxs pic.twitter.com/Ktba34xaDm

— Leah Litman (@LeahLitman) June 18, 2018

Curiously, Kagan cites Benisek, a pending case, in her Gill concurrence. Suggestion is: (1) residents of packed/cracked districts likely *do* have standing; (2) Wisconsin residents could sue again on a district-by-district basis and cld win pic.twitter.com/QKdeDKNf1a

— Steven Mazie (@stevenmazie) June 18, 2018

Chief Justice Roberts is probably a no:

https://twitter.com/dchauptmann/status/1008721682247376896

Losing elections has consequences. One of those is getting your ass kicked at redistricting. I didn’t snivel about it when it happened to my district and I don’t respect people who do snivel about it. Hopefully, the Court will look a bit different when the next case shows up and we can stop this habit of using federal courts to gain what you can’t win at the ballot box.

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