The Supreme Court continues to jump head-first into the world of redistricting.  On June 19, 2017, the Court agreed to hear an appeal by the State of Wisconsin to the three-judge district court panel ruling which threw out the state’s legislative districts drawn after the 2010 census.  A divided three-judge panel held the Wisconsin plan was a result of partisan gerrymandering which was a violation of the Constitution’s 1st amendment.  After the Court agreed to hear the appeal, the Supreme Court issued another order, by a vote of 5 to 4, to stay the panel’s decision requiring Wisconsin to redraw districts in the fall of 2017.

The Supreme Court has not ruled on a partisan gerrymandering case since 2004.  The Court’s 2004 decision resolved little due to the split nature of the opinion.  Four justices held courts should not review partisan gerrymandering allegations while four other justices felt the Court should review these cases; however, these justices could not agree on a mechanism for this review.  Justice Kennedy sided with the four justices opposing review of the plan on a partisan basis but held open the possibility for future court review if an appropriate standard was applied.

In the present case, Whitford v. Gill, the lower court utilized a mathematical analysis to support its ruling that the maps were partisan maps in violation of the Constitution.  The Plaintiffs successfully argued the districts had been drawn in a manner that gave Republicans a large majority in the state legislature when the statewide vote was roughly equal.  The State of Wisconsin argued this had more to do with geography—i.e., most Democrats live in the two large urban areas while Republicans comprise the rest of the State.

Potential Impact of a Decision.   Either way the court rules, the decision should be a landmark decision guiding redistricting cases for the foreseeable future.   If the Supreme Court rules partisan gerrymandering claims are allowed, the decision tremendously will impact the drawing of districts after the 202o census.  States would not be allowed to use partisanship as a primary justification for the districts.  However, if the Court reverses the lower court and upholds the Wisconsin districts, it potentially would limit challenges based on partisan politics, therefore, districts drawn by the majority party would favor themselves over the next redistricting cycle.

Interestingly, rumors are floating around that Justice Kennedy might step down in the near future which if proven true, would make it more difficult for future challenges based on partisan gerrymandering.   However, Justice Kennedy’s vote to stay the lower court’s mandate to redraw the districts this fall, might be a precursor to his vote on the merits of the case so his predicted retirement might not matter.

Stay tuned for a huge legal battle with huge political overtures.