In 2004, Justice Scalia led a plurality in Vieth v. Jubelirer that attempted to affirmatively hold partisan gerrymandering claims to be “non-justiciable” due to the (supposed) lack of “manageable standards” for adjudicating such claims.  The late Justice, however, failed to convince a key fifth vote: Justice Kennedy.  Kennedy wanted to hold out hope rather than definitively and permanently closing the door to the possibility of a future claim.

            Chief Justice Roberts’ decision in Gill v. Whitford takes this lesson to heart along with some other wisdom from 2004: the importance of mastering the ability to dodge, duck, dip, dive, and dodge.  Although the Gill decision purports to leave a path open to litigants and avoid the question of justiciability, Slip Op. 13, the Chief may have recognized that if he can dodge the claim long enough, it will perish all the same.  Providing an endless or impossible path has the same effect on litigants as providing no path at all, and yet it allows Kennedy to remain a champion—right through to retirement.

            In the majority opinion, Roberts clothes classic manageability arguments in the language of Article III standing and the constitutional limits of federal judicial power (a not-so-subtle nod to one of Kennedy’s core concerns).  For example, Roberts frames both symmetry and the concept of vote dilution itself as involving “hypothetical” states of affairs, see Slip Op. 12, 16, before going on to emphasize that any “burden on the plaintiffs’ votes [must be] ‘actual or imminent, not conjectural or hypothetical,’” Slip Op. 19.  Roberts also emphasizes that the harm must “affect the plaintiff in a personal and individual way,” Slip Op. 13, while discounting the ability of existing partisan affiliation analyses to sufficiently carry that burden, see Slip Op. 20 (arguing that symmetry measures “are an average measure” and “do not address the effect that a gerrymander has on the votes of particular citizens”); Slip Op. 21 (remanding so that “the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes”) (emphasis added).

            These formulations seem to demand more than a repackaging of plaintiffs’ existing evidence.  Justice Kagan (and I)[1] may believe that the plaintiffs should be able to take their “mass of packing and cracking proof” and “now . . . present [it] in district-by-district form to support their standing,” Kagan Op. 6, but it is worth taking a sober look at which opinions Justice Kennedy did (and did not) join.  In the meantime, it is unclear what kinds of evidence would satisfy Roberts’ standing requirement for an individual vote dilution claim—and the fact that it could take years to find out may well be the point.

            Yet, an appeal out of North Carolina (that was just set for a conference in the days ahead)[2] may still throw a wrench in the Chief’s plans.  Not only did the district court in the North Carolina case hold that the plaintiffs had both statewide and district-by-district standing, see App-40-41, n.9, the North Carolina case also addressed another theory of harm altogether—one grounded in associational rights, see App-37 n.8 (“Plaintiffs in the present case do not merely allege harm stemming from a congressional delegation whose partisan makeup does not reflect that of the state as a whole. Plaintiffs testified to a statewide chilling of association and discourse between Democrats and Republicans—both within each party and across party lines—due to the lack of competitive districts.  This drove down voter registration, voter turnout, and cross-party political discussion and compromise.  Furthermore, the disfavored political party suffered from statewide decreases in fundraising and candidate recruitment, while at the same time incurring increased statewide costs for voter education and recruitment.”).  See also App-39 (“Partisan gerrymandering also implicates additional, non-district-specific First Amendment harms, such as infringing on the right to associate with likeminded voters to fund, attract, and elect candidates of choice.”).

            It is perhaps no coincidence that Kagan—leading a group of four Justices—described the potential for a separate, statewide, associational claim in terms seemingly tailored to this separate basis for standing.  See Kagan Op. 9 (noting that “Members of the ‘disfavored party’ in [a] State, deprived of their natural political strength by a partisan gerrymander, may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office”).  In short, the Supreme Court may face a test of Justice Kagan’s associational claim theory at the very top of the next Term.

            Would Justice Kennedy be amenable to such an approach?  Only time will tell, but there are a few reasons for cautious optimism.  First, while the Chief Justice’s opinion laid out a potentially difficult path for individual vote dilution claims going forward, the opinion had almost nothing to say about Justice Kagan’s associational theory, stating, “We leave 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.”  Slip Op. 16.  This clean reservation could have been the price of Justice Kennedy’s unqualified join.  (Indeed, Justice Kennedy’s opinion in Vieth was the original source of the “First-Amendment-focused” approach to partisan gerrymandering claims—a point Justice Kagan did not hesitate to highlight in her concurring opinion.)

            Second, the facts in the North Carolina case are almost too extreme to comprehend.  The NC General Assembly’s Joint Select Committee on Congressional Redistricting formally adopted districting criteria that expressly included a provision entitled “Partisan Advantage,” which stated that the Committee “shall make reasonable efforts to construct districts” that result in a congressional delegation of “10 Republicans and 3 Democrats.”  When presented with a similar “hypothetical” by Justice Kennedy at oral argument, even the defendants in Gill and Benisek conceded that such a law would be unconstitutional.

            Finally, for all of her citations to Kennedy’s opinions, Justice Kagan left out one that might end up being quite significant: Citizens United.  The district court in North Carolina repeatedly cited Citizens United as support for its First Amendment holding, arguing, for example, that “partisan gerrymandering runs afoul of the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers.” App-167.  Will Justice Kennedy use the North Carolina case as an opportunity to try and frame Citizens United in a new light, perhaps drawing former foes into gritting agreement over some of that case’s broader principles?

            The days ahead may offer our best opportunity to gauge whether a judicial remedy is just around the corner, or whether there is no end in sight.  If any case can derail the Chief Justice’s new approach to standing in partisan gerrymandering claims, it’s the North Carolina case.  Then again, if he can dodge this wrench, he can dodge them all.

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[1]While I am decidedly biased, there is a lot to love about Justice Kagan’s proposed approach to the individual vote dilution claim: she notes that “[t]he point is that the plaintiff can show, through drawing alternative district lines, that partisan-based packing or cracking diluted her vote” and that “[t]he precise numbers are of no import,” Kagan Op. 5; she recognizes the distinct concept of “[i]llicit partisan intent—a purpose to dilute [targeted citizens’] votes in drawing district lines,” Kagan Op. 6 (emphasis added); and she draws a parallel to racial gerrymandering case law to point out that statewide evidence “‘is perfectly relevant’ to showing that mapmakers had an invidious ‘motive’ in drawing the lines of ‘multiple districts in the State,’” Kagan Op. 7.  This approach offers a clear and coherent way to harmonize political gerrymandering case law with racial gerrymandering case law.

[2] The Court set another long-pending NC partisan gerrymandering case (16-166) for conference on June 21, 2018 as well.  Interestingly, this case also presents an issue raised in this Term’s racial gerrymandering case: when is a court’s order the functional equivalent of an injunction?  In 16-166, the NC legislature adopted a politically gerrymandered map as a replacement for the racially gerrymandered map that had been struck down.  Plaintiffs raised objections to the remedial map, which the district court rejected.  Plaintiffs argued that the district court’s order was the functional equivalent of an injunction and have been waiting on an answer ever since.