In the past two weeks, federal district courts have struck down partisan gerrymanders in both Michigan and Ohio. As a matter of legal doctrine, these decisions are important. As Nick Stephanopoulos states, they reveal an emerging consensus among lower courts on the standards for partisan gerrymandering and they show that judges across the political spectrum can faithfully apply these standards even in an era of growing judicial polarization. In short, they belie the arguments that judicially manageable standards do not exist or cannot be applied in a relatively apolitical manner. (The Ohio court even suggests that partisan-gerrymandering claims cannot be rendered categorically nonjusticiable consistent with Article III.)
As a practical matter, however, the decisions might have little impact. Both the Michigan and Ohio decisions were quickly appealed, and stays have been requested in both cases. As Rick Hasen suggests, the Supreme Court seems likely to grant stays in both pending its ruling in the North Carolina and Maryland cases. If the remedial process is dragged out long enough, the plaintiffs might miss their chance at relief before the 2020 election even if the Supreme Court affirms in the North Carolina and/or Maryland cases. Plaintiffs in a racial gerrymandering case from North Carolina faced a similar fate a few years ago when the Supreme Court held a case for months without action.
Nowadays, Plaintiffs in redistricting cases face an obstacle course of procedural rules (the Lipscomb principle, the Growe principle, the Abrams/Perry principle, the Upham principle, and the Purcell principle) that make rolling appeals/stays an effective strategy for legislators trying to parlay their ill-gotten gains into the next election cycle. The Supreme Court made this obstacle course even more difficult with its decisions last term in Abbott v. Perez and North Carolina v. Covington.
Is there anything district courts can do to help prevent such legislative gamesmanship when they find redistricting plans unconstitutional? Perhaps. In a forthcoming essay in the Journal of Law in Society, I offer a few strategic case-management suggestions for district courts looking to provide timelier relief. One that might’ve helped in Michigan and Ohio: provide declaratory relief alone when issuing a merits decision, and defer imposing any injunctive relief until a backup remedial plan has been generated.
In both the Michigan and Ohio decisions, the district courts concluded their holdings on the merits by enjoining future elections under the challenged districts. See Mich. Slip Op. 144 and Ohio Slip Op. 294. These injunctions trigger a direct appeal to the Supreme Court under 28 U.S.C. § 1253, which allows the defendants to pause the remedial process before it even has a chance to get underway. But this need not be how redistricting cases play out. The majority opinion in Abbott v. Perez applied an aggressive reading of 28 U.S.C. § 1253 that prevented the district court in that case from bifurcating the merits and remedies stages, but even the Abbott Court recognized that a State cannot always appeal a district court order holding a redistricting plan unlawful.
As the Abbott Court stated, “[a] finding on liability cannot be appealed unless an injunction is granted or denied, and . . . [i]f a plan is found to be unlawful long before the next scheduled election, a court may defer any injunctive relief until the case is completed.” 138 S. Ct. 2305, 2324 (2018) (emphasis added). By issuing its merits decision as a declaratory order and then developing and entering its injunctive orders soon thereafter, a district court can consolidate the review of all of its orders on appeal and constrain the power of litigants to string-out the remedial timeline through piecemeal appeals and successive requests for stays. Taking this approach might’ve allowed the district courts in Michigan and Ohio to have a remedial plan in hand before enjoining future elections, thereby increasing the odds of timely relief.
These suggestions are not limited to partisan gerrymandering cases. No matter what the Supreme Court decides this term, plaintiffs will still bring plenty of redistricting lawsuits in the years ahead, including one-person one-vote claims, racial vote-dilution claims, and racial sorting claims. If district courts are going to provide timely relief in these cases, they’ll need to start adopting case-management methods that minimize the ability of states to manipulate the judicial process. And if the Supreme Court does adopt a partisan gerrymandering standard this June, the district courts in Michigan and Ohio will need to act especially fast if voters are to see any relief in 2020. Hopefully it won’t be too late.