So far there has been no word on the outcome from the court, which issues decisions in its hardest cases as late as the end of June. There was, however, a tantalizing development late last week when the court agreed to hear a gerrymandering case out of Maryland this term. Benisek vs. Lamone involves a single congressional district drawn by Democrats to make it harder for Republicans to elect a member of Congress.
Setting a case like this for full argument is unusual. Ordinarily, when a second case presents an issue similar to one the court is already considering, the justices hold the second until the first has been decided, and then send it back to the lower court for further proceedings.
So what’s going on?
Maybe there is some technical problem with the Gill case — such as a lack of standing for the plaintiffs — that would prevent the court from deciding it on the merits. Maybe the court will rule that these cases must be decided on a district-by-district basis (as in Benisek) rather than on a statewide basis (as in Gill). Maybe the court does not like the efficiency-gap theory, and prefers the 1st Amendment argument offered in Benisek. (In brief, the theory is that when a legislature draws lines to minimize a political party’s voting strength, it interferes with the associational rights of the party’s voters, discriminating against them simply because they are Republicans or Democrats.)
After I posted my speculation on Twitter last week, a reader weighed in with another theory, one that I think may be the best of all: “Maybe they want to hear a challenge to a Democratic gerrymander in addition to the Wisconsin Republican gerrymander?”
The tweet reminded me of what Chief Justice John G. Roberts Jr. said during the Gill oral arguments about being forced into the business of choosing Democrats or Republicans. He said that if the “intelligent man on the street” sees the court siding with Democrats in one of these disputes, “it must be because the Supreme Court preferred the Democrats over the Republicans. And that’s going to come out one case after another as these cases are brought in every state. And that is going to cause very serious harm to the status and integrity of the decisions of this court in the eyes of the country.”
If the Supreme Court wants to use a Democratic gerrymander to declare partisan gerrymandering unconstitutional, I think I’m fine with that. The only problem would be if this was only applied to Democrats, which given the reality of the present is not impossible unfortunately. But Republican or Democratic, gerrymandering is a big problem and getting rid of it or at least significantly reducing its power would be a real positive.