Washington (CNN) The Supreme Court on Monday sidestepped two major cases concerning partisan gerrymandering, allowing controversial district maps to stand and be used in this fall's midterm elections.

The 9-0 ruling authored by Chief Justice John Roberts in a Wisconsin case is a blow to Democrats who argued the Republican-drawn maps prevented fair and effective representation by diluting voters' influence and penalizing voters based on their political beliefs.

While the ruling will let the maps be used, the justices dodged the question of whether they are legal. The Supreme Court has a standard limiting the overreliance on race in map-drawing, except under the most limited circumstances. The court has not been successful in developing a test concerning the overreliance on politics.

Democrats had won a challenge in a lower court, but the Supreme Court's decision Monday would limit who can bring such cases in the future.

The second case was out of Maryland, where Republicans challenged a district map drawn by Democrats. The justices said that a lower court did not act improperly in leaving the map in place.

In an unsigned opinion with no dissents, the justices said that the challengers failed to reach the high bar of showing "irreparable harm" that would be necessary for a preliminary injunction to block the map.

"Even if we assume -- contrary to the findings of the District Court -- that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction," the court said.

The court's opinion in Maryland case means that for now the justices will leave having to answer whether the court can set a standard for when politicians go too far in drawing lines to benefit one party over another for another day.

Roberts sends Wisconsin to lower court

Roberts walked a fine line in his opinion in the Wisconsin case, finding the challengers did not have the legal right to bring the case.

Under normal circumstances, Roberts wrote, "we usually direct the dismissal" of the case. He added, "This is not the usual case."

The court opted instead to send the case back to the lower court so the challengers might have another chance to "prove concrete and particularized injuries" by showing there had been a burden on their individual votes. That showing, in turn, would allow the challengers to proceed to the merits of the case.

That could be the reason Roberts got the liberals to sign on. Many believed the justices might use "standing" -- or the legal right to bring a case -- as an off ramp to avoid the merits in the case.

But few believed the opinion would be unanimous.

Roberts stressed that "we express no view on the merits of the plaintiffs' case." But he also cautioned that such challenges might be hard to bring down the road.

He noted that how the challengers bring these cases is key.

"It is a case about group political interests, not individual legal rights," he wrote. "But the Court is not responsible for vindicating generalized partisan preferences. The Court's constitutionally prescribed role is to vindicate the individual rights of the people before it."

Liberals wanted court to act

While the liberals on the court agreed with the decision to send the Wisconsin case back down to the lower court, they emphasized that the court should someday take up such cases.

"Partisan gerrymandering no doubt burdens individual votes, but it also causes other harms," Justice Elena Kagan wrote.

She called partisan gerrymandering "incompatible with democratic principles."

There is a separate and similar challenge in the pipeline coming out of North Carolina, and the court could decide soon whether or not to hear that case.

"Courts -- and in particular this court -- will again be called on to redress extreme partisan gerrymanders," Kagan wrote. "I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law."

Elizabeth Wydra, president of the Constitutional Accountability Center, told CNN that Kagan's concurrence showed "the substantive battle over the constitutionality of partisan gerrymandering is far from over."

Wydra said there does not appear to be five votes on the court to say definitively the courts must stay out of partisan gerrymandering.

Kennedy most silent

"Most likely Justice Kennedy's vote is still in play when a case gets to the court with the right plaintiffs and the right theory of harm," Wydra said. "And Kagan's concurrence today makes a powerful case to Justice Kennedy that when that case comes, he should recognize that partisan gerrymandering is incompatible with the Constitution and democratic values."

On Monday, Justice Anthony Kennedy stayed relatively silent. The last time the Supreme Court heard a major partisan gerrymandering case, in 2004, four conservative justices said the issue should be decided by the political branches, not the courts. But Kennedy was unwilling to bar all future claims of injury from partisan gerrymanders.

Before Monday's decision, court watchers thought Kennedy might have found a standard that courts could use when deciding when states go too far in using politics to draw state lines. But not only did he refrain from writing separately, he also declined to join the concurring opinion put forward by the liberals.

Democrats, advocacy groups weigh in

After the ruling, Paul Smith, a lawyer for the challengers in the Wisconsin case, said "the case is very much still alive."

"We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with," he said.

Wisconsin Democrats issued a statement via Twitter in response to the Supreme Court, vowing to continue their fight in face of the decision.

"The fight for fair maps did not end today," the party's statement read.

Our response on the Gill v. Whitford decision: pic.twitter.com/X9ZZC2CKgk — Democratic Party WI (@WisDems) June 18, 2018

Wisconsin Attorney General Brad Schimel issued a statement that touted the court's decision but did not comment on the fact the court had sent the case back instead of dismissing it all together.

"I am pleased that the highest court in the land has unanimously reversed the trial court's erroneous decision invalidating Wisconsin's Assembly map," Schimel, a Republican, said. "Today is win for the rule of law in Wisconsin, and a testament to the talented attorneys at the Wisconsin Department of Justice."

Advocacy groups fighting against political gerrymandering likewise weighed in.

The American Civil Liberties Union called the Supreme Court's punt on Monday a "missed opportunity," although there are ongoing cases in Ohio and North Carolina.

And Kristen Clarke, president of the Lawyers' Committee for Civil Rights Under Law, said the court "failed to provide long-awaited resolution and clarity on what constitutes unlawful gerrymandering."

"As the case is now remanded to the district court for further development of the facts, we will remain vigilant to ensure that officials do not exploit this moment to alter redistricting maps in ways that undermine democracy," Clarke said.</s>The Supreme Court on Monday sidestepped two major cases concerning partisan gerrymandering in Maryland and Wisconsin, allowing challenged maps in two states to stand for now.</s>But Gill v. Whitford’s rise to the top of the Supreme Court docket was all the more remarkable because the plaintiffs’ argument—that Wisconsin Republicans drew state Assembly maps that diluted votes based on a partisan, not racial, bias—is one for which federal courts are considerably less prepared. Supreme Court precedent holds that maps drawn to maximize partisan advantage, pack members of one party into certain districts, or dilute them across others, can be unconstitutional. But that Court has also found that partisan advantage in redistricting is acceptable, and hasn’t agreed on how to measure that advantage or on when it might go beyond the pale. Indeed, there are still substantive arguments on whether the Court can even make such a decision. All of these factors have made serious partisan gerrymandering challenges rare.

As the tools for redistricting have become increasingly sophisticated and capable of producing partisan advantages, however, so have the analytic tools for identifying gerrymanders. Those tools were key for the plaintiffs in the Gill v. Whitford case. In their arguments, new ways of identifying gerrymanders gave them a way to spot partisan gerrymanders, and identify tipping points where those gerrymanders constituted constitutional infringement. There were supercomputer simulations. There were different measures of just how many seats devious gerrymandering schemes purloined from opposing parties. Chief among those was the “efficiency gap,” a metric that allows observers to calculate “wasted votes,” those that go to losing candidates or those that would’ve won anyways. Those tests—which found that the Wisconsin GOP had built enough advantage to continue to hold a majority of seats even if they don’t get 50 percent of the votes—were enough for a federal district court to strike the maps down.

Upon appeal, those tests were not enough for the Supreme Court to uphold that decision. Specifically, the justices unanimously agreed that the plaintiffs’ sophisticated tests of partisan gerrymandering pick up damage done to opposing parties, but didn’t quite show how Wisconsin’s politically biased map infringes upon individual constitutional rights, and how it burdens individual voters. Since gerrymandering rulings under the Voting Rights Act derive from the Equal Protection clause, tests that prove a violation of an individual’s civil rights are critical to making the rulings stick.

While voting-rights groups hoping for a firm precedent-setting decision before the next round of map-drawing in 2021 expressed disappointment with the Court’s decision, it clearly doesn’t mean the end of the line for partisan gerrymandering arguments in federal courts. For one, plaintiffs could reconfigure their arguments to again meet the district court’s—and presumably, the Supreme Court’s—standard. Also, on the same day, the Supreme Court ruled in the Benisek v. Lamone case, a partisan gerrymandering case in Maryland in which Republican plaintiffs filed suit against Democratic mapmakers, whom the GOP argues retaliated against Republican voters in the 6th district by diluting their votes with the 2011 congressional map. The Supreme Court’s ruling essentially allows that case to go to trial in the lower court. Additionally, the high court is now primed to take on a consolidated challenge to partisan-aligned maps in North Carolina that were created as a direct response to its earlier decision on racial gerrymandering in the state.</s>Demonstrators protest outside the Supreme Court in March as the justices heard the second of two challenges to partisan gerrymandering.

GREENSBORO, N.C. — It's only a few yards from political science professor Derick Smith's office at North Carolina A&T State University to the campus library, but to get there he has to switch congressional districts.

As part of its effort to help Republicans win 10 of the state's 13 seats in the House of Representatives in 2016, the state legislature split the largest of the nation's historically black colleges down the middle, ensuring that its students could not influence the outcome for either seat. An invisible line runs down Laurel Street, separating the Aggie Village dormitories from the bookstore, ticket office and mail center.

"It's literally like two different campuses around election time," says student body president Delaney Vandergrift.

The Supreme Court spent 259 days this term trying to hammer out its decision on partisan gerrymandering — the designing of election districts for political advantage. But on Monday, the court basically punted on procedural grounds in cases concerning one-sided maps from Wisconsin and Maryland.

As a result, North Carolina's congressional map looms as the next test. Here, the facts aren't even in dispute: State lawmakers in the relatively "purple" state, which swings between Democrats and Republicans in statewide elections, declared their intentions on camera.

The challenge by Common Cause and the League of Women Voters to the state-drawn map — one that gives Republicans 10 of 13 seats because, state Rep. David Lewis famously said, he couldn’t squeeze out an 11th — may offer the cleanest test for the court's consideration.

“North Carolina is kind of a poster child for why there needs to be some rule,” says Allison Riggs, senior staff attorney at the Southern Coalition for Social Justice.

In a blockbuster term that has careened from sports betting to same-sex wedding cakes — and is likely to conclude with a decision on President Trump's immigration travel ban — nothing is as important to the future of democracy as the way politicians pick their voters.

All the attention remains on Wisconsin, where Republicans drew themselves a favorable state Assembly map, and Maryland, where Democrats designed a congressional map to give them seven of the state's eight seats. But unlike North Carolina, those cases have procedural problems that could cause the high court to punt rather than issue a landmark decision.

So dissatisfied were some justices with their options during the Maryland oral argument in March that Justice Stephen Breyer suggested they could come back next fall and examine all three state maps again. “You could have a blackboard and have everyone's theory on it,” he said, seemingly alone in relishing the thought.

North Carolina's story would take the longest to tell. The state's history of racial and partisan gerrymandering dates back a quarter-century, and both parties have chalk on their hands.

For years, the 12th Congressional District snaked so narrowly along Interstate 85, picking up black voters who invariably voted Democratic, that it became the national model for grotesque gerrymandering. When it ultimately was struck down on racial grounds, Republicans happily substituted a standard the Supreme Court has yet to admonish: politics.

"We want to make clear that to the extent we are going to use political data in drawing this map, it is to gain partisan advantage,” Lewis said at the time. “I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats, because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”

The result looked a lot better, but it had the same devastating effect on Democrats. They were “packed” into Charlotte, blocking the chance for two Democratic seats there, and “cracked” in Greensboro and Asheville to assure Republican victories.

Nowhere was the deed so dastardly, challengers say, as at North Carolina A&T. Here, about 10,000 students were neatly divided between the 6th and 13th congressional districts, ensuring that most would be voting for losing candidates.

"It doesn't matter how many are registered to vote. It doesn't matter how many students vote," Vandergrift, 20, says. "It's just demoralizing."

Delaney Vandergrift, student body president at North Carolina A&T State University, and Derrick Smith, professor of political science, say the historically black college was "cracked" between two congressional districts to dilute its clout.

The challenges against the election maps in Wisconsin, Maryland, North Carolina and several other states offer the Supreme Court an opportunity to do something it has never done before: declare a blatantly partisan gerrymander unconstitutional.

Across the nation, thousands of state legislators and hundreds of members of Congress are elected in districts drawn to favor the party that controls the chalk — or in this case, the sophisticated computer programs. That has largely favored Republicans during the past decade.

Thus it was that in October, Justice Anthony Kennedy — the court's swing vote — appeared to side with the liberal justices against Wisconsin's state Assembly map, drawn to assure GOP control throughout the decade.

But by March, Kennedy sounded less assured when confronted with Maryland's congressional map — despite Chief Justice John Roberts' quip that its 6th District meandered from farm country near West Virginia to the "hobby farms" of wealthy Potomac, a suburb of Washington, D.C.

In between, Pennsylvania's Supreme Court struck down that state's congressional map and drew another for this fall's elections, and the U.S. Supreme Court refused to intervene. All the other battles, including those in Ohio and Michigan, will affect the 2020 elections at the earliest.

At stake in many states, including North Carolina through a separate court challenge, are state legislative districts as well as those for Congress. The statehouse challenges are particularly important, because the lawmakers elected in 2020 will get to draw lines for the next decade.

Republicans believe they are on solid ground using politics to draw the maps, which the Supreme Court has never said is verboten.

“It’s clear from the founding that this was intended to be a political process," says Jason Torchinsky, general counsel for the National Republican Redistricting Trust. "The Framers of the Constitution were engaged in political gerrymandering themselves.”

But during the Wisconsin and Maryland oral arguments, Kennedy asked the state's lawyers whether it would be OK if the state required partisan lines. When Roberts noted that Maryland's map was contained in a statute passed by the legislature, state Solicitor General Steven Sullivan said it was just a description of "metes and bounds."

"So if you hide the evidence of what you're doing, then you're going to prevail?" Kennedy asked, drawing laughter.

North Carolina A&T State University, the nation's largest historically black college, was split down the middle between two congressional districts by the state's Republican-controlled legislature. Laurel Street, shown here, divides six dormitories from the other nine.

North Carolina didn't hide what it was doing in 2016, and to the state's Democrats and African Americans, it was no laughing matter. One expert told a trial court last year that the workmanship exhibited the most partisan bias of any congressional map in the country.

Nevertheless, Republican lawmakers defend their plan's "clean, compact and competitive maps," in the words of Mark Coggins, policy adviser to Rep. Lewis, who chaired the redistricting effort.

"We are confident that the most recent maps, which split fewer precincts and counties than any in recent North Carolina history, will be upheld in one way or another by the courts," Coggins says.

That's not how folks see it in the predominantly liberal city of Greensboro, pop. 287,000 — "a blue dot in a sea of red," says Democratic consultant Tim Moreland.

Walter Salinger, a League of Women Voters board member, says the legislature "cut the urban population up into pie pieces, the larger pieces of which are rural."

North Carolina A&T — "Aggieland" — became the dividing line between two such slices of congressional pie. Nine dormitories sit in one district, six in another.

To Smith, the political science professor active in the state NAACP and Poor People's Campaign, the new maps came as no surprise in a state that had one of the nation's most restrictive voter identification laws struck down in 2016.

"We've been dealing with the gerrymander since the '90s," he says. "North Carolina's probably the most gerrymandered state at all levels.

"The one thing they all seem to have in common," Smith says, "is that race is being used as a proxy for partisan advantage."

Betting on sports: Supreme Court strikes down ban on sports betting in victory for New Jersey

Getting religion: Supreme Court rules on narrow grounds for baker who refused to create same-sex couple's wedding cake</s>The Supreme Court has a big decision left to make as it heads into its final weeks of the term: whether to strike down a voter map for the first time as an unconstitutional partisan gerrymander.

Experts agree it would be a game changer if the court is able to find a workable test to assess when legislators have gone too far in drawing congressional maps that give their party an edge.

The court has longed shied away from policing congressional maps without a clear way to measure how much political bias in redistricting is too much.

Court watchers say Justice Anthony Kennedy, a likely swing vote, has been looking for a standard since 2004 when the court refused to wade into a dispute over Pennsylvania’s map.

Kennedy signaled at the time that while the court did not have a clear solution then, one could be found eventually.

“That no such standard has emerged in this case should not be taken to prove that none will emerge in the future,” he said.

But it's anyone's guess whether Kennedy and other justices have since settled on a standard.

“Legislators have taken advantage of computer mapping and the ability to identify the likely votes of virtually every voter to really warp the democratic system, and I think the court recognizes that – or at least five justice recognize that,” said David Cole, national legal director at the American Civil Liberties Union.

The court has two cases before it to resolve in the coming weeks – Gill v. Whitford, a challenge to Wisconsin’s 2011 redistricting plan, and Benisek v. Lamone, a challenge to the lines of Maryland’s 6th District, currently represented by Rep. John Delaney John Kevin DelaneyReady for somebody? Dems lack heir apparent this time Washington governor to make Iowa debut Five rulings to watch at the Supreme Court MORE (D).

In the Wisconsin case, Democratic voters argue that the Republican-controlled legislature drew the districts with a discriminatory intent to dilute the Democrats' voting power throughout the state.



In Maryland, Republicans are the ones arguing Democrats put them at a disadvantage. They claim top Democrats in the state in 2011 drew the district lines intentionally to dilute the votes of Republicans and their support for the incumbent, then-Rep. Roscoe Bartlett (R).

The Supreme Court has yet to rule in either case, despite having heard arguments in the Wisconsin challenge on the second day of the court's term last year.

Adam Feldman, the creator and author of the blog Empirical SCOTUS, said that only 10 cases have taken longer to decide since 1946. 



“I have to think the hold up is that they’re trying to decide these cases together and they’re having an issue with Gill,” he told The Hill.

Though both cases involve challenges to partisan gerrymandering, Barry Burden, a political science professor and director of the Elections Research Center at the University of Wisconsin-Madison, said the justices could be having a hard time reconciling the different legal theories being argued.

“It’s complex and having two cases muddies the waters rather than clarifying them,” Burden said.

Justin Levitt, a professor at Loyola Law School in Los Angeles who runs the website All About Redistricting, said the justices could make lower courts decide what standard to use.

However, Levitt said he believes that the justices are more likely to create a basic principle that it is unconstitutional to intentionally disadvantage one party and say there are a number of ways it can be proven.

“The court very rarely when it weighs in on an issue explains all the contours of an issue,” Levitt said. “Commonly it says here’s the basic principle and we’ll tell you about the next case when it comes.”

The stakes are high as justices weigh a decision.

During oral arguments in October, Chief Justice John Roberts expressed concern that throwing out the Wisconsin map could invite a flood of litigation.

Wisconsin state officials warned striking down the maps could lead to a third of all maps drawn in the last 45 years being challenged.

Feldman said if the Supreme Court were to strike down either one or both maps, it will likely do so on narrow grounds.

“They could find some kink in the system, but I have to think it’s going to be so specific that it doesn’t create this snowball effect, this avalanche of cases that will go to district courts and inevitably will attempt to get tested at the Supreme Court,” he said.



“I don’t think that’s what they want to be in the business of doing.”



If the court goes the other way and upholds the maps, legal experts say it will likely open the door to an unprecedented level of partisanship in the redistricting process.



“There will be a shakeup one way or another,” Burden said. 



Justices could also choose to punt the issue by tossing the cases out or holding them over to be reargued in the next term.



Another partisan gerrymandering case out North Carolina is pending before the court. Levitt said the justices could decide to hear all three together.



Justice Stephen Breyer even suggested it during arguments in the Maryland case.



“What would you think of taking the three cases and setting them for re-argument on the question of standing?" Breyer asked Michael Kimberly, the attorney arguing on behalf of the Maryland voters challenging their district map.

Levitt said that while it is rare for the court to reargue cases, the possibility cannot be ruled out.

"Though everyone in the country would be disappointed, it's not a crazy response," he said.</s>The ruling in a Wisconsin case dodges the question of whether courts can hear claims concerning partisan gerrymandering, but the justices did make it more difficult for challengers to bring such claims.

One case, Gill v. Whitford, was brought by Wisconsin Democrats challenging maps drawn by Republicans, and the other, Benisek v. Lamone, was brought by Maryland Republicans challenging a district map drawn by Democrats.

The Gill opinion is a blow to Democratic challengers in Wisconsin who challenged Republican-drawn maps and had won in lower court.

This story is breaking and will be updated.</s>The U.S. Supreme Court avoided issuing a sweeping ruling on the issue of partisan gerrymandering Monday, delivering narrow opinions in two cases that had the potential to reshape election maps nationwide.

The court issued rulings in two cases, Gill v. Whitford and Benisek v. Lamone, both of which concerned partisan gerrymandering, or the practice of drawing election maps to unfairly benefit a single party. In both cases, however, the court declined to rule on the practice of partisan gerrymandering itself, instead focusing their rulings on specific procedural aspects of each individual case.

Democratic voters in Wisconsin argued that redistricting was biased toward Republicans and violated their First and 14th Amendment rights in Gill v. Whitford. The plaintiffs argued that a gerrymandered map keeps Democratic voters from being treated equally and discriminates against them for expressing their political views.

The Supreme Court ruled, however, that the plaintiffs did not have the proper legal standing under Article III for the court to rule in the case. Noting that plaintiffs must be able to show “a personal stake in the outcome of the controversy,” the court ruled that the plaintiffs did not have the proper standing because though they were trying to fix a statewide issue, their individual problem of having their vote diluted was limited to their own specific district.

“In this case the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district,” Chief Justice John Roberts wrote in the court’s opinion on the case.

“It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

Rather than dismissing the case entirely, the court sent the case back to the district court, which will allow the plaintiffs to argue their case again and show “concrete and particularized injuries using evidence ... that would tend to demonstrate a burden on their individual votes.”

The court similarly avoided ruling on gerrymandering in Benisek v. Lamone, which concerned partisan gerrymandering in Maryland. In this case, it was Republican voters who felt they had been unfairly discriminated against by a map that favored Democrats. The plaintiffs who brought the case argued for a district court to provide a preliminary injunction that would prevent the state from holding elections under its current map, which was last redrawn in 2011. That court denied the injunction.

In its ruling Monday, the Supreme Court upheld the district court’s decision to deny the injunction without ruling on the practice of partisan gerrymandering itself. In a five-page opinion written per curiam, meaning unsigned by any specific justices, the court upheld the district court’s denial by pointing to the plaintiffs’ delay in challenging the 2011 map, a time constraint preventing the “timely completion” of a new map, and the legal uncertainty over partisan gerrymandering at the time, given the Supreme Court’s pending decision in Gill v. Whitford.

Partisan gerrymandering has become a major issue as Americans prepare for the midterms and the 2020 census, which will provide the next opportunity for states to redraw their congressional maps. Pennsylvania redrew its congressional maps after the state Supreme Court in January found them to be unfairly biased, and a number of other states are pushing their own redistricting measures ahead of 2020 through both ballot measures and legislation. Americans remain broadly opposed to gerrymandering; according to a September study from the Campaign Legal Center, 73% of respondents did not want any partisan bias in how districts are drawn, even when it’s in favor of their own party.

Though many hoped the U.S. Supreme Court’s rulings would be part of this redistricting movement by striking down the practice of partisan gerrymandering, the court instead continued its history of being skittish when it comes to the controversial practice. In 2004, the court upheld the practice of gerrymandering in a case concerning Pennsylvania’s map, finding that the practice of gerrymandering was outside the court’s purview and “nonjusticiable.” The court determined “no such standard [for ruling gerrymandering unconstitutional] has emerged in this case,” though they left open the possibility that the court could rule on partisan gerrymandering in the future.

Though that future did not arrive on Monday, Justice Elena Kagan predicted in a concurring opinion for Gill v. Whitford that a court ruling on partisan gerrymandering cannot be far off. Describing gerrymandering as “incompatible with democratic principles,” Kagan noted that the standing requirements that prevented a Gill ruling “will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy.”

“Courts have a critical role to play in curbing partisan gerrymandering,” Kagan wrote in her opinion. “Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the court’s opinion.

“But of one thing we may unfortunately be sure. Courts — and in particular this Court — will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.”</s>The Supreme Court on Monday sidestepped a decision on when partisan gerrymandering goes too far, ruling against the challengers of a Republican-drawn map in Wisconsin and a Democratic redistricting in Maryland.

The decisions in the separate cases once again puts off a decision on when courts can find that partisan efforts to keep parties in power goes so far as to be unconstitutional.

It was a technical resolution of what has seemed to hold the promise of being a landmark decision about whether extreme efforts to give one party advantage over another were unconstitutional.

While the court routinely polices the drawing of electoral maps to combat racial gerrymandering, it has never found that partisan eforts went too far. It has never settled on a test that judges could use to determine how much politics was too much.

There is a pending challenge of North Carolina’s redistricting efforts that could provide another case for the justices to consider the issue.

[Even on second look, Supreme Court seems stumped on gerrymandering issue]

In the Wisconsin case, the court said that the challenges must be brought district by district, with voters in each proving that their rights had been violated. The challengers asked the court to consider the state map as a whole.

The Maryland case was still at a preliminary stage, and the court in an unsigned opinion said the lower court had not been wrong when it decided not to make the state redraw the maps in time for the 2018 election.

As a practical matter, the two decisions mean that Wisconsin’s legislative map, which challengers said overwhelmingly favored Republicans, will remain intact for the fall elections. Likewise, Maryland will not have to change its congressional maps, which favor Democrats. The incumbent in the challenged district is not running for reelection.

“Today’s decision is yet another delay in providing voters with the power they deserve in our democracy,” said Chris Carson, president of the League of Women Voters of the United States. “Partisan gerrymandering is distorting and undermining our representative democracy, giving politicians the power to choose their voters, instead of giving voters the power to choose their politicians. We are disappointed that the Court failed to set a standard when it comes to partisan gerrymandering.”

Maryland Democratic leaders set out in 2011 to redraw the state’s congressional districts to boost the likelihood that the party’s 6-to-2 edge in the delegation became 7 to 1.

Democratic former governor Martin O’Malley was frank about the effort in a deposition in the case.

“As the elected governor, I did my duty within the metes and bounds” of Maryland law that set up redistricting as a partisan exercise, O’Malley said. He added that if the reconfigured district “would be more likely to elect a Democrat than a Republican, yes, this was clearly my intent.”

O’Malley also now says he believes redistricting should be done by an independent commission rather than by legislators.

The Democrats targeted longtime Republican Rep. Roscoe Bartlett, who had been reelected in 2010 by a 28-percentage-point margin, but lost to a Democrat in the redrawn district in 2012 by 21 points.</s>The decision came in a case called Gill v. Whitford, which advocates had hoped would allow the court to clarify if partisan gerrymandering could be so egregious that it violated the U.S. Constitution. The court has never said partisan gerrymandering is unconstitutional, leaving lawmakers from both political parties free to draw lines to their advantage.

Even though the court said the 12 plaintiffs couldn’t challenge the entire statewide assembly map, it sent the case back to a lower court to evaluate their claims of standing to bring forward a gerrymandering case for their district. The decision to dismiss the case for lack of standing was unanimous. The decision to send the case back to the lower court for further consideration was 7-2, with Justices Clarence Thomas and Neil Gorsuch dissenting. The court’s decision establishes a new legal framework for challenging partisan gerrymandering. Plaintiffs can’t simply challenge a statewide map, but they can challenge the boundaries of their own districts if they can show they have suffered a specific harm.

“The plaintiffs’ partisan gerrymandering claims turn on allegations that their votes have been diluted. That harm arises from the particular composition of the voter’s own district, which causes his vote—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district,” Chief Justice John Roberts wrote for the court. “Remedying the individual voter’s harm, therefore, does not necessarily require restructuring all of the State’s legislative districts. It requires revising only such districts as are necessary to reshape the voter’s district—so that the voter may be unpacked or uncracked, as the case may be.”

Justice Elena Kagan wrote a concurring opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. That opinion offered a roadmap for how a partisan gerrymandering claim might successfully proceed in a lower court, and said plaintiffs could show they had suffered specific harm by offering an alternative electoral map that did not dilute their votes as much. The claims from voters in a partisan gerrymandering case must be district-specific, Kagan wrote, but courts can still step in to strike down a statewide map.

“Remedying each plaintiff’s vote dilution injury ‘requires revising only such districts as are necessary to reshape [that plaintiff ’s] district—so that the [plaintiff] may be unpacked or uncracked, as the case may be,’” Kagan wrote. “But with enough plaintiffs joined together—attacking all the packed and cracked districts in a statewide gerrymander—those obligatory revisions could amount to a wholesale restructuring of the State’s districting plan.”

Kagan also wrote that a political party or other group might be able to bring a statewide challenge to a partisan gerrymander on the theory that it violated their First Amendment right to freedom of association. The challengers wouldn’t need to show harm in specific districts because such a decision wouldn’t necessarily be district-specific, she wrote. But she said the challengers in the Wisconsin case had failed to advance that claim.

Redistricting is usually done once every 10 years, so an effective gerrymander can have profound political consequences for the rest of the decade. Many believe advances in technology and data analysis will make partisan gerrymandering during the next round of redistricting, in 2021, even more severe.

Their plan worked. In 2012, they won 60 of the chamber’s 99 seats, even though then-President Barack Obama had won the state and Republicans only got 47 percent of the vote. The GOP won 57 percent of the assembly vote in 2014 and increased its majority in the assembly to 63 seats. In 2016, the party’s share of the assembly vote dropped to 53 percent, but Republicans picked up an additional seat in the assembly.

Wisconsin Republicans weren’t alone in gerrymandering. During the 2010 midterm elections, Republicans targeted state races in which they had a chance to flip control of state chambers and control the redistricting process. That effort succeeded and Republicans ruthlessly gerrymandered seats to their advantage. In North Carolina, the Republican lawmakers overseeing the redistricting process talked openly about how much of an advantage their map would give Republicans.

The challengers in the Wisconsin case, 12 voters in the state, said the state assembly map was a partisan gerrymander that treated Democrats and Republicans differently, thus violating their rights guaranteed by the First and 14th amendments. They said the election results over three federal elections offered clear evidence that Republicans had drawn a map making it nearly impossible to take control of the chamber.

But Wisconsin lawyers said lawmakers hadn’t done anything unconstitutional by drawing maps to their advantage. They noted that the Constitution gives state lawmakers power over redistricting, a sign that the drafters of the document anticipated partisanship to play a role in the process.

They also pointed to a 2004 case called Vieth v. Jubelirer, in which the Supreme Court declined to strike down Pennsylvania’s congressional map as an unconstitutional gerrymander. Four justices in the majority wrote that it was impossible to determine when a partisan gerrymander violated the Constitution. Justice Anthony Kennedy, however, wrote separately, saying that such a standard might exist.

The challengers in Gill took up Kennedy’s invitation. They offered a range of standards they hoped he might like in hopes of earning his vote, which was seen as crucial in winning the case.

Many of those proposed tests relied on mathematical calculations to help the justices assess how firmly a map cemented one party’s power. One of the tests that got much attention in the case was called the “efficiency gap.” It offers a formula for calculating how many votes each party wastes in a given election in an attempt to quantify the severeness of a gerrymander. The party in power is extremely likely to maintain its majority when the efficiency gap is greater than 7 percent, experts say.

During oral argument in October, Roberts was skeptical of the efficiency gap and other standards, labeling them “sociological gobbledygook.” He worried that getting involved in partisan gerrymandering would worsen the court’s standing in the public’s eye because the average American would think the justices were favoring one party over the other.</s>The Supreme Court on Monday passed up its two opportunities this term to rule on when and whether states violate the Constitution by drawing electoral maps that sharply favor one political party.

Ruling in cases from Wisconsin and Maryland, the justices gave little clarity to when so-called partisan gerrymandering goes further than the law allows.

In the Maryland case, the Supreme Court unanimously upheld a district court judge’s decision not to grant a preliminary injunction blocking the state’s 2011 congressional map. The justices said the legal uncertainty around the issue justified the judge declining to grant that unusual order.

The high court also said the urgency of the request was undermined by the fact that most of the plaintiffs failed to sue for five years after the map was enacted.

"In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request," the Supreme Court's unsigned opinion said.

In the Wisconsin dispute, the justices ruled unanimously that the Democratic voters challenging a state legislative map drawn in 2011 failed to prove they were injured by the drawing of the new boundaries. However, seven justices agreed to give the challengers another shot at making their case in the lower courts.

Chief Justice John Roberts' majority opinion noted that none of the individual plaintiffs in the case claimed to be in a district that was intentionally filled with a disproportionate number of Democrats ("packed") or drained of such voters ("cracked") in an attempt to give Republicans a near-guaranteed win.

"The plaintiffs did not seek to show such requisite harm since, on this record, it appears that not a single plaintiff sought to prove that he or she lives in a cracked or packed district," Roberts wrote in a portion of his opinion joined by all his colleagues. "They instead rested their case at trial — and their arguments before this Court — on their theory of statewide injury to Wisconsin Democrats."

Roberts said that argument wasn't enough to sustain the individual voters' claims.

"It is a case about group political interests, not individual legal rights. But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it," the chief justice wrote.

The Supreme Court's four Democratic appointees joined in Justice Elena Kagan's concurring opinion arguing that the door was still open to claims based on the statewide impact of a heavily gerrymandered map.

"Given the charges of statewide packing and cracking, affecting a slew of districts and residents, the challengers could make use of statewide evidence and seek a statewide remedy," Kagan said. "Partisan gerrymandering no doubt burdens individual votes, but it also causes other harms."

Kagan's opinion went on to rail against the evils of partisan district drawing and to stress that the court will have to square up to the issue soon.

"More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches," Kagan wrote. "Partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy."

Justices Clarence Thomas and Neil Gorsuch said they would not allow the plaintiffs in the Wisconsin suit another shot at making their case.
The United States Supreme Court sidesteps two major partisan gerrymandering cases, allowing challenged voter redistricting maps to be used in this year's midterms.