The lower court concluded that the districting plans were drawn to eliminate swing districts and create ones favorable to Republicans. That court found that the shape of the districts could not be explained by nonpartisan reasons and that the advantage given to Republicans would be “enduring” through the decade even if Democrats outperformed Republicans at the polls.<doc-sep>WASHINGTON, DC - MARCH 26: The exterior of the U.S. Supreme Court on March 26, 2012 in Washington, DC. Today the high court, which has set aside six hours over three days, will hear arguments over the constitutionality President Barack Obama's Patient Protection and Affordable Care Act. (Photo by Mark Wilson/Getty Images) A general view of the US Supreme Court in Washington, DC, June 18, 2015. AFP PHOTO/JIM WATSON (Photo credit should read JIM WATSON/AFP/Getty Images)Supreme Court building exterior The U.S. Supreme Court is shown March 29, 2016 in Washington, DC following the first 4-4 tie in a case before the court. The Justices of the US Supreme Court sit for their official photograph on October 8, 2010 at the Supreme Court in Washington, DC. Front row (L-R): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. Back Row (L-R): Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP PHOTO / TIM SLOAN (Photo credit should read TIM SLOAN/AFP/Getty Images) WASHINGTON, DC - JUNE 25: A gay marriage waves a flag in front of the Supreme Court Building June 25, 2015 in Washington, DC. The high court is expected rule in the next few days on whether states can prohibit same sex marriage, as 13 states currently do. (Photo by Mark Wilson/Getty Images) The U.S. Supreme Court is shown as the court meets to issue decisions May 23, 2016 in Washington, D.C. Pro-choice activist, Alissa Manzoeillo, of Washington, D.C. waits for rulings in front of the U.S. Supreme Court on June 27, 2016 in Washington, DC. A ruling is expected in Whole Woman's Health v. Hellerstedt, a Texas case the places restrictions on abortion clinics, as well as rulings in the former Virginia Governor's corruption case and a gun rights case. WASHINGTON - JUNE 25: The exterior view of the U.S. Supreme Court is seen June 25, 2007 in Washington, DC. The Supreme Court has ruled to give more freedom for interest groups and unions to run TV ads before elections, and also ruled to limit taxpayers' rights to challenge government initiatives as unconstitutionally promoting religion. (Photo by Alex Wong/Getty Images) People wait in line to enter the U.S. Supreme Court, on April 23, 2018 in Washington, DC. A wedding cake with statuettes of two men is seen during the demonstration in West Hollywood, California, May 15, 2008, after the decision by the California Supreme Court to effectively greenlight same-sex marriage. AFP PHOTO / GABRIEL BOUYS (Photo credit should read GABRIEL BOUYS/AFP/Getty Images) WASHINGTON - FEBRUARY 05: The U.S. Supreme Court is shown February 5, 2009 in Washington, DC. It was announced today that Supreme Court Justice Ruth Bader Ginsburg had surgery after being diagnosed with pancreatic cancer. (Photo by Win McNamee/Getty Images) (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<doc-sep>The Supreme Court’s much-awaited gerrymandering decisions were released on Monday, and they landed with a resounding meh. The court declined to touch the merits of the two cases under consideration and instead rejected them for procedural reasons. That means extreme partisan gerrymandering will end the day the way it began: in legal purgatory. Still, the court is likely to have additional opportunities to weigh in on the gerrymandering debate soon. For now, however, things remain unclear. In a 2004 ruling, Justice Anthony Kennedy said that “extreme” partisan gerrymandering could be unconstitutional, but that the court would need a standard for deciding when a gerrymander crosses into “extreme” territory. Both of the cases before the court — Gill v. Whitford out of Wisconsin, and Benisek v. Lamone out of Maryland — presented the court with potential standards. But because the justices dismissed the cases on procedural grounds, we still don’t know what they think of those standards. The Maryland case arrived at the Supreme Court because a District Court did not grant a preliminary injunction, which would have essentially thrown out the state’s old map before a proper ruling. The Supreme Court agreed with that decision and is now letting the case play out in lower court. The Wisconsin case involved a dozen Democrats asking the court to throw out a statewide map. But in its opinion, the court said that individuals do not have standing to sue to invalidate statewide maps since each voter is directly affected only by the specific district in which she or he lives. That is new information, but it’s unlikely to affect the central questions of the gerrymandering debate — only the route by which those questions are resolved. It is still possible, based on this ruling, that individuals can sue to have their own districts invalidated; and organizations such as state parties can sue to invalidate statewide maps. In fact, both of these possibilities are likely to be tested soon. The Supreme Court sent the Wisconsin case back to district court, where the reformers involved will be able to litigate partisan gerrymandering district by district with plaintiffs who live in each area. The second possibility, challenging a statewide map through an organizational plaintiff, could be tested in a North Carolina partisan gerrymandering case that could make its way to the Court next term. The Democratic Party of North Carolina is a plaintiff in that case. Beyond that, there were a few noteworthy tidbits in Monday’s opinions. The Wisconsin case relied on a mathematical equation, the efficiency gap, that reformers and court watchers alike were eager to see assessed by the court. During oral arguments, Chief Justice John Roberts called it sociological gobbledygook. In his opinion, however, he was much more restrained. “We need not doubt the plaintiffs’ math. The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens,” he wrote. Instead, “the efficiency gap measure[s] something else entirely: the effect that a gerrymander has on the fortunes of political parties.” The case out of North Carolina could test exactly that: the effect that a gerrymander has on the fortunes of political parties. Roberts kept his opinion focused on the specifics of the Wisconsin case and did not lament the effects of gerrymandering or offer advice for future plaintiffs. But Justice Elena Kagan did. In her concurring opinion, she wrote that partisan gerrymandering “violates the most fundamental of all democratic principles” and suggested how the Wisconsin plaintiffs might litigate individual districts going forward, such as providing alternative maps that are less packed and cracked. Uh, how does gerrymandering work again? Reformers can’t be sure that the path she laid out appeals to a majority of the court, though, because Justice Anthony Kennedy — a crucial swing vote — did not concur in Kagan’s opinion. If the court does ultimately rule partisan gerrymandering to be unconstitutional, it will likely be because Kennedy joins the four liberals in an opinion. Tea-leaf readers have pointed to the lack of resolution on gerrymandering as evidence Kennedy may stick around for another session. If that’s the case, it’s some solace to reformers, as another strict conservative on the court could make their goals all but impossible. In any case, nobody — liberal or conservative — got the resolution on partisan gerrymandering they were looking for today. In fact, we learned very little overall about what the court thinks of partisan gerrymandering. But it won’t be long before these tough questions are back before the court. Read more: The Gerrymandering Project<doc-sep>WASHINGTON — The U.S. Supreme Court on Monday rejected two claims that states violate the Constitution when they become blatantly partisan in drawing the boundary lines for voting districts, dashing the hopes of political reformers who were hoping for a landmark ruling that could change the future of American politics. In two unanimous decisions, the justices ruled that Wisconsin challengers failed to show that they were directly harmed by a new map for state legislative districts, and the court rejected a challenge to the boundaries for a congressional district in Maryland, finding that opponents had waited too long to sue. The Supreme Court has long held that oddly shaped districts are unconstitutional when they put racial minorities at a disadvantage through gerrymandering. But lower courts have recently held that partisan gerrymandering can be unconstitutional, too. Advocates of political change were hoping the justices would agree. Such a decision, they argued, would make elected representatives more attentive to the needs of voters, because their districts could no longer be engineered to ensure a victory. "The Supreme Court has kicked this can down the road for the umpteenth time in almost 50 years, unable to come up for a rule to determine how much politics is too much in drawing district lines," said Tom Goldstein, a Supreme Court expert and publisher of the SCOTUSblog website. "And there's no good sign that an answer is coming anytime soon." In the Wisconsin case, the court declined to invalidate legislative districts drawn by Republicans to the disadvantage of Democrats and a congressional district map drawn by Democrats in Maryland that made it harder for a Republican to get elected. In Wisconsin, a group of voters sued after the GOP-controlled legislature drew new district lines for the state Assembly following the 2010 census. Though Wisconsin residents are about equally divided along party lines, the new map gave Republicans control of two-thirds of those seats. A federal appeals court declared the redistricting plan an unconstitutional partisan gerrymander and said it placed Democrats at such a disadvantage that they could not muster a legislative majority. The Wisconsin challengers proposed a legal test they called the "efficiency gap" — a statistical measurement of how many votes in each party were wasted, either because they were so diluted in rural districts they could never achieve a majority or were so concentrated in urban ones that their numbers far exceeded the levels needed to get a majority. A group of current and former Republican office-holders — including former California Gov. Arnold Schwarzenegger, Ohio Governor John Kasich, and former U.S. senators Bob Dole and Alan Simpson — signed on with the challengers. They said partisan gerrymanders enable politicians to choose their voters instead of letting voters elect their politicians, contributing to partisan gridlock in Congress. Schwarzenegger said that the court's action was not "the end of the war for fair districts," but a call for further action. While I am disappointed that the Supreme Court has chosen not to decide on the merits of extreme partisan gerrymandering for now, it is not the end of the war for fair districts. It is a call to action. FULL STATEMENT: https://t.co/hez13PtONc — Arnold (@Schwarzenegger) June 18, 2018 The Supreme Court's ruling gives the Wisconsin challengers another chance to try to prove that they were directly harmed by the redistricting, and the court's four liberals raised the prospect that such a refined statewide attack might succeed. In Maryland, Republican voters challenged the redrawing of Maryland's 6th Congressional District in 2011, which gave Democrats a seat in the U.S. House that a Republican, Roscoe Bartlett, held for two decades. He was re-elected by a 28 percent margin in 2010. After the redistricting, he lost by a 21 percent margin. Monday's decision was consistent with past rulings in which the Supreme Court concluded that because redistricting was essentially a partisan political act, it would be impossible for the courts to know when gerrymandering became unconstitutional. In 2004, the court rejected a claim that a Pennsylvania gerrymander was too partisan, though Justice Anthony Kennedy indicated such a lawsuit might succeed if the right kind of proof came along. But for a majority of the current justices, such a legal test remains elusive.<doc-sep>
Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights, and constitutional law. He is the co-editor of “Election Law Stories” and is currently writing a new book on positive voting rights expansions. Find him at www.joshuaadouglas.com and follow him on Twitter @JoshuaADouglas. (CNN) — What could have been a bang ended in a whimper. Courtesy Joshua A. Douglas Joshua A. Douglas Most observers expected the Supreme Court’s major partisan gerrymandering cases this year to finally provide guidance on how to stop the worst abuses in drawing legislative lines. The Court heard two cases, one from Wisconsin and the other from Maryland, that represented egregious gerrymanders, or the practice of politicians drawing oddly-shaped district lines to keep themselves in power. It was the perfect storm, showing both the extreme nature of gerrymandering and how both parties do it. The Wisconsin case involved an outrageous Republican gerrymander, where under the map Republicans in 2012 were able to win 60 of the 99 seats even though their candidates garnered only 48.6% of the statewide vote, and in 2014 they won 63 of the 99 seats with 52% of the vote. The Maryland case was about a Democratic gerrymander, where the Democratic legislature redrew one district from performing majority-Republican to majority-Democrat to sustain its dominance. Yet the Supreme Court took a supreme punt in both cases, refusing to decide the merits of either one. In Wisconsin, the plaintiffs had brought a statewide claim, challenging the entire map as a whole, but the Court said that plaintiffs can only bring a challenge to a specific district in which they live. In legalese, the plaintiffs lacked “standing” because they could not show that the map harmed them individually. For instance, the lead plaintiff, a Democrat, lived in a district including Madison that would perform well for Democrats even under a less-gerrymandered map. The Court sent the case back to the lower court for the plaintiffs to try again under a district-specific theory of harm. In Maryland, the plaintiffs challenged only a specific district – so they had standing – but the Court rejected their request for a temporary ruling (a “preliminary injunction”) that would require redrawing the map before the 2018 midterm elections. The Court held that the plaintiffs were not diligent in bringing their request and that the public interest favored keeping the map in place for now. The decision is very fact-specific for the Maryland case. Unfortunately, neither decision provides any guidance on when a legislature goes too far in drawing a map for partisan purposes. Both cases leave the major fight for another day. But for those who oppose partisan gerrymandering, there are three reasons to celebrate – if only partially – the Court’s decisions. First, the rulings avoided a much worse result, one that many advocates feared: that federal courts cannot adjudicate partisan gerrymandering claims at all. That’s what four conservative justices had said the last time the issue reached the Court, in 2004 and again in 2006. Those Justices argued that there are no proper legal standards to determine when partisan gerrymandering has gone too far. Had a majority of the Justices agreed in this year’s cases, that would have closed the federal courthouse door for good, placing no judicial limits on politicians drawing lines for their own benefit. Now, at least, partisan gerrymandering challenges can live on for another day. The issue will surely reach the Court again in the coming years. Indeed, Justice Elena Kagan’s concurring opinion in the Wisconsin case, joined by three other members of the Court, gave plaintiffs specific guidance on how to craft their claims to comply with the Court’s new standard. Second, the decisions do nothing to the power of state courts to stop partisan gerrymandering under state constitutions. Virtually all state constitutions provide stronger protection for voting rights than the US Constitution. Earlier this year the Pennsylvania Supreme Court struck down that state’s egregious gerrymander under the state constitutional mandate that all elections in the state must be “free and equal.” The court ultimately approved a new, fairer map, which the state used in its primaries this year. The court’s analysis provides a model for other state courts to use their state constitutions to better protect voters. Get our free weekly newsletter Sign up for CNN Opinion's new newsletter. Join us on Twitter and Facebook Third, the voters themselves can still take legislative line-drawing away from entrenched politicians.