Derek T. Muller is an associate professor of law at Pepperdine University School of Law.
Gill v. Whitford began as a blockbuster election-law case and ended (this time) as a federal-courts decision with a hint of trial strategy and evidence. It also left open the possibility of a transformational view of the First Amendment for future partisan-gerrymandering cases.
In 2016, a three-judge federal court found that Wisconsin’s state legislative map drawn in 2011 was an unconstitutional partisan gerrymander. Many hoped that the Supreme Court could provide a majority opinion articulating a standard for lower courts to handle such claims — past attempts at securing a majority had been elusive. But it wasn’t meant to be.
At the outset of oral argument, Justice Anthony Kennedy remarked to the state of Wisconsin, “[T]here is no case that directly helps Respondents very strongly on this standing issue,” and, “You have a strong argument there.” That is, members of the Supreme Court worried that the plaintiffs had failed to show that they had suffered an injury that a federal court could remedy. Those worries turned into a unanimous Supreme Court opinion authored by Chief Justice John Roberts.
There are two principal takeaways from the court’s standing analysis. First, the majority included strong language distinguishing individual and collective claims and, in turn, justiciable and nonjusticiable claims. The composition of “the legislature as a whole,” Roberts wrote, is “a collective political interest, not an individual legal interest.” At its core, Roberts explained, the case is “about group political interest, not individual legal rights.”
And Roberts cited none other than Marbury v. Madison to assert that the judicial power “rests not on the default of politically accountable officers, but is instead grounded in and limited by the necessity of resolving, according to legal principles, a plaintiff’s particular claim of legal right.”
The court held that the “citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative.” This unanimous sentiment may well dampen the prospects of many future partisan-gerrymandering claims.
Second, the court distinguished the kind of evidence used to prove an injury from the kind of evidence used to fashion a remedy. Under the court’s longstanding precedent, an injury-in-fact must be “concrete and particularized.” An injury must affect a plaintiff in a “personal and individual way.”
When a plaintiff claims that her vote has been diluted, her challenge must be based on an injury arising from her particular district. The court cited several cases, from the one person, one vote decisions in Baker v. Carr in 1962 and Reynolds v. Sims in 1964 to the recent racial gerrymandering decision in Alabama Legislative Black Caucus v. Alabama in 2015. The court emphasized that in each case, plaintiffs demonstrated a “district specific” injury.
While the injury may be district-specific, a court can issue a statewide remedy in response to that specific injury. In Reynolds, for instance, a one person, one vote claim that an individual plaintiff was in a malapportioned district required the remedy of a “wholesale” restructuring of legislative seats. The individual demonstration of injury ultimately yielded a statewide remedy.
The court’s new clarity in this area doomed the plaintiffs. One plaintiff, in the court’s words, “expressly acknowledged” that the redistricting plan “did not affect the weight of his vote.” Other plaintiffs failed to introduce sufficient evidence to show that they had suffered an individual injury. Until the plaintiffs could do so, as plaintiffs in cases like Reynolds and Alabama Legislative Black Caucus had done, their claims must fail.
On remand, the question remains about what kind of evidence would be enough to prove standing, and how much. The court offered little additional guidance except to say that more evidence is required, postponing more difficult decisions for future litigation.
For the unanimous majority, Roberts defined the reach of this opinion: “The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other.” These words assuredly sought to minimize the effect of Justice Elena Kagan’s concurring opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.
Kagan offered advice to future litigants (and these litigants on remand) about what evidence they might use to establish an injury. But surely a major new source of litigation will arise from Part II of her opinion, in which she offered a new theory of associational rights couched as a natural extension of First Amendment jurisprudence.
Kagan suggested that “partisan gerrymanders may infringe on the First Amendment rights of association held by parties, other political organizations, and their members.” Whether this associational theory attracts a fifth vote remains to be seen. And it is not clear how, without being stretched to new dimensions, the theory would cure the justiciability problems identified in the unanimous opinion of the court.
To support her theory, Kagan cited Anderson v. Celebrezze, a 1983 case involving independent presidential candidate John Anderson’s bid to appear on the Ohio ballot. When Anderson’s name was not placed on the ballot, he sued and ultimately secured ballot access. That’s because an associational injury occurs when individual voters cannot cast a vote for an individual candidate. Voters cannot be deprived of the ability to associate with one another by means of the ballot box, even if they can associate through rallies or campaign events. The standing analysis for such a claim looks fairly typical.
Kagan also cited California Democratic Party v. Jones, a 2000 case about California’s blanket primary law. That law permitted all voters to cast votes in any party’s primary. Four political parties challenged the law because it infringed on a core associational right — the right to exclude. The parties had concrete, individualized injuries if the state forced them to permit nonmembers to participate in their candidate selection process.
From these associational cases, Kagan concluded that “the standing analysis should differ” in a partisan-gerrymandering claim under an associational theory because “the harm alleged is not district specific.” True, but it is not clear that this conclusion follows from the premises of the court’s prior associational claims, which did rely on individualized harms.
Of course, these were not redistricting claims, so district-specific evidence wasn’t at issue. But it’s hard to think that this novel theory of justiciability would square with the distinction between individualized legal injuries and collective political interests emphasized in the unanimous opinion of the court.
In short, there are good reasons to doubt that Kagan’s associational approach would be as uncontroversial and natural as she asserts — even if four justices endorse her view. Indeed, her opinion is academic for the moment: The unanimous opinion concluded, “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.”
Academic, perhaps, but assuredly influential for litigants and lower courts going forward. Since Kennedy’s solo opinion in Vieth v. Jubelirer in 2004, litigants, including those in Gill, have positioned themselves as soundly within the views espoused by Kennedy in an attempt to earn a decisive fifth vote and a majority of the court.
Kagan’s opinion, too, is thick with citations to Kennedy’s statements on the First Amendment in partisan-gerrymandering claims. In Vieth, Kennedy emphasized the First Amendment concerns more generally with his citations to cases like Anderson and California Democratic Party. Kagan sought to provide a framework of justiciability consistent with Kennedy’s views. Kennedy did not join her opinion, but litigants assuredly hope that it provides a path toward a majority — here, in Maryland’s Benisek v. Lamone, and elsewhere.
Then again, the Supreme Court first posited in 1986 that federal courts could hear partisan-gerrymandering claims, but it could not reach consensus on what those claims should look like. Thirty-two years later, the court seems no closer to any consensus.
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