On June 18, 2018, the Supreme Court decided Gill v. Whitford, a case considering claims of partisan gerrymandering.
In Wisconsin’s 2010 elections, Republicans won the governorship and acquired control of the state senate. In 2011, pursuant to the state constitution’s requirement that the legislature must redraw the boundaries of its districts following each census, the Wisconsin legislature adopted a redistricting plan, Act 43, for state legislative districts. With Act 43 in effect Republicans expanded their legislative control in subsequent elections, reportedly winning 60 of 99 seats in the State Assembly with 48.6% of the statewide two-party vote in 2012, and 63 of 99 seats with 52% of the statewide two-party vote in 2014. In 2015 twelve Wisconsin voters sued in federal court, alleging that Act 43 constituted a statewide partisan gerrymander in violation of the First and Fourteenth Amendments to the U.S. Constitution. Defendants’ motions to dismiss and for summary judgment were denied, and following trial a divided three-judge district court panel invalidated Act 43 statewide. Act 43, the majority concluded, impermissibly burdened the representational rights of Democratic voters by impeding their ability to translate their votes into legislative seats even when Republicans were in an electoral minority. The court enjoined further use of Act 43 and ordered that a remedial redistricting plan be enacted, but the United States Supreme Court stayed that judgment pending resolution of this appeal.
By a vote of 9-0, the U.S. Supreme Court vacated the judgment of the district court and remanded the case for a new trial. In an opinion delivered by Chief Justice Roberts, the Court held that the plaintiffs--Wisconsin Democratic voters who rested their claim of unconstitutional partisan gerrymandering on statewide injury--had failed to demonstrate Article III standing.
Chief Justice Roberts delivered the opinion of the court, in which Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan joined. Justices Thomas and Gorsuch joined except as to Part III. Justice Kagan filed a concurring opinion in which Justices Ginsburg, Breyer, and Sotomayor joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment, which was joined by Justice Gorsuch.
To discuss the case, we have David Casazza, Associate at Gibson Dunn.