Gill v. Whitford

Below, I’ve embedded the full decision in Gill v. Whitford, a much-awaited decision concerning partisan gerrymandering in Wisconsin. The decision was handed down this morning.

The case was remanded for lack of standing.  Immediately below, readers will find the syllabus for the case, a summary that’s useful to review before reading the opinion.  (“NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.”)

One can expect considerable legal commentary about the case from across the country.


Gill et al. v. Whitford et al.

Appeal from the United States District Court for the Western District of Wisconsin

No. 16–1161.?Argued October 3, 2017—Decided June 18, 2018

Members of the Wisconsin Legislature are elected from single-member legislative districts. Under the Wisconsin Constitution, the legislature must redraw the boundaries of those districts following each census. After the 2010 census, the legislature passed a new districting plan known as Act 43. Twelve Democratic voters, the plaintiffs in this case, alleged that Act 43 harms the Democratic Party’s ability to convert Democratic votes into Democratic seats in the legislature. They asserted that Act 43 does this by “cracking” certain Democratic voters among different districts in which those voters fail to achieve electoral majorities and “packing” other Democratic voters in a few districts in which Democratic candidates win by large margins. The plaintiffs argued that the degree to which packing and cracking has favored one political party over another can be measured by an “efficiency gap” that compares each party’s respective “wasted” votes—i.e., votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win—across all legislative districts. The plaintiffs claimed that the statewide enforcement of Act 43 generated an excess of wasted Democratic votes, thereby violating the plaintiffs’ First Amendment right of association and their Fourteenth Amendment right to equal protection. The defendants, several members of the state election commission, moved to dismiss the plaintiffs’ claims. They argued that the plaintiffs lacked standing to challenge the constitutionality of Act 43 as a whole because, as individual voters, their legally protected interests extend only to the makeup of the legislative district in which they vote. The three-judge District Court denied the defendants’ motion and, following a trial, concluded that Act 43 was an unconstitutional partisan gerrymander. Regarding standing, the court held that the plaintiffs had suffered a particularized injury to their equal protection rights.

Held: The plaintiffs have failed to demonstrate Article III standing. Pp. 8–22.

(a) Over the past five decades this Court has repeatedly been asked to decide what judicially enforceable limits, if any, the Constitution sets on partisan gerrymandering. Previous attempts at an answer have left few clear landmarks for addressing the question and have generated conflicting views both of how to conceive of the injury arising from partisan gerrymandering and of the appropriate role for the Federal Judiciary in remedying that injury. See Gaffney v. Cummings, 412 U. S. 735Davis v. Bandemer, 478 U. S. 109Vieth v. Jubelirer, 541 U. S. 267, and League of United Latin American Citizens v. Perry, 548 U. S. 399. Pp. 8–12.

(b) A plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy,” Baker v. Carr369 U. S. 186, 204. That requirement ensures that federal courts “exercise power that is judicial in nature,” Lance v. Coffman549 U. S. 437, 439, 441. To meet that requirement, a plaintiff must show an injury in fact—his pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 560, and n. 1.

The right to vote is “individual and personal in nature,” Reynolds v. Sims, 377 U. S. 533, 561, and “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage, Baker, 369 U. S., at 206. The plaintiffs here alleged that they suffered such injury from partisan gerrymandering, which works through the “cracking” and “packing” of voters. To the extent that the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. A plaintiff who complains of gerrymandering, but who does not live in a gerrymandered district, “assert[s] only a generalized grievance against governmental conduct of which he or she does not approve.”United States v. Hays515 U. S. 737, 745.

The plaintiffs argue that their claim, like the claims presented in Baker and Reynolds, is statewide in nature. But the holdings in those cases were expressly premised on the understanding that the injuries giving rise to those claims were “individual and personal in nature,” Reynolds, 377 U. S., at 561, because the claims were brought by voters who alleged “facts showing disadvantage to themselves as individuals,” Baker, 369 U. S., at 206. The plaintiffs’ mistaken insistence that the claims in Baker and Reynolds were “statewide in nature” rests on a failure to distinguish injury from remedy. In those malapportionment cases, the only way to vindicate an individual plaintiff’s right to an equally weighted vote was through a wholesale “restructuring of the geographical distribution of seats in a state legislature.”Reynolds, 377 U. S., at 561. Here, the plaintiffs’ claims turn on allegations that their votes have been diluted. Because that harm arises from the particular composition of the voter’s own district, remedying the harm 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. This fits the rule that a “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey518 U. S. 343, 357.

The plaintiffs argue that their legal injury also extends to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” Brief for Appellees 31. To date, however, the Court has not found that this presents an individual and personal injury of the kind required for Article III standing. A citizen’s interest in the overall composition of the legislature is embodied in his right to vote for his representative. The harm asserted by the plaintiffs in this case is best understood as arising from a burden on their own votes. Pp. 12–17.

(c) Four of the plaintiffs in this case pleaded such a particularized burden. But as their case progressed to trial, they failed to pursue their allegations of individual harm. They instead rested their case on their theory of statewide injury to Wisconsin Democrats, in support of which they offered three kinds of evidence. First, they presented testimony pointing to the lead plaintiff’s hope of achieving a Democratic majority in the legislature. Under the Court’s cases to date, that is a collective political interest, not an individual legal interest. Second, they produced evidence regarding the mapmakers’ deliberations as they drew district lines. The District Court relied on this evidence in concluding that those mapmakers sought to understand the partisan effect of the maps they were drawing. But the plaintiffs’ establishment of injury in fact turns on effect, not intent, and requires a showing of a burden on the plaintiffs’ votes that is “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Defenders of Wildlife, 504 U. S., at 560. Third, the plaintiffs presented partisan-asymmetry studies showing that Act 43 had skewed Wisconsin’s statewide map in favor of Republicans. Those studies do not address the effect that a gerrymander has on the votes of particular citizens. They measure instead the effect that a gerrymander has on the fortunes of political parties. That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. It is a case about group political interests, not individual legal rights. Pp. 17–21.

(d) Where a plaintiff has failed to demonstrate standing, this Court usually directs dismissal. See, e.g.DaimlerChrysler Corp. v. Cuno,547 U. S. 332, 354. Here, however, where the case concerns an unsettled kind of claim that the Court has not agreed upon, the contours and justiciability of which are unresolved, the case is remanded to the District Court to give the plaintiffs an opportunity to prove concrete and particularized injuries using evidence that would tend to demonstrate a burden on their individual votes. Cf. Alabama Legislative Black Caucus v. Alabama, 575 U. S. ___, ___. Pp. 21–22.

218 F. Supp. 3d 837, vacated and remanded.

Roberts, C. J., delivered the opinion of the Court, in which KennedyGinsburgBreyerAlitoSotomayor, and Kagan, JJ., joined, and in which Thomas and Gorsuch, JJ., joined except as to Part III. Kagan, J., filed a concurring opinion, in which GinsburgBreyer, and Sotomayor, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined.


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