Monday, June 25, 2018

NC's Partisan Gerrymandering Kicked Back by SCOTUS to Reconsider "Standing"

This morning, the Supreme Court of the United States (SCOTUS) issued an order vacating the decision by the Middle District of North Carolina regarding the district court's findings of partisan gerrymandering by the North Carolina General Assembly of the congressional district map (known as Rucho v. Common Cause), and remanding the case back to the Middle NC District Court to consider the decision by SCOTUS in the Wisconsin redistricting case of Gill v. Whitford, announced a few weeks ago. In Gill, SCOTUS vacated the lower's court's previous decision in finding an unconstitutional gerrymandering by the Wisconsin legislature, and asked for reconsideration of the "standing" of the plaintiffs in the case.

For non-lawyers, "standing" is an important component in any legal action that must be shown by those bringing the legal action.  Standing has been defined by SCOTUS as being "1., the plaintiff must have suffered an 'injury in fact,' meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent; 2., there must be a causal connection between the injury and the conduct brought before the court; and, 3., it must be likely, rather than speculative, that a favorable decision by the court will redress the injury."

So, in order to bring legal action against another party, the plaintiff must show harm to their legal interest (such as a constitutional liberty or right) in a non-theoretical or "at some point in the future" time, show that there is a connection between the harm suffered and the conduct that is alleged to make the harm, and that the court has some potential means by which to resolve that harm if the court finds in favor of the plaintiff.

First, a bit of "30,000 foot" view: at the heart of the controversy over partisan gerrymandering is the question "when can a court say 'this is partisan gerrymander' or it isn't?" At times, it reminds me of the legal notion of "I know it when I see it." In previous decisions, SCOTUS has said that partisan gerrymandering is one that is more "political" in nature, and when there is a political question of this sort, the courts will usually defer to the other branches of government to resolve the controversy. As noted in the beginning of the Gill case, Chief Justice Roberts traces the line of opinions and cases regarding partisan gerrymandering, beginning with a 1973 case from Connecticut where the court refused to deal with partisan gerrymandering because "districting 'inevitably has and is intended to have substantial political consequences.'" Subsequent cases have been all over the map, with some justices saying the courts can't make these kind of decisions (thus, partisan gerrymandering is non-justiciable) while other justices contend that the courts should weigh in, but with little agreement as to how best to weigh in on the controversial matter. One justice, Anthony Kennedy, gave hope in a 2004 case from Pennsylvania that he would be open to considering how best to judge partisan gerrymandering, if there was a sufficient standard of law by which the courts could consistently apply to future cases. In his concurrence, Justice Kennedy wrote about how he would envision a challenge to, and determining what is, partisan gerrymandering based on the First Amendment:

"The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. ... First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights. 
If a court were to find that a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. Of course, all this depends first on courts’ having available a manageable standard by which to measure the effect of the apportionment and so to conclude that the State did impose a burden or restriction on the rights of a party’s voters.
    Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause. ... The First Amendment analysis concentrates on whether the legislation burdens the representational rights of the complaining party’s voters for reasons of ideology, beliefs, or political association."

Some believed that the Gill case would be the opportunity to answer Justice Kennedy's challenge. However, before venturing into the merits, and thus the constitutionality of partisan gerrymandering, SCOTUS asked that the lower court to revisit the Gill plaintiffs' standing regarding whether they had been injured by the partisan gerrymandering in Wisconsin. In doing so, Chief Justice Roberts, writing for the majority, contended that "a plaintiff may not invoke federal-court jurisdiction unless he can show 'a personal stake in the outcome of the controversy'" and that a "federal court is not 'a forum for generalized grievances,' and the requirement of such a personal stake 'ensures that courts exercise power that is judicial in nature.'"

In particular, Chief Justice Roberts held that plaintiffs must contend that their individual district was "injurious;" claiming a state-wide injury, especially due to the election of a legislature that the plaintiff's believed were injurious to them (that is, the opposition party won and implemented policies that the plaintiffs disagreed with), was not something the court would consider. It seems that the court's majority wanted the individual plaintiff's to show that they lived in districts either "cracked" (where like-minded voters are separated from each other to dilute their voting power) or "packed" (where like-minded voters are crowded into a district, thus removing those voters, and their voting influence, from other districts and wasting their votes in a single district), thus causing the individual injuries.

In the end, writing for the majority, Chief Justice Roberts held that the Gill case "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." Thus, the plaintiffs must show the individual harms done in individual districts, rather than harm done to a group across the state.

And, as in many other cases, the Chief Justice wrote that "In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff’s claims." BUT, Roberts went on to add: "This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal. We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes."

In the Rucho case from North Carolina, the issue of standing was challenged by the legislative defendants against the plaintiff's bringing the suit, and the three-judge panel addressed the issue of standing as "we conclude that Plaintiffs have standing to raise statewide and district-by-district partisan gerrymandering challenges to the 2016 Plan."

In doing so, the judges, under the opinion of Circuit Judge Wynn, held that along with the NC Democratic Party and two non-profit organizations, individual voters made up the plaintiffs and alleged that they were injured in the following manner (bulleted for ease of reading):

  • "vote dilution; 
  • elected representatives who, with victory all-but assured, are less willing to engage in democratic dialogue and meaningfully consider contrary viewpoints; 
  • statewide chilling of association and discourse through decreased democratic participation, fundraising, and candidate recruitment; 
  • increased statewide costs for voter education and candidate recruitment; and 
  • a statewide congressional delegation that fails to adequately reflect the interests of all North Carolina voters." 

One set of plaintiffs, those associated with the Common Cause suit, "who reside in all thirteen congressional districts—claim that they have standing to assert both statewide and district-by-district challenges to the 2016 Plan under the Equal Protection Clause, the First Amendment, and Article I."

Conversely, the NC legislative defendants believed that the plaintiffs lacked standing for three reasons:

  • "(1) a plaintiff may not rely on statewide standing to challenge an entire congressional redistricting plan as a partisan gerrymander; 
  • (2) individual Plaintiffs lack standing to lodge both statewide and district-by-district challenges because they have not suffered constitutionally cognizable injuries-in-fact; and 
  • (3) organizational Plaintiffs lack standing because no individual member has standing and no organizational Plaintiff suffered a concrete harm attributable" to the state's 2016 congressional redistricting plan. 

The three-judge panel rejected the legislative defendants' claims against the individual plaintiff's standing, but seemed to rely on the "statewide" standing argument, contending that "like the malapportionment of congressional districts, these injuries reflect structural violations amenable to statewide standing" (page 36). Additionally, the district court found that "in drawing the 2016 (congressional district) Plan, the General Assembly sought to achieve a statewide partisan effect. In such circumstances, we find it appropriate to view the 2016 Plan as inflicting a statewide partisan injury" (emphasis added). This may be the key area--statewide versus individual--that the district court has to review its reasoning.

In concluding their analysis of the standing challenges, the NC district court held that "(e)ven absent statewide standing, because Plaintiffs reside in each of the state’s thirteen districts and have all suffered injuries-in-fact, Plaintiffs, as a group, have standing to lodge district-by-district challenges to the entire 2016 Plan" (emphasis added). It is likely that the district court's upcoming review of the potential individual standing and injury questions will focus more heavily, and more fully explain, the individual, district-by-district standing argument of each plaintiff in order to meet the Gill standards laid out by SCOTUS.