On Monday, the Supreme Court released its long-awaited decisions in two major lawsuits arguing that electoral maps in Maryland and Wisconsin represented partisan gerrymanders that violated the Constitution, but in both cases, the justices declined to rule on the merits and instead sent both cases back to the lower courts on procedural grounds.
In the Maryland case, Benisek v. Lamone, the court let a Republican-backed challenge to the state’s 6th Congressional district proceed in federal district court without adjudicating the substance of the plaintiffs’ claims that Maryland’s map, which was created by Democrats, violates the First Amendment.
Meanwhile, in Gill v. Whitford, the Supreme Court vacated a lower court ruling that struck down Wisconsin’s GOP-drawn map of the state Assembly, finding that the Democratic voters who sued lacked standing—meaning they had not demonstrated their rights had been injured—to challenge the map on a statewide basis.
The Supreme Court’s move will now require plaintiffs to present new arguments before the district court. One option would be to challenge the map on a district-by-district basis, though such an approach is inherently more difficult for a variety of reasons. It’s also possible that different plaintiffs could demonstrate that they have standing to bring a statewide challenge. In particular, top Democratic election lawyer Marc Elias has suggested the Supreme Court’s ruling might allow Wisconsin’s Democratic Party to challenge the map as a whole.
These cases are far from over, and they could eventually find their way back before the high court. They’re also not alone: There’s an outstanding case in which a lower court struck down North Carolina’s congressional map as a Republican gerrymander that could make its way before the court when it returns in the fall, and present the justices with a different set of facts and legal arguments to choose from.
These rulings are a disappointment to reformers, but they by no means represent the kind of defeat that many feared in the fight for fair maps. Nevertheless, they’re a reminder that gerrymandering foes can’t rely only on the courts to curb the worst excesses of partisan gerrymandering. Progressives need to win elections at the state level to break the GOP’s grip on power, and activists must use ballot initiatives to create redistricting commissions where possible.