June 18, 2018

Supreme Court Decides Gill v. Whitford

On June 18, 2018, the Supreme Court of the United States decided Gill v. Whitford, No. 16-1161, holding that where voters assert that a state’s legislative districts have been improperly gerrymandered, those voters lack Article III standing where they allege a “statewide injury” and fail to establish that they have been injured personally by the gerrymandering.

Twelve Wisconsin voters filed a complaint challenging “Act 43,” Wisconsin’s legislative districting plan passed in 2011. The voters alleged that Act 43 was a partisan gerrymander that unfairly favored Republican citizens and candidates, resulting in violations of the voters’ rights under the First and Fourteenth Amendments. Four of the plaintiffs asserted that they lived in legislative districts harmed by Act 43’s gerrymander, and all of the plaintiffs claimed that they had been injured by Act 43’s manipulation of district boundaries, because it resulted in Democrats having less of an opportunity statewide to elect representatives of their choosing relative to Republicans. Election officials moved to dismiss the complaint, arguing among other things that the voters lacked standing to challenge the constitutionality of Act 43 writ large, because their legally protected interests include only the makeup of the legislative districts in which they reside.

A three-judge panel of the district court denied the election officials’ motion to dismiss. The district court ruled that the voters’ reduced opportunity to be represented by Democratic legislators throughout the state constituted a particularized injury sufficient to satisfy Article III’s standing requirement. That injury permitted the voters to bring a statewide claim. At trial, the district court reinforced its earlier standing ruling and found that Act 43 was unconstitutional. The election officials appealed directly to the Supreme Court pursuant to 28 U.S.C. § 1253.

The Supreme Court vacated the district court’s judgment, holding that the voters had failed to establish an “injury in fact”—the “[f]oremost” requirement to demonstrate Article III standing. The voters’ assertion of a “statewide injury” was insufficient to satisfy the “injury in fact” requirement given that remedying any unconstitutional dilution caused by Act 43 would not require revising all the legislative districts in the state. The correction, instead, could be accomplished by restructuring the districts that are needed to reshape the individual voter’s district to avoid the unconstitutional dilution. Nor was the voters’ “interest in the legislature’s overall composition and policymaking” a concrete and personal injury in fact, but merely a “generalized grievance” common to all members of the public. And because the four voters that had pleaded particularized harm by alleging that Act 43 diluted their votes in the legislative districts in which they resided never proved those facts at trial—instead “resting their case . . . on their theory of statewide injury to Wisconsin Democrats”—they also failed to establish an “injury in fact.” Without Article III standing, the Court held that it could not decide the case.

While the Court typically directs the dismissal of cases in which plaintiffs fail to establish standing, the Court declined to order that result in the voters’ case. Such an outcome was inappropriate, given the “unsettled” law regarding gerrymandering claims and the allegations by the four voters concerning the districts in which they lived. As a result, the Court remanded the case to the district court so that the voters may have an opportunity to prove “injury in fact.”

Chief Justice Roberts delivered the opinion of the Court, in which Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan joined, and in which Justices Thomas and Gorsuch joined except as to Part III (regarding the decision to remand the case). 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, in which Justice Gorsuch joined.

Download Opinion of the Court.

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