- The highly anticipated U.S.
Supreme Court ruling on the Wisconsin lawsuit over
gerrymandering came out this week and was underwhelming.
In tonight's capital insight, how the court's opinion sending
Gill v.
Whitford back down to a lower court had experts calling it a
punt.
Wisconsin Public Radio's Capital Bureau Chief Shawn Johnson is
here.
Thanks for being here. - Hey Fred.
- It may have been a punt.
They didn't dismiss this thing outright,
leaving plaintiffs in the case saying that they feel like they
can make it anew.
- The more I digested it, the more I realized that the path
forward, it'll take time, but the hurdles they've put up are
not difficult for us to meet.
It'll happen.
- So the hurdles as Bill Whitford calls them include
going back and finding more plaintiffs in more districts
to prove their case.
- Yeah, but the bottom line is, I guess, going into this case,
a lot of people viewed the Wisconsin case as a chance for
the court to answer a question that has been grappled with for
decades, can there be a point at which the drawing of district
lines gets so bipartisan that a violates people's constitutional
rights.
The court didn't say yes or no with Wisconsin's case,
but it did keep the case alive.
- In fact, Chief Justice John Roberts wrote the opinion
stating that the plaintiffs lacked standing to bring the
lawsuit, while expressing no view on the merits.
He said, "It 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."
- And the court's unanimous remands to the lower court over
standing is what had Wisconsin Attorney General Brad Schimel
state this, "I am pleased that the highest court in the land
has unanimously reversed the trial court's erroneous decision
in validating Wisconsin's Assembly map.
Today is a win for the rule of law in Wisconsin and a testament
to the talented attorneys at the Wisconsin Department of
Justice."
- Not so fast, though, because even in her concurrence,
Justice Kagan offered a road map for plaintiffs in a new case.
So it's not necessarily over here.
And her road map, as I understand it,
included finding more plaintiffs or vigorously arguing an
infringement of First Amendment Rights of Association.
So those rights held by parties or political organizations and
their members.
- And she goes on to cite Justice Anthony Kennedy
extensively in her concurrence that he is the swing vote in
this case, and his opinion was widely viewed to be critical to
the outcome in the Wisconsin case,
and he was silent on this one.
- We didn't get a commitment from Kennedy.
And he dodged making a commitment.
And the whole case was really about getting Kennedy's vote and
that's still out there.
- And on this point, experts who've watched Wisconsin's case,
watched cases like this around the country,
and watched Justice Kennedy, agreed,
here is University of California-Irvine Election Law
Professor Rick Hasen.
- I think what we can read is that after a decade and a half,
Justice Kennedy still cannot make up his mind about what to
do about partisan gerrymandering.
In both the Wisconsin case and the Maryland case,
the court punted, put the issue off for another day,
didn't decide really anything big on the merits,
and decided to boot these cases on a technicality.
- So interestingly, he says Justice Kennedy still hasn't
made up his mind but it's not as though there hasn't been a lot
of time to do that.
- He has been well briefed, right?
This has been an issue that-- Kennedy wrote something in 2004
that made everybody think at some point,
we're going to revisit this and we're going to bring a case that
maybe Kennedy will like.
We'll bring a metric that maybe Kennedy will latch on to.
Maybe Wisconsin has that.
So not hearing from Justice Kennedy in this case is big.
I mean that was arguably the biggest thing to happen in this
case, is that we didn't find out what he thinks about all this.
- Meanwhile Plaintiff Whitford says maybe Wisconsin won't even
be the vehicle for the case that decides all of this.
- That's one school of thought.
There's another redistricting case out of North Carolina,
as of right now, the court hasn't said whether it will
hear.
So maybe North Carolina is the case that decides all this.
Hasen said, no, I think Wisconsin is going to be the
case.
That the Wisconsin case is going to end up back before the U.S.
Supreme Court and they're going to have to decide this thing one
way or another.
- And yet the timeline here is pretty critical.
We've come down to kind of the crunch time of 2020 elections.
- It's not going to happen in time for 2018 obviously,
but whoever gets elected in 2020,
the legislature that gets elected then,
will be the legislature that draws the next redistrict maps
that are in place in Wisconsin for the next decade,
so the 2020 election is critical.
- Everybody is going to be watching all over again.
- Watch that court again, that's right.
- Shawn Johnson, thanks very much.
- You're welcome.