Distinguished Visitor from Practice Paul M. Smith Ready to Reframe Wisconsin Gerrymandering Challenge

June 18, 2018

Georgetown Law Distinguished Visitor from Practice Paul M. Smith argued Gill v. Whitford in the U.S. Supreme Court on October 3. The Court remanded the case June 18.

Distinguished Visitor from Practice Paul M. Smith had high hopes that the Supreme Court would declare the Wisconsin legislative districting plan — known as Act 43 — at issue in Gill v. Whitford an unconstitutional gerrymander. Smith argued the case before the Court on October 3.

But on June 18, the Supreme Court, in a unanimous decision, remanded the case to the District Court — not convinced that the plaintiffs, as individual voters in their own legislative districts, had standing to challenge the constitutionality of the statewide plan. The plaintiffs will thus get another opportunity to prove that they suffered “concrete and particularized injuries using evidence that would demonstrate a burden on their individual votes.”

Smith — who is vice president of litigation and strategy at Campaign Legal Center (CLC) in addition to teaching at Georgetown Law — said the case is “very much still alive.”

“We now have the opportunity to demonstrate the real and concrete harms that result from partisan gerrymandering in the lower court, the same court that struck down the Wisconsin mapping scheme to begin with,” Smith said. The federal district court initially rejected the defendants’ standing argument and concluded that Act 43 was an unconstitutional partisan gerrymander. The Supreme Court agreed last summer to review the case during the October 2017 Term.

“Here, the plaintiffs’ claims turn on allegations that their votes have been diluted,” Chief Justice John Roberts wrote for the Court. “That harm arises from the particular composition of the voter’s own district, which causes his vote — having been packed or cracked — to carry less weight[.]” (The challengers’ theory of how to measure how many of each party’s votes are wasted by being either “packed” (concentrated in a few districts) or “cracked” (divided among multiple districts), is explained in Georgetown Law’s October Q&A and video.)

“Remedying the individual voter’s harm…does not necessarily require restructuring all of the State’s legislative districts,” Roberts continued. “It requires only such districts as are necessary to reshape the voter’s district — so that the voter may be unpacked or uncracked… 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.’”

Though the plaintiffs argued that their legal injury also extended statewide, owing to their interest “in their collective representation in the legislature,” the Court has “not found that this presents an individual and personal injury of the kind required for Article III standing,” Roberts wrote.

Staying Alive

In a press call sponsored by Campaign Legal Center just after the Supreme Court decision, Smith discussed the Court’s conclusion that the plaintiffs did not yet prove that they have standing to pursue their unconstitutional gerrymandering claim. “The basic bottom line [for us] is, there will be plaintiffs with clear standing, there will probably be more added, and when we get back to the district court, we should be in a position to win very substantial relief….,” he said. “Maybe [it will be] phrased in a different way, but if you have twenty or thirty different plaintiffs, each of whom has packing and cracking injuries to show in their one district, and they work together, you are going to end up redrawing effectively the whole map.”

Which means that Smith will be back in the district court trying to reframe the case. “I have reasonable optimism that we will be able to do that,” Smith said. “The evidence of actual harm here is all still there…we will just have to go forward taking the court’s advice about how to frame the issues so that the standing barrier goes away…we will have plaintiffs with standing from being in a packed or a cracked district.”

But on the other side of the case was Misha Tseytlin (L’06), solicitor general of Wisconsin, for the appellants. Tseytlin maintained all along in Court — and in a briefing at Georgetown Law after the October 3 arguments — that individual voters lacked standing to challenge the map statewide; and that the case was nonjusticiable. Tseytlin’s Georgetown Law classmate, Erin E. Murphy (L’06), represented the Wisconsin State Senate as amicus curiae.

“I am pleased that the Supreme Court unanimously agreed with our argument that the plaintiffs failed to establish that they have standing to bring their unprecedented statewide redistricting challenge,” Tseytlin told Georgetown Law after the June 18 decision.

Smith said that the challengers will proceed with the remand as quickly as possible. “This case has gone on long enough, and we have an election coming up in 2020 that is of massive importance — because whoever gets elected in that election will be there to draw the next set of maps,” he said. “That will be the goal for sure, to try and get it done in time for a full and fair redrawing of the map for the 2020 elections.”