The Next Partisan Gerrymandering Cases Before the Supreme Court

Following the Vieth decision (for my post on the decision, see here and for my Roll Call oped, see here), at least two partisan redistricting cases are pending before the Supreme Court. Colorado General Assemby v. Salazar has been listed four times for conference, and we may know something as early as Monday on this case. Over at SCOTUSBlog, Tom Goldstein writes:
"When cases are relisted that many times, the most likely outcomes are (a) a dissent from the denial of cert., and (b) a summary reversal. The question in this case involves the responsibility under the U.S. Constitution of the Colorado Legislature to design congressional districts. It has the feel of many of the issues presented by Bush v. Gore. Because that sounds like an unlikely candidate for summary reversal (including because we believe most members of the Court would strongly prefer to avoid revisiting issues related to Bush v. Gore), we predict a dissent from the denial of cert. by one or two Justices."

The Texas redistricting cases (here's a link to the docket sheet for one of the cases, Jackson v. Perry) are scheduled for conference on June 3. Following Vieth, the appellees declined to file a response. So the Supreme Court could summarily affirm, set the case for argument next term, or ask for a response from the appellees. Or, as with the Colorado case, the case could be put over.

Given that Vieth was a 5-4 decision, a dissent in the Texas case should there be a majority vote for summary affirmance seems fairly likely. In that case, we could see the case relisted after June 3 and therefore we won't see an order in the Texas case on June 7.

Putting aside the possibility that the Justices are interested in the Voting Rights Act claims in the Texas case, the outcome of the Texas case will depend wholly on Justice Kennedy. There are already four votes on the Court that partisan gerrymandering cases are wholly non-justiciable. In Vieth, Justice Kennedy held the door open ever so slightly for someone to come forward with a manageable standard that would separate the unconstitutional partisan gerrymander from acceptable partisan politics. He suggested a possible claim under the First Amendment.

Justice Kennedy was surely aware of the Texas case when he wrote his Vieth opinion (indeed, the plurality in Vieth cited the lower court opinion in the Texas case, in which the three-judge panel virtually begged the Supreme Court to establish a standard for partisan gerrymandering that it could apply to the case), yet he gave no indication that even the Texas facts would constitute a partisan gerrymander. Remember that Kennedy joined that part of the plurality in Vieth rejecting the Bandemer standard, the plaintiffs' proposed standard, and the alternative standards for gerrymandering proposed separately by Stevens, Souter, and Breyer.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
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