Gill v. Whitford

585 U.S.

Case Year: 2018

Case Ruling: 9-0

Opinion Justice: Roberts

FACTS

Wisconsin state legislators are elected from single-member legislative districts. Under the Wisconsin Constitution, the legislature must redraw the boundaries of those districts following each census. After the 2010 census, the legislature passed a districting plan known as Act 43. Twelve Democratic voters, the plaintiffs in this case, alleged that Act 43 harms their party’s ability to convert Democratic votes into Democratic seats in the legislature. They asserted that Act 43 does this by “cracking” certain Democratic voters among different districts in which those voters fail to achieve electoral majorities and “packing” other Democratic voters in a few districts in which Democratic candidates win by large margins.

Believing that the degree to which packing and cracking has favored one political party over another can be measured by an “efficiency gap” that compares each party’s respective “wasted” votes—i.e., votes cast for a losing candidate or for a winning candidate in excess of what that candidate needs to win—across all legislative districts, the voters claimed that the statewide enforcement of Act 43 generated an excess of wasted Democratic votes. As a result, they argued that Act 43 violated their First Amendment right of association and their Fourteenth Amendment right to equal protection.

The defendants, several members of Wisconsin’s election commission, argued that the plaintiffs lacked standing to challenge the constitutionality of Act 43 because, as individual voters, their interests extend only to the makeup of the legislative district in which they vote. The three-judge district court declined to dismiss the case and, following a trial, concluded that Act 43 was an unconstitutional partisan gerrymander. As to standing: the court held that the plaintiffs had suffered a particularized injury to their equal protection rights.

 

OPINION

Chief Justice Roberts delivered the opinion of the Court

[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has “a personal stake in the outcome,” Baker v. Carr (1962), distinct from a “generally available grievance about government.” That threshold requirement “ensures that we act as judges, and do not engage in policymaking properly left to elected representatives.” Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion …

Over the past five decades this Court has been repeatedly asked to decide what judicially enforceable limits, if any, the Constitution sets on the gerrymandering of voters along partisan lines … Our considerable efforts in Gaffney [v. Cummings (1973)], [Davis v.] Bandemer (1986), Vieth [v. Jubelirer (2004)], and LULAC [v. Perry (2006)] leave unresolved whether such claims may be brought … In particular, two threshold questions remain: what is necessary to show standing in a case of this sort, and whether those claims are justiciable. Here we do not decide the latter question because the plaintiffs in this case have not shown standing under the theory upon which they based their claims for relief.

To ensure that the Federal Judiciary respects “the proper—and properly limited—role of the courts in a democratic society,” a plaintiff may not invoke federal-court jurisdiction unless he can show “a personal stake in the outcome of the controversy.” We enforce that requirement by insisting that a plaintiff satisfy the familiar three-part test for Article III standing: that he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Foremost among these requirements is injury in fact—a plaintiff’s pleading and proof that he has suffered the “invasion of a legally protected interest” that is “concrete and particularized,” i.e., which “affect[s] the plaintiff in a personal and individual way.” Lujan v. Defenders of Wildlife (1992).

We have long recognized that a person’s right to vote is “individual and personal in nature.” Reynolds v. Sims (1964). Thus, “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage. The plaintiffs in this case alleged that they suffered such injury from partisan gerrymandering, which works through “packing” and “cracking” voters of one party to disadvantage those voters. That is, the plaintiffs claim a constitutional right not to be placed in legislative districts deliberately designed to “waste” their votes in elections where their chosen candidates will win in landslides (packing) or are destined to lose by closer margins (cracking).

To the extent the plaintiffs’ alleged harm is the dilution of their votes, that injury is district specific. An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. This “disadvantage to [the voter] as [an] individual[ ],” therefore results from the boundaries of the particular district in which he resides. And a plaintiff’s remedy must be “limited to the inadequacy that produced [his] injury in fact.” In this case the remedy that is proper and sufficient lies in the revision of the boundaries of the individual’s own district …

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

The plaintiffs argue that their legal injury is not limited to the injury that they have suffered as individual voters, but extends also to the statewide harm to their interest “in their collective representation in the legislature,” and in influencing the legislature’s overall “composition and policymaking.” But our cases to date have not found that this presents an individual and personal injury of the kind required for Article III standing.

We leave for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies. Justice Kagan’s concurring opinion endeavors to address “other kinds of constitutional harm,” perhaps involving different kinds of plaintiffs, and differently alleged burdens. But the opinion of the Court rests on the understanding that we lack jurisdiction to decide this case, much less to draw speculative and advisory conclusions regarding others. The reasoning of this Court with respect to the disposition of this case is set forth in this opinion and none other. And the sum of the standing principles articulated here, as applied to this case, is that the harm asserted by the plaintiffs is best understood as arising from a burden on those plaintiffs’ own votes. In this gerrymandering context that burden arises through a voter’s placement in a “cracked” or “packed” district …

Four of the plaintiffs in this case … pleaded a particularized burden along such lines. They alleged that Act 43 had “dilut[ed] the influence” of their votes as a result of packing or cracking in their legislative districts. The facts necessary to establish standing, however, must not only be alleged at the pleading stage, but also proved at trial. As the proceedings in the District Court progressed to trial, the plaintiffs failed to meaningfully pursue their allegations of individual harm. The plaintiffs did not seek to show such requisite harm since, on this record, it appears that not a single plaintiff sought to prove that he or she lives in a cracked or packed district. They instead rested their case at trial—and their arguments before this Court—on their theory of statewide injury to Wisconsin Democrats.

[For example,] [t]he plaintiffs asserted in their complaint that the “efficiency gap captures in a single number all of a district plan’s cracking and packing.” … The difficulty for standing purposes is that these calculations are an average measure. They do not address the effect that a gerrymander has on the votes of particular citizens. Partisan-asymmetry metrics such as the efficiency gap measure something else entirely: the effect that a gerrymander has on the fortunes of political parties.

Consider the situation of [one of the plaintiffs] Professor Whitford, who lives in District 76, where, defendants contend, Democrats are “naturally” packed due to their geographic concentration, with that of plaintiff Mary Lynne Donohue, who lives in Assembly District 26 in Sheboygan, where Democrats like her have allegedly been deliberately cracked. By all accounts, Act 43 has not affected Whitford’s individual vote for his Assembly representative—even plaintiffs’ own demonstration map resulted in a virtually identical district for him. [Another plaintiff] Donohue, on the other hand, alleges that Act 43 burdened her individual vote. Yet neither the efficiency gap nor the other measures of partisan asymmetry offered by the plaintiffs are capable of telling the difference between what Act 43 did to Whitford and what it did to Donohue. The single statewide measure of partisan advantage delivered by the efficiency gap treats Whitford and Donohue as indistinguishable, even though their individual situations are quite different.

That shortcoming confirms the fundamental problem with the plaintiffs’ case as presented on this record. 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 …

In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of [some] plaintiffs’ allegations that [they] live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.

We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.

The judgment of the District Court is vacated, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring

The Court holds today that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must prove that she lives in a packed or cracked district in order to establish standing. The Court also holds that none of the plaintiffs here have yet made that required showing.

I agree with both conclusions, and with the Court’s decision to remand this case to allow the plaintiffs to prove that they live in packed or cracked districts. I write to … make some observations about what would happen if they succeed in proving standing—that is, about how their vote dilution case could then proceed on the merits. The key point is that the case could go forward in much the same way it did below: Given the charges of statewide packing and cracking, affecting a slew of districts and residents, the challengers could make use of statewide evidence and seek a statewide remedy.

I also write separately because I think the plaintiffs may have wanted to do more than present a vote dilution theory. Partisan gerrymandering no doubt burdens individual votes, but it also causes other harms. And at some points in this litigation, the plaintiffs complained of a different injury—an infringement of their First Amendment right of association. The Court rightly does not address that alternative argument: The plaintiffs did not advance it with sufficient clarity or concreteness to make it a real part of the case. But because on remand they may well develop the associational theory, [it is possible that] a plaintiff presenting such a theory would not need to show that her particular voting district was packed or cracked for standing purposes because that fact would bear no connection to her substantive claim. Indeed, everything about the litigation of that claim—from standing on down to remedy—would be statewide in nature.

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy.

Justice Thomas, with whom Justice Gorsuch joins, concurring in part and concurring in the judgment

I agree that the plaintiffs have failed to prove Article III standing. I do not join [the part of the opinion] which gives the plaintiffs another chance to prove their standing on remand. When a plaintiff lacks standing, our ordinary practice is to remand the case with instructions to dismiss for lack of jurisdiction. The Court departs from our usual practice because this is supposedly “not the usual case.” But there is nothing unusual about it. As the Court explains, the plaintiffs’ lack of standing follows from long-established principles of law. After a year and a half of litigation in the District Court, including a 4-day trial, the plaintiffs had a more-than-ample opportunity to prove their standing under these principles. They failed to do so. Accordingly, I would have remanded this case with instructions to dismiss.