Ruling in cases from Wisconsin and Maryland, the justices gave little clarity to when so-called partisan gerrymandering goes further than the law allows. | J. Scott Applewhite/AP Photo Supreme Court punts on partisan gerrymandering cases

The Supreme Court on Monday passed up its two opportunities this term to rule on when and whether states violate the Constitution by drawing electoral maps that sharply favor one political party, leaving unresolved the glut of challenges to political maps working their way through federal courts.

Ruling in a pair of cases from Wisconsin and Maryland — one brought by Republicans and one brought by Democrats — the justices gave little clarity to when so-called partisan gerrymandering might go further than the law allows.


In the Maryland case, the Supreme Court unanimously upheld a district court judge’s decision not to grant a preliminary injunction blocking the state’s 2011 congressional map. The justices said the legal uncertainty around the issue justified the judge declining to grant that unusual order.

The high court also said the urgency of the request was undermined by the fact that most of the plaintiffs — Republican voters in Western Maryland who said the state's Democratic-controlled government violated their constitutional rights by rejiggering the state's congressional lines to oust a long-serving GOP congressman — failed to sue for five years after the map was enacted.

"In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request," the Supreme Court's unsigned opinion said.

In the Wisconsin dispute, the justices ruled unanimously that the Democratic voters challenging a state legislative map drawn in 2011 failed to prove they were injured by the drawing of the new boundaries. However, seven justices agreed to give the challengers another shot at making their case in the lower courts.

Chief Justice John Roberts' majority opinion noted that none of the individual plaintiffs in the case claimed to be in a district that was intentionally filled with a disproportionate number of Democrats ("packed") or drained of such voters ("cracked") in an attempt to give Republicans a near-guaranteed win.

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"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," Roberts wrote in a portion of his opinion joined by all his colleagues. "They instead rested their case at trial — and their arguments before this Court — on their theory of statewide injury to Wisconsin Democrats."

Roberts said that argument wasn't enough to sustain the individual voters' claims.

But the Supreme Court's three other Democratic appointees joined in Justice Elena Kagan's concurring opinion arguing that the door was still open to claims based on the statewide impact of a heavily gerrymandered map.

"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," Kagan said. "Partisan gerrymandering no doubt burdens individual votes, but it also causes other harms."

Justices Clarence Thomas and Neil Gorsuch said they would not allow the plaintiffs in the Wisconsin suit another shot at making their case.

The state's Republican attorney general, Brad Schimel, celebrated the ruling, calling it a "win for the rule of law in Wisconsin." But a lawyer for the challengers to the map said that suit will continue.

"This 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,” said Paul Smith of the Campaign Legal Center.

Kagan's opinion in the Wisconsin case went on to rail against the evils of partisan district drawing and to stress that the court will have to square up to the issue soon.

"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," Kagan wrote. "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."

The rulings Monday in the Maryland and Wisconsin cases shed only a little light on what may be the critical factor to the ultimate outcome of the partisan gerrymandering issue at the Supreme Court: what Justice Anthony Kennedy thinks about whether technological changes mean the Supreme Court should become more assertive about policing districts designed to favor one political party.

Kennedy went along with the court's majority in both cases, but did not write or join any concurrence that might have clarified his views. The Reagan appointee and frequent swing justice has been widely seen as the pivotal vote on the issue, having ruled in a 2004 case that he would sustain a challenge to partisan gerrymandering in some cases if a "workable standard" was found to detect and resolve such disputes.

The high court's decision to sidestep the substance of the pair of closely watched cases led to speculation that the court may be eyeing another dispute as a better vehicle to weigh in on the constitutionality of partisan gerrymandering: a fight over North Carolina's congressional map. In January, the Supreme Court blocked a lower court's order requiring the state to redraw the map because it unfairly favored Republicans.

North Carolina's map was already redrawn once, after the courts found it was an improper racial gerrymander. But Democrats sued again after the GOP-controlled state legislature drew a new map that resulted in the same partisan composition of the state's congressional delegation: 10 of the state's 13 congressional seats are currently held by Republicans.

The high court has yet to formally announce that it will hear full arguments in the North Carolina redistricting case in its next term, but — with the two pending cases now resolved — it could make such a move public as soon as Monday, setting up another showdown on the partisan gerrymandering issue as early as this fall.

Activists who have been crusading against heavily gerrymandered districts expressed disappointment that the court backed away from the chance to grapple with the issue.

"While I am disappointed that the Supreme Court has chosen not to decide on the merits of extreme partisan gerrymandering for now, it is not the end of the war for fair districts. It is a call to action," former Gov. Arnold Schwarzenegger (R-Calif.) wrote on Facebook

But the National Republican Redistricting Trust, a group that seeks to maximize the GOP's ability to redraw political maps in the next decade, praised the rulings and urged the court to go further in protecting states' partisan prerogatives in redistricting.

“Once again, plaintiffs seeking refuge through the courts for their political geography problems have been sent back to the drawing board," said Jason Torchinsky, an attorney for the group. "In the future the court should go further and rein in the flood of political gerrymandering litigation that is clogging federal courts with dubious political science theories."