[UPDATED: Justice Elena Kagan has requested a response to the state’s application, due on Wednesday, June 7, by 11 a.m.]

In March, the state of Wisconsin asked the Supreme Court to review a decision by a three-judge court striking down the redistricting map that the Republican-controlled legislature created after the 2010 census. The three-judge court concluded that the map was the result of partisan gerrymandering – that is, purposely drawing district lines to favor one party and put another at a disadvantage. The justices will consider the case at their June 8 conference, but yesterday Wisconsin added a new request to the case, asking the Supreme Court to block a court order requiring the state legislature to create a new plan by the fall.

The issue of partisan gerrymandering has deeply divided the Supreme Court. In 2004, the justices considered a challenge to Pennsylvania’s redistricting plan and issued a split ruling that resolved little. Four justices believed that courts should never review partisan gerrymandering claims, reasoning that it is too hard to come with a manageable test to determine when politics plays too influential a role. Four other justices believed that courts should be able to review partisan gerrymandering claims. Justice Anthony Kennedy provided the crucial vote in the case: He agreed that the Supreme Court should stay out of the Pennsylvania case, but he left open the door for courts to have a role in reviewing partisan gerrymandering cases in the future if a workable standard could be found.

In yesterday’s filing, Wisconsin officials argued that the lower court’s decision striking down the redistricting plan was so “fundamentally flawed” that the justices should consider reversing it without even asking for additional briefing or oral argument. If the court were take that route by the end of June, the state explained, there would be no need for the justices to put the lower court’s order on hold.

But if the Supreme Court instead opts to review the case on the merits, with oral argument in the fall, the state continued, then it should spare the state from having to comply with the lower court’s deadline. Blocking the order would save the state the trouble of creating a new map until the Supreme Court can rule on the validity of the old plan, the state claims. And if the state ultimately prevails – as it believes it will – it can simply continue to use the old plan. Moreover, even if the Supreme Court were to agree with the challengers that the plan must go, the court’s eventual opinion will provide “significant guidance” for the state to use in drafting a new redistricting plan. “It would be a serious intrusion,” the state concludes, on the state’s “sovereign resources to force it to redraw a map half-blind, guided by only an indisputably-flawed district court opinion.”

The state has asked the justices to consider its new request “contemporaneously” with its brief seeking review of the lower court’s decision, so the court likely will not act on yesterday’s request until after June 8. However, the court could ask the challengers to respond to the request before then.

Recommended Citation: Amy Howe, Wisconsin seeks stay as back-up plan in partisan gerrymandering case [UPDATED], SCOTUSblog (May. 24, 2017, 11:03 AM), https://www.scotusblog.com/2017/05/wisconsin-seeks-stay-back-plan-partisan-gerrymandering-case/