Gill v. Whitford — Court Opinions to Voters: Here's How You Win

In Wisconsin gerrymandering case, voters
have to wait while Republicans rampage.
Waiting image by Edward Hopper.

The United States Supreme Court did more than provide voters with a roadmap back to the Court in Gill v. Whitford, Wisconsin's gerrymandering case.

The four liberal judges' concurring opinion built a legal yellow-brick road and a fast-track for Wisconsin voters to prevail against the Republican state-election riggers, going so far as to suggest evidence, argument, type of plaintiff and harm claims that would presumably snag at least Justice Anthony Kennedy's vote.

That's a pretty good result from an order to remand to lower court that has Republicans pretending to ballyhoo.

The three-judge, lower-court panel, except for Federalist Society-linked, rightwing and corrupt Judge William Griesbach, will likely not be amused by Republican stalling this time around.

Wisconsin Republicans are lying about the no-decision, passing Roberts' opinion off as an unanimous decision on the merits, which it definitely is not, an indisputable fact that everyone except for Gov. Scott Walker (R) and Attorney General Brad Schimel (R) understands.

Gill v. Whitford is not a "reversal," as Schimel pretends. It's a do-over.

Concludes Chief Judge John Roberts: "The judgment of the District Court is vacated, and the case is  remanded for further proceedings consistent with this opinion," (p.22).

Further proceedings in this case means litigation at the three-judge panel in the Court of Appeals for the Seventh Circuit jurisdiction, then directly back to United States Supreme Court.

Roberts went out of his way not to dismiss the claims, calling the claims "unsettled," (p.21) and unresolved. Kennedy likely forced this most-significant of concessions by Roberts. The two Soviet-minded justices, Thomas and Gorsuch, write in a concurring opinion they want the case dismissed.

Though Roberts frustrates voting rights by dismissing the argument that engineering one-party control of the legislature through gerrymandering is a mere "generalized" claim not sufficient for the Court to hear and decide, a ridiculous position, the take-away from Gill v. Whitford is obvious.

Roberts wants to decide the case, and wants a nationwide, precedent-setting (and narrow) remedy for voters getting the shaft on gerrymandering by craven state politicians.

Frustrating for sure, because now pro-democracy forces have to wait and Republican-appointed justices' forced a punt on a case they should have decided now.

But from a Supreme Court that is hostile to Due Process claims, perverse on the First Amendment and corrupted for Republican interests on political cases, there is ample reason in the opinions for voters to celebrate: A coming victory in a year or two assuming Anthony Kennedy does not retire.

Wisconsin Gerrymandering Case — Sent Back to Lower Court for Further Proceedings

Updated: "[P]artisan  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 Kagen, joined by Justices Ginsberg, Breyer and Sotomayor, (p.2 of concurring opinion)
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Wisconsin's Republican gerrymandering scheme is remanded back to lower court for further proceeding, the United States Supreme Court ruled today, (Howe, SCOTUSBlog).

The court sends the case back for further proceedings, "in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion," notes Amy Howe.

Decision is here.

Writes Howe:

The court explains that it would normally order the dismissal of the plaintiffs' claims, but 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 unreslved." So the court sends the case back to the district court to give the plaintiffs a chance to show that they themselves have suffered "concrete and particularized injuries."

by Amy Howe 9:21 AM

What happened is the swing-vote Kennedy is so weak and suspicious of liberty claims that the four liberal justices went along with remanding the case so plaintiffs, voters, can establish incontrovertible standing and harm inflicted by the Republican redistricting scheme in Wisconsin.

The concurring opinion by Kagen, joined by the three liberal justices, makes clear Kennedy as well is looking for a precedent-setting opinion that applies nationwide, not statewide in Wisconsin.

Writes Kagen, (p.2 of concurring opinion):

Partisan gerrymandering, as this Court has recognized, is  'incompatible  with  democratic  principles.'   Arizona State   Legislature v.   Arizona   Independent   Redistricting  Comm’n,  576  U.  S.  ___,  ___  (2015)  (slip  op.,  at  1)  (quoting  Vieth v.  Jubelirer,  541  U.  S.  267,  292  (2004)  (plurality  opinion); alterations omitted).
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 (United States Constitution and standing to litigate) 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.  

Liberty-loving voters just have to wait another year, and hope Kennedy does not retire.

Wisconsin Legislative Districts Will Likely Stay Same for 2018 after Gerrymandering Case

Molly McGrath (left), a voting rights attorney with the ACLU,
works with Madison residents to get the IDs they
need to vote under Wisconsin’s restrictive voter-ID law.
(Courtesy of Molly McGrath). From In These Times.

The Wisconsin congressional and state voting districts will remain the same for the 2018 elections, no matter the decision of the gerrymandering case before the United States Supreme Court, (Gill v. Whitford, Mal Contends), (Gill v. Whitford, Cornell, - Gill v. Whitford, MortizLaw, - Gill v. Whitford, U.S. Supreme Court).

Military and Overseas Voter Empowerment Act (MOVE)

This is because in part the 2018 voting process for the mid-term general elections will begin on June 28 one month from today, in accordance with federal law pertaining to military and overseas voters, (Military and Overseas Voter Empowerment Act (MOVE)).

MOVE mandates states transmit ballots for federal elections "to absent uniformed services and overseas voters no later than 45 days before federal elections." The manner of transmission of ballots in Wisconsin is absentee ballots, including for military voters the use of electronic absentee ballots, if requested.
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June 1 is the deadline for congressional and state candidates to submit nomination signatures and other paperwork to qualify for candidacy.

To change the voting rules of the 2018 Wisconsin mid-term elections in the middle of the election process would present Due Process and Equal Protection violations inflicted on voters and candidates.
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In the 2016 presidential general election, 819,316 voters cast absentee ballots, a figure likely to be approached in this year's mid-term elections because of increased voter access in defiance of Republican voter suppression efforts, and in accordance with residents' right to vote under the Wisconsin Constitution.