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The U.S. Supreme Court today punted on its biggest decision of the term so far. The court had been expected to rule on the limits - if any - of partisan gerrymandering. Instead, the justices unanimously sidestepped the major issues on technical grounds - sending the two cases back to the lower courts for further examination. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The two cases before the court illustrate the bare-knuckles practices both parties have used to maximize and perpetuate their own power in drawing legislative district lines. In Wisconsin, Republicans, who controlled the state legislature, drew district lines so that even when Democrats won a decisive statewide victory, in terms of votes, the GOP still carried nearly two-thirds of the legislative seats. In a second case from Maryland, Democrats drew congressional district lines to ensure that one of the two traditionally Republican congressional seats would flip to the Democrats.
Instead, of deciding the constitutional question, however, the justices unanimously said that the plaintiffs in the lead case from Wisconsin had not proved that they suffered the kind of injury that gave them the standing to seek intervention from the courts. In an unusual step, the justices, by a 7-to-2 vote, then sent the case back to the lower courts to give the Democratic voters a chance to present evidence of that kind of injury on a district-by-district basis instead of a statewide basis - New York University election expert Richard Pildes.
RICHARD PILDES: It has been true since 1986 that the court has said that partisan gerrymandering is unconstitutional. The question has been whether the court's going to put any teeth into that doctrine.
TOTENBERG: And after today's ruling, we still don't know whether there ever will be any teeth. Writing for the court in the Wisconsin case, Chief Justice John Roberts said that the statewide mathematical theory, advanced by the voters, did not prove that each legislative district was drawn with partisan intent that diluted their rights. A citizen's right to vote, said Roberts, is embodied in his right to vote for his representative - not on an abstract interest in the overall makeup of the legislature. For the case to succeed, the court said individual voters in each challenged district must offer proof of harm.
In a separate concurring opinion, Justice Elena Kagan, writing for the court's four liberals, laid out a road map for how the voters could prove their case in the lower courts. But Justice Anthony Kennedy - always considered the decisive vote in this case - did not sign the concurring opinion, meaning that it's not clear whether he agrees or disagrees with some or all of that opinion. Chief Justice Roberts specifically disavowed the Kagan opinion as in any way binding on the lower courts, including her suggestion that a broad First Amendment challenge might be the most effective and efficient statewide challenge to partisan gerrymandering. Richard Hasen is an elections expert at the University of California Irvine.
RICHARD HASEN: I see this as two of the court's savviest justices - Chief Justice Roberts and Justice Kagan - battling for the soul of Justice Kennedy.
TOTENBERG: The Roberts opinion for the court, in fact, decided as little as possible - leaving almost everything to another day. Most election experts seem to think the best vehicle for a decision in the next year or two would be a case from North Carolina currently sitting on the court's docket, which the justices could hear as early as next term. As for what standard will govern in the near future, Chief Justice Roberts left all options open.
KEITH GADDIE: It's still a Wild West out there, Nina.
TOTENBERG: Keith Gaddie is an elections expert hired by the Republicans in Wisconsin in the course of drawing the legislative maps in 2011. But six years later, he filed a friend of the court brief in the Supreme Court against the Republicans. Today's decision, he said, clarifies little.
GADDIE: Right now, you don't have clean sense of standing, a clean methodology in partisan gerrymandering. We just know that it is not democratic and therefore despicable. But we don't know if it's illegal.
TOTENBERG: Nina Totenberg, NPR News, Washington.
(SOUNDBITE OF EL MICHELS AFFAIR'S "CAN IT ALL BE SO SIMPLE")
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