Gill v. Whitford

In Gill v. Whitford, 138 S. Ct. 1916 (2018), the U.S. Supreme Court denied a challenge to redistricting in Wisconsin, based on a lack of standing by the parties who had not even demonstrated that they lived in one of the challenged districts.

Writing for the unanimous Court, Chief Justice John Roberts stated:

“

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. Cf. Alabama Legislative Black Caucus, 575 U. S., at ___, 135 S. Ct. 1257, 191 L. Ed. 2d 314, 329 (remanding for further consideration of the plaintiffs’ gerrymandering claims on a district-by-district basis).

”

Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018).

Kagan's concurrence

Justice Elena Kagan, joined by three other justices, concurred with an opinion that relied on the concurring opinion of Justice Kennedy in Vieth v. Jubelirer, 541 U.S. 267 (2004), which was another partisan gerrymandering case that focused on the Equal Protection Clause but included an alternative theory under the First Amendment.

Justice Kagan wrote that partisan gerrymandering may "infringe the First Amendment rights of association held by parties, other political organizations, and their members." Id. at 1938 (Kagan, J., concurring). She felt there are "significant First Amendment concerns ... when a State purposely subjects a group of voters or their party to disfavored treatment." Id. (citations and quotation marks omitted). This "associational harm" arises from the reality that a partisan gerrymander may "ravage[] the party [a citizen] works to support." Id. Members of such a "disfavored party" are "deprived of their natural political strength" and "may face difficulties fundraising, registering voters, attracting volunteers, generating support from independents, and recruiting candidates to run for office (not to mention eventually accomplishing their policy objectives)." Id.

See also Lyman v. Baker, 352 F. Supp. 3d 81, 90-91 (D. Mass. 2018).