SUPREME COURT OF THE UNITED STATES No. 16–1161

                                                                                                                        BEVERLY R. GILL, et al., APPELLANTS v. WILLIAM WHITFORD, et al.

                                                                                                                                                                      June 18, 2018

Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, concurring.

The Court holds today that a plaintiff asserting a partisan gerrymandering claim based on a theory of vote dilution must prove that she lives in a packed or cracked district in order to establish standing. The Court also holds that none of the plaintiffs here have yet made that required showing. 

I agree with both conclusions, and with the Court’s decision to remand this case to allow the plaintiffs to prove that they live in packed or cracked districts. I write to address in more detail what kind of evidence the present plaintiffs (or any additional ones) must offer to support that allegation. And I write to make some observations about what would happen if they succeed in proving standing—that is, about how their vote dilution case could then proceed on the merits. The key point is that the case could go forward in much the same way it did below: 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.

I also write separately because I think the plaintiffs may have wanted to do more than present a vote dilution theory. Partisan gerrymandering no doubt burdens individual votes, but it also causes other harms. And at some points in this litigation, the plaintiffs complained of a different injury—an infringement of their First Amendment right of association. The Court rightly does not address that alternative argument: The plaintiffs did not advance it with sufficient clarity or concreteness to make it a real part of the case. But because on remand they may well develop the associational theory, I address the standing requirement that would then apply. As I’ll explain, a plaintiff presenting such a theory would not need to show that her particular voting district was packed or cracked for standing purposes because that fact would bear no connection to her substantive claim. Indeed, everything about the litigation of that claim—from standing on down to remedy—would be statewide in nature.

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” 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 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....

Everything said so far relates only to suits alleging that a partisan gerrymander dilutes individual votes. That is the way the Court sees this litigation....But partisan gerrymanders inflict other kinds of constitutional harm as well. Among those injuries, partisan gerrymanders may infringe the First Amendment rights of association held by parties, other political organizations, and their members. The plaintiffs here have sometimes pointed to that kind of harm. To the extent they meant to do so, and choose to do so on remand, their associational claim would occasion a different standing inquiry than the one in the Court’s opinion.

Justice Kennedy explained the First Amendment associational injury deriving from a partisan gerrymander in his concurring opinion in Vieth. “Representative democracy,” Justice Kennedy pointed out, is today “unimaginable without the ability of citizens to band together” to advance their political beliefs. That means significant “ First Amendment concerns arise” when a State purposely “subject[s] a group of voters or their party to disfavored treatment.” Such action “burden[s] a group of voters’ representational rights.” 

As so formulated, the associational harm of a partisan gerrymander is distinct from vote dilution. Consider an active member of the Democratic Party in Wisconsin who resides in a district that a partisan gerrymander has left untouched (neither packed nor cracked). His individual vote carries no less weight than it did before. But if the gerrymander ravaged the party he works to support, then he indeed suffers harm, as do all other involved members of that party. This is the kind of “burden” to “a group of voters’ representational rights” Justice Kennedy spoke of. Members of the “disfavored party” in the State, deprived of their natural political strength by a partisan gerrymander, 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). And what is true for party members may be doubly true for party officials and triply true for the party itself. By placing a state party at an enduring electoral disadvantage, the gerrymander weakens its capacity to perform all its functions....

On occasion, the plaintiffs here have indicated that they have an associational claim in mind. In addition to repeatedly alleging vote dilution, their complaint asserted in general terms that Wisconsin’s districting plan infringes their “ First Amendment right to freely associate with each other without discrimination by the State based on that association.” Similarly, the plaintiffs noted before this Court that “[b]eyond diluting votes, partisan gerrymandering offends First Amendment values by penalizing citizens because of . . . their association with a political party.” And finally, the plaintiffs’ evidence of partisan asymmetry well fits a suit alleging associational injury. As the Court points out, what those statistical metrics best measure is a gerrymander’s effect “on the fortunes of political parties” and those associated with them. 

In the end, though, I think the plaintiffs did not sufficiently advance a First Amendment associational theory to avoid the Court’s holding on standing..... 

But nothing in the Court’s opinion prevents the plaintiffs on remand from pursuing an associational claim, or from satisfying the different standing requirement that theory would entail. The Court’s opinion is about a suit challenging a partisan gerrymander on a particular ground—that it dilutes the votes of individual citizens. That opinion “leave[s] for another day consideration of other possible theories of harm not presented here and whether those theories might present justiciable claims giving rise to statewide remedies.” And in particular, it leaves for another day the theory of harm advanced by Justice Kennedy in Vieth: that a partisan gerrymander interferes with the vital “ability of citizens to band together” to further their political beliefs....

Partisan gerrymandering jeopardizes “[t]he ordered working of our Republic, and of the democratic process”....

And our history offers little comfort. Yes, partisan gerrymandering goes back to the Republic’s earliest days; and yes, American democracy has survived. But technology makes today’s gerrymandering altogether different from the crude linedrawing of the past. New redistricting software enables pinpoint precision in designing districts. With such tools, mapmakers can capture every last bit of partisan advantage, while still meeting traditional districting requirements (compactness, contiguity, and the like). Gerrymanders have thus become ever more extreme and durable, insulating officeholders against all but the most titanic shifts in the political tides. The 2010 redistricting cycle produced some of the worst partisan gerrymanders on record. The technology will only get better, so the 2020 cycle will only get worse.

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection”....