Frederica Freyberg:

The highly anticipated U.S. Supreme Court ruling on the Wisconsin lawsuit over gerrymandering came out this week and was underwhelming. In tonight’s capital insight, how the court’s opinion sending Gill v. Whitford back down to a lower court had experts calling it a punt. Wisconsin Public Radio’s Capital Bureau Chief Shawn Johnson is here. Thanks for being here.

Shawn Johnson:

Hey Fred.

Frederica Freyberg:

It may have been a punt. They didn’t dismiss this thing outright, leaving plaintiffs in the case saying that they feel like they can make it anew.

Bill Whitford:

The more I digested it, the more I realized that the path forward, it’ll take time, but the hurdles they’ve put up are not difficult for us to meet. It’ll happen.

Frederica Freyberg:

So the hurdles as Bill Whitford calls them include going back and finding more plaintiffs in more districts to prove their case.

Shawn Johnson:

Yeah, but the bottom line is, I guess, going into this case, a lot of people viewed the Wisconsin case as a chance for the court to answer a question that has been grappled with for decades, can there be a point at which the drawing of district lines gets so bipartisan that a violates people’s constitutional rights. The court didn’t say yes or no with Wisconsins case, but it did keep the case alive.

Frederica Freyberg:

In fact, Chief Justice John Roberts wrote the opinion stating that the plaintiffs lacked standing to bring the lawsuit, while expressing no view on the merits. He said, “It is a case about group political interests, not individual legal rights, but this court is not responsible for vindicating generalized partisan preferences. The court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”

Shawn Johnson:

And the court’s unanimous remands to the lower court over standing is what had Wisconsin Attorney General Brad Schimel state this, “I am pleased that the highest court in the land has unanimously reversed the trial court’s erroneous decision in validating Wisconsins Assembly map. Today is a win for the rule of law in Wisconsin and a testament to the talented attorneys at the Wisconsin Department of Justice.”

Frederica Freyberg:

Not so fast, though, because even in her concurrence, Justice Kagan offered a road map for plaintiffs in a new case. So it’s not necessarily over here. And her road map, as I understand it, included finding more plaintiffs or vigorously arguing an infringement of First Amendment Rights of Association. So those rights held by parties or political organizations and their members.

Shawn Johnson:

And she goes on to cite Justice Anthony Kennedy extensively in her concurrence that he is the swing vote in this case, and his opinion was widely viewed to be critical to the outcome in the Wisconsin case, and he was silent on this one.

Bill Whitford:

We didn’t get a commitment from Kennedy. And he dodged making a commitment. And the whole case was really about getting Kennedys vote and that’s still out there.

Frederica Freyberg:

And on this point, experts who’ve watched Wisconsins case, watched cases like this around the country, and watched Justice Kennedy, agreed, here is University of California-Irvine Election Law Professor Rick Hasen.

Rick Hasen:

I think what we can read is that after a decade and a half, Justice Kennedy still cannot make up his mind about what to do about partisan gerrymandering. In both the Wisconsin case and the Maryland case, the court punted, put the issue off for another day, didn’t decide really anything big on the merits, and decided to boot these cases on a technicality.

Frederica Freyberg:

So interestingly, he says Justice Kennedy still hasn’t made up his mind but it’s not as though there hasn’t been a lot of time to do that.

Shawn Johnson:

He has been well briefed, right? This has been an issue that– Kennedy wrote something in 2004 that made everybody think at some point, we’re going to revisit this and we’re going to bring a case that maybe Kennedy will like. We’ll bring a metric that maybe Kennedy will latch on to. Maybe Wisconsin has that. So not hearing from Justice Kennedy in this case is big. I mean that was arguably the biggest thing to happen in this case, is that we didn’t find out what he thinks about all this.

Frederica Freyberg:

Meanwhile Plaintiff Whitford says maybe Wisconsin won’t even be the vehicle for the case that decides all of this.

Shawn Johnson:

Thats one school of thought. There’s another redistricting case out of North Carolina, as of right now, the court hasn’t said whether it will hear. So maybe North Carolina is the case that decides all this. Hasen said, no, I think Wisconsin is going to be the case. That the Wisconsin case is going to end up back before the U.S. Supreme Court and they’re going to have to decide this thing one way or another.

Frederica Freyberg:

And yet the timeline here is pretty critical. We’ve come down to kind of the crunch time of 2020 elections.

Shawn Johnson:

It’s not going to happen in time for 2018 obviously, but whoever gets elected in 2020, the legislature that gets elected then, will be the legislature that draws the next redistrict maps that are in place in Wisconsin for the next decade, so the 2020 election is critical.

Frederica Freyberg:

Everybody is going to be watching all over again.

Shawn Johnson:

Watch that court again, that’s right.

Frederica Freyberg:

Shawn Johnson, thanks very much.

Shawn Johnson:

Youre welcome.