Ever since Trump was elected, I have almost been expecting some cheeky director to do a revival of Evita, the Andrew Lloyd Webber & Tim Rice musical from the late 70’s about Eva Peron with one not so subtle change to the wardrobe of the cast — specifically having the Peronists wearing t-shirts saying “Make Argentina Great Again.”  At times, our current president seems almost a parody version of the musical with Juan and Eva Peron merged into one person.

Now what does Evita have to do with the Supreme Court cases from this term on partisan gerrymandering (and other election law cases).  Kindly turn your attention to the closing number of Act One, “A New Argentina.”  Amidst many Trump-like pledges to restore Argentina and place the workers first, we have this wonderful verse from Che, commenting on the Peronist tactics:  “How annoying that they have to fight elections for their cause.  The inconvenience, having to get a majority.  If normal methods of persuasion fail to win them applause, there are other ways of establishing authority.”

In the post-2010 era, a combination of voter suppression tactics (see the many disputes about purging the voter rolls and requiring ID and proof of citizenship to vote) and the modern form of gerrymandering create a situation in which one party can have the support of the majority of adult citizens but the other party can steal maintain control of the government.  If the concepts of a democracy and a “republican form of government” mean anything, it means that a simple majority should be enough to determine who wins control of a state legislative house or the U.S. House of Representatives.

While gerrymandering has always been with us (and different younger democracies have set up non-partisan measures to block the tendency of legislators to legislate district lines that protect their own seats from the potential wrath of their constituents), modern technology and certain, not necessarily wholly legitimate data sources, make it easy to manipulate district lines in order to make it easy for win party to win control and next to impossible for the other party to win control with anything short of a landslide.   Faced with the question of whether the judicial system would protect the voters of America from people trying to evade the basic rules of a democracy, the Supreme Court did what the Supreme Court does best these days — find a procedural issue that allows them to avoid the tough issue.

Technically, the U.S. Supreme Court decided two cases this past Thursday.  The first from Wisconsin (Gill) involved a final decision of a three-judge panel finding that the legislative lines in Wisconsin were so biased in favor of the Republican party that they were not fair.  In its decision sending the case back to the panel for additional evidence and findings, the United States Supreme Court unanimously found that individual plaintiffs could only raise complaints about their own districts (in legal jargon, lacked standing to complain about other districts) — and since the plaintiffs in this case only lived in some of the districts and did not present evidence specific to their own districts — seven justices found that the case had to go back to allow those witnesses to present such evidence (or for additional plaintiffs to join who live in the “problem” districts or for an organizational plaintiff who could present state-wide concerns to join).  Justices Thomas and Justice Gorsuch would have used this “flaw” in the evidence to dismiss the case entirely, but Chief Justice Roberts (speaking for the other seven judges) decided that — since there was no clear law before this decision on the “rules” for a partisan gerrymander claim — the plaintiffs should get a chance to meet the vague requirements imposed by this decision.  Justice Kagan (in a concurring opinion speaking for the four “liberal” Justices) attempted to suggest what needs to be proved on the merits to prevail.  The majority opinion suggests that an equal protection partisan gerrymander claim would resemble a racial gerrymander case — with the court identifying individual districts that were improperly drawn and the remedy limited to those districts and those adjoining districts that need to be altered to fix the problem districts.

The second case from Maryland (Benisek) involved a request for a preliminary injunction — a temporary remedy given after a short hearing designed to prevent the parties from being harmed while the case is pending for a full hearing on the merits — altering the Congressional District lines drawn by Maryland Democrats.  While one of the factors considered in granting a preliminary injunction is whether the party seeking the injunction has shown that they have a realistic chance of winning at the full hearing, that is only one of the factors.  Other factors attempt to balance the harm from delaying any potential remedy against the harms from granting a temporary remedy that is ultimately not justified.  On this case, the Supreme Court issued an unsigned opinion finding that, given the balance of harms and the delay in bringing the case, the trial court acted within its authority in declining to grant a preliminary injunction without expressing any opinion on the ultimate strength of the claim for relief.

These two decisions effectively guarantee that the 2018 elections, and more likely than not, the 2020 elections will be fought on the lines drawn in 2011 — barring relief from state courts as in Pennsylvania.  There is an appeal of a decision invalidating the North Carolina lines pending with the Supreme Court.  We should know by next Friday if the Supreme Court will schedule that case for argument, but the current “common wisdom” is that it is most likely that the Supreme Court will ask the panel in North Carolina to reconsider its decision in light of the decision in Gill.  If the North Carolina decision is sent back down, it might get back to the Supreme Court in time for the upcoming 2018-19 term.  (There is at least some indication from the party’s arguments that the challengers think that they do not have the standing problem that was present in Gill and the panel could quickly re-issue the earlier decision if they agree.)

After Friday’s opinion day, there are six cases left.  Some will be issued on Monday, but there is a good chance of a second opinion day which could be anywhere from Tuesday to Thursday (theoretically could be Friday, but the justices probably want out sooner than that to beat the holiday traffic at the airports).   There are four big cases left:  Janus on union fees (probably by Justice Alito, Justice Thomas,  Justice Ginsburg or Justice Kagan depending on which way Justice Gorsuch went); the California Pregnancy Resource Center case (probably Justice Thomas which is not a good sign); Abbott — the Texas racial gerrymandering case (probably Justice Alito which is also not a good sign); and finally the immigration ban (probably Chief Justice Roberts).  There is also a water dispute from January which will probably go to Justice Breyer and an anti-trust case involving credit cards from February which will go to one of the three justices that did not get Janus.