The U.S. Supreme Court heard oral argument in a partisan gerrymandering case from Wisconsin, Gill v. Whitford, last October. The case provided an initial test for the efficiency gap, a proposed standard for determining discriminatory effect that counts the number of votes each party wastes in an election to determine whether either party enjoyed a systematic advantage in turning votes into seats. A decision is still pending.
On Wednesday, the U.S. Supreme Court will hear oral argument in a second case of partisan gerrymandering from Maryland, Benisek v. Lamone. This case provides an initial test of a First Amendment theory under political association.
Amy Howe of SCOTUSblog has an Argument preview:
In October, the Supreme Court heard oral argument in a case alleging that Wisconsin’s Republican-controlled legislature had drawn the state’s redistricting plan to put Democrats at a disadvantage – a claim known as “partisan gerrymandering.” The plaintiffs challenging that plan argued that it violated their constitutional right to be treated equally under the law, but Justice Anthony Kennedy suggested that the issue might be better framed as a violation of the freedom of speech and association guaranteed by the First Amendment. [On Wednesday], the justices will hear oral argument in another redistricting case – this time, a challenge by Republican voters to a single federal congressional district drawn by Democratic officials in Maryland – presenting precisely that question. The Supreme Court’s rulings in the Wisconsin and Maryland cases will almost certainly shape the face of redistricting for years, if not decades, to come.
The justices have long struggled with the question of what, if anything, courts should do about partisan gerrymandering.
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At October’s oral argument in the Wisconsin case, there seemed to be a fairly broad consensus that partisan gerrymandering is, as Justice Samuel Alito indicated, “distasteful.” But there was no apparent agreement on whether courts should review partisan-gerrymandering claims or, if so, what standard they should use to do so. In particular, some of the court’s more conservative justices worried aloud that the statistics-based standards proposed by the Wisconsin challengers were, as Chief Justice John Roberts put it, “sociological gobbledygook” that the general public wouldn’t be able to understand. That, Roberts believed, would lead to a perception that the court favored the winning side, which would in turn “cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.”
Two months after the oral argument in the Wisconsin case, the justices announced that they would also review the Maryland case, known in the Supreme Court as Benisek v. Lamone. The plaintiffs in the case contend that Democratic election officials in Maryland gerrymandered the state’s 6th congressional district in 2011 in retaliation for the plaintiffs’ support for Republican candidates – specifically, Roscoe Bartlett, who represented them in Congress for two decades. Although election officials only had to adjust the district by approximately 11,000 votes to account for the most recent census results, the plaintiffs argue, they instead moved out roughly half of the existing district’s residents, creating “more than a 90,000-voter swing in favor of registered Democrats—a complete upheaval for a district in which typically 230,000 voters cast ballots in midterm elections.” As a result, although Bartlett had won re-election in 2010 by a margin of 28%, in 2012 he lost by a margin of 21% to John Delaney, who announced last year that he would seek the Democratic nomination for president in 2020 rather than running for re-election. More broadly, the plaintiffs allege, the partisan gerrymander also violated the First Amendment because it “disrupted and depressed Republican political engagement in the area, and manifestly diminished their opportunity for political success.”
The dispute now before the Supreme Court centers on what the plaintiffs must show for their First Amendment retaliation challenge to partisan gerrymandering to go forward. Federal law requires that the initial review of redistricting challenges be conducted by a three-judge panel. The plaintiffs in this case argue that the three-judge district court required them to show that the gerrymander had changed the outcome of the election and would change the outcomes of future elections as well. But all they should have to show, the plaintiffs maintain, is that they have suffered some injury.
More generally, however, the plaintiffs try to assuage the concerns voiced at October’s oral argument in the Wisconsin gerrymandering case, and to convince the justices that the First Amendment retaliation doctrine provides a “ready-made” and manageable standard with which to review partisan-gerrymandering claims. In particular, and unlike partisan-gerrymandering claims alleging violations of the right to equal protection under the law, First Amendment retaliation claims don’t require courts to determine when political considerations become too influential. Instead, the plaintiffs contend, courts simply have to determine whether a redistricting plan imposes “a real and practical burden” on the plaintiffs “in retaliation for past political support for the opposition party.” Those burdens can range from the obvious, such as drawing the map in a way that would “make it effectively impossible for opposition candidates to win,” to the less tangible – for example, stifling voter engagement and support. But the important thing, the plaintiffs emphasize, is that such burdens can be evaluated with “traditional evidence” under “familiar legal standards.”
Evaluating partisan-gerrymandering claims as First Amendment retaliation claims would have other advantages, the plaintiffs continue. Because First Amendment retaliation claims are personal to each plaintiff, they note, the claims are litigated district by district, rather than statewide – just like race-based redistricting claims. Given the frequent correlation between race and party identification, the plaintiffs suggest, recognizing such retaliation claims “would eliminate the need for courts to disentangle race and politics in redistricting cases and better ensure that the right to vote is protected regardless of political persuasion or race.”
A ruling for the plaintiffs would not mean that mapmakers can never consider politics when drawing new districts, they stress. Mapmakers can certainly take politics into account, and they can even use data containing information about when residents voted and their party affiliation. But what mapmakers can’t do, they conclude, is use that data to make “it harder for a particular group of voters to achieve electoral success because of the views they had previously expressed.”
State officials push back against the idea that the 2011 map of the 6th district was drawn to retaliate against the plaintiffs for their support of Republican candidates. Instead, they tell the justices, the 2011 plan simply restored the 6th district to something along the lines of what it had been for most of the 20th century, when it contained more Democrats than Republicans. This confirms, they contend, that courts shouldn’t simply look at how the latest plan compares with its predecessor. Doing so, they caution, could have the unintended effect of thwarting efforts to correct existing partisan gerrymanders. And the 6th district is still a competitive one, they observe, as evidenced by the fact that Republican governor Larry Hogan carried the district by 14 percentage points in 2014.
The state officials also maintain that First Amendment retaliation claims pose the same problem as partisan-gerrymandering claims based on a right to equal protection of the laws: There is no manageable standard by which to evaluate them. The plaintiffs’ standard for First Amendment claims gives too much discretion to the reviewing courts, the officials contend, creating the prospect that redistricting plans will be invalidated whenever there were any partisan motives at all. Courts will also have to speculate about whether the mapmakers intended to retaliate against the challengers, which is a particularly difficult task because redistricting takes into account many different views and motivations.
Nor does the fact that First Amendment retaliation claims involve only a single district, rather than a challenge to a statewide map, somehow make them preferable to equal protection claims as a cause of action to address partisan gerrymandering, the officials argue. Focusing on only one district in isolation is unrealistic, they contend, because decisions made about other districts will necessarily affect the neighboring districts. Here, for example, African-American lawmakers had asked the mapmakers to tinker with the districts in nearby Prince George’s County so that the county – whose population is 65% African American – was divided up among only two congressional districts, rather than three. The mapmakers also wanted to keep communities along the I-270 corridor, which officials describe as home “to a thriving technology sector,” all within one district.
At the oral argument in the Wisconsin redistricting case last fall, lawyer Paul Smith – who argued on behalf of the challengers – warned ominously that, because the electorate is so polarized and it has become so easy for experts to predict how people will vote, the court will be confronted with a “festival of copycat gerrymandering” if the Wisconsin map is upheld. At the same time, the justices are no doubt aware of recent political developments, including the special-election victory by Democrat Conor Lamb in a Pennsylvania district that had previously been regarded as so solidly Republican that Democrats often didn’t even put up a candidate. Will these developments give some justices comfort that, even if courts don’t step in to check partisan gerrymandering, the political process will take care of it? Or will Kennedy conclude that courts have a role to play in curbing partisan gerrymandering, and that the First Amendment retaliation doctrine provides the best framework for them to do so? We’ll know more after Wednesday’s argument. Stay tuned.
Election law attorney Rick Hasen writes in this op-ed at POLITICO, The Supreme Court Case That Could Transform Politics:
On Wednesday, the Supreme Court hears arguments in Benisek v. Lamone, a case about whether Maryland violated the First Amendment rights of Republican voters by redrawing the state’s congressional districts with the goal of making it unwinnable for an incumbent Republican member of Congress. The case may answer not only that question but also a broader one about the courts’ proper role in the political process: Will the late Antonin Scalia’s view that courts should mostly refuse to police incumbency protection and political self-interest prevail?
The Benisek ruling revolves around whether the court is willing to let incumbents set the rules for their own elections to office. In many states, legislators have the power to approve the lines used to create districts in which they will run for reelection—and it is no surprise that these districts are often drawn to the majority party’s advantage, a process known as gerrymandering.
Such was the case in Maryland, where the Democratic-controlled state government redrew congressional boundaries ahead of the 2012 elections in such a way so as to deprive Republican voters of a majority in one of the state’s two remaining GOP-majority congressional districts. There’s no real disagreement over whether this was the Democrats’ motivation—then-Governor Martin O’Malley testified in a 2017 deposition that it was his “hope” and “intent” that redistricting would oust incumbent GOP Congressman Roscoe Bartlett from office, which it did.
The Republican voters who filed the Benisek case argue that just as the government cannot make decisions to hire and fire nonpolicymaking government employees based on whether they are Democrats or Republicans, Maryland’s redistricting plan illegally discriminates against them in elections solely because they are Republicans.
Although Democrats were the gerrymanderers in Maryland, that’s relatively rare these days. With the GOP in control of the legislature in 32 states—and in control of both the legislature and governorship in 26—most gerrymandering cases at the moment involve Republican legislatures sticking it to Democrats. In North Carolina, for instance, after courts forced the state to draw new districts in 2016 when its old ones were found to be racially gerrymandered, the Republican-controlled state Legislature made things even more uneven: The deep-purple, roughly 50-50 state now had a map where Republicans controlled 10 of 13 congressional seats. Asked why he gerrymandered a 10-3 Republican advantage, North Carolina state Representative David Lewis was candid: “Because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
One might think that such self-interested sentiments on the part of political incumbents would have bothered Scalia, the conservative Supreme Court justice who died two years ago last month. In the context of campaign finance law, Scalia was deeply distrustful of politicians, even when they said they were limiting money in politics for altruistic motives. An “incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition,” Scalia wrote in one 1990 ruling. On the issue of money in politics, he believed that virtually any limit violated the First Amendment, and saw such restrictions as incumbency protection schemes passed by legislators to keep themselves in power.
But Scalia was inconsistent when it came to incumbency protection. He dissented in a 1990 case where the majority found that Illinois’ Republican governor would violate the First Amendment by firing or hiring janitors or administrative assistants solely because they were Democrats. Political patronage, Scalia wrote, helped grease the wheels of politics and promoted strong political parties, despite the burden on the First Amendment rights of these nonpolitical workers. In another case, he concluded that the Constitution contained no guarantee of a “fair shot” to win an election.
When it came to gerrymandering, Scalia also favored the incumbents, believing that courts were powerless to do anything about their geographical self-preservation schemes.
For decades, the Supreme Court struggled with when and how to regulate the drawing of legislative districts for partisan and self-interested purposes.
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Now the issue has come to a head. Gerrymandering has become both more egregious and more effective. Rampant partisanship has inflamed the redistricting process, and leaps in voter data and technology have made it easier to draw effective gerrymanders that allow a party to gain seats in a legislature even as the opposing party wins a majority of the votes—as two leading political scientists wrote in a brief filed in a Wisconsin political gerrymandering case. With Benisek, the court has its last best chance to come up with a standard to police gerrymandering ahead of the 2020 Census and the redistricting that will follow.
Much like during Scalia’s life, Kennedy holds the keys to the kingdom, at least for the short term. If he decides Maryland has gone too far in depriving Republican voters of their First Amendment rights, the court could well decide to start policing redistricting—not just in Maryland, but throughout the nation.
But Kennedy will not remain on the court forever, and the forceful counterarguments Scalia made in the redistricting and patronage cases could well win out in the long run if President Donald Trump gets to replace Kennedy—or any of the aging liberal members of the court—with another justice like Scalia, as he has promised to do. Scalia’s views were deeply influential among conservatives, who have followed his lead in only being concerned about incumbency protection when it comes to campaign finance.
If Scalia’s views ultimately prevail, the kind of brazen redistricting we’ve seen in states like Maryland, Wisconsin and North Carolina will become the new norm. So victory may come in for gerrymandering challengers in these cases in the short term, but in the long term, Scalia’s views may live on. On this question and many others, Scalia may be more influential in death than in life.
How the Court rules in Gill v. Whitford and Benisek v. Lamone, and the standard the Court adopts, if any, will affect the disposition of several other redistricting cases currently pending before the Court. These case could be remanded for reconsideration consistent with the new standard, if any, announced by the Court.
A decision will be announced before the end of June.