August 25, 2016
On the redistricting litigation front, we’ve got some good news and some bad news. We'll start with the bad news.
Illinois Supreme Court Removes Independent Map Amendment from November Ballot
A divided Illinois Supreme Court voted 4-3 to remove from the November ballot an initiative that would have created an independent citizens redistricting commission to draw Illinois General Assembly districts. All of the court’s Democratic members voted to remove the initiative and all of the Republicans voted to keep it on the ballot. Independent Maps placed the initiative on the ballot after collecting over 563,000 signatures from citizens around the state. The state’s high court ruled that the proposal made reforms to the Illinois Constitution that extend beyond what is allowed in citizen initiatives.
Read the decision here.
Maryland Gerrymandering Challenge Set for Trial
Last week, a three-judge federal panel hearing Maryland residents’ challenge to the state’s gerrymandered congressional map denied the state’s motion to dismiss in Shapiro v. McManus. This means that the case will move to the discovery phase. Let’s take a look at how we got here and what the judges had to say.
After the 2010 census, then-Gov. Martin O’Malley and Democrats in the General Assembly saw an opportunity to carve up the state’s congressional map to squeeze one more Democratic seat out of the eight-person delegation. The right of Maryland residents to fair representation appears to have played little role in the elected leaders’ decision-making process. As a result, they turned the delegation 7-1 in their favor and eliminated a Republican incumbent, but they poked a hornet’s nest in the process.
When Steve Shapiro, a Democratic Party activist and Common Cause member, began his fight to end partisan gerrymandering in Maryland, he took the powerful leaders of his own party to court with no lawyer and an uncertain future simply because he thought what they did was wrong. After a rocky start in which a single judge refused to give the case its day in court in front of a three-judge federal district court panel, things started turning around.
With the help of attorney Michael Kimberly and his team at Mayer Brown, the plaintiffs appealed. In December of last year, the U.S. Supreme Court stated unanimously that Shapiro and his fellow plaintiffs must be allowed to have their case heard in front of a three-judge panel, which is where the case is now.
Last Week’s Big Win
The State of Maryland’s motion to dismiss would have killed the plaintiffs’ challenge before the trial even started. Denying Maryland’s claim that partisan gerrymandering is par for the course and can’t be challenged, the court responded that “even though the districting process is largely political in nature, State officials are nonetheless limited by specific provisions of the U.S. Constitution.”
The court compared partisan gerrymandering to other state actions that violate the First Amendment. “It penalizes voters for expressing certain preferences, while, at the same time, rewarding other voters for expressing the opposite preferences. In this way, the practice implicates the First Amendment’s well-established prohibition against retaliation, which prevents the State from indirectly impinging on the direct rights of speech and association by retaliating against citizens for their exercise.” Therefore, the court added, the First Amendment’s prohibition against retaliation means that “the government may neither penalize a citizen nor deprive him of a benefit because of his constitutionally protected speech and conduct.” As a result, “the well-established standards for evaluating ordinary First Amendment retaliation claims can also be used for evaluating claims arising in the redistricting context.”
The court added that “[b]ecause there is no redistricting exception to this well-established First Amendment jurisprudence, the fundamental principle that the government may not penalize citizens because of how they have exercised their First Amendment rights thus provides a well-understood structure for claims challenging the constitutionality of a State’s redistricting legislation -- a discernable and manageable standard.” The last statement references the Supreme Court’s reluctance to intervene in previous partisan gerrymandering cases due to the lack of a judicially manageable standard for identifying when a map goes too far. The three-judge panel in Shapiro appears to be willing to recognize such a standard. Now the litigation will move to the next phase.
Read the opinion here.
This newsletter has been produced by Common Cause and compiled by Dan Vicuna. Subscribe to the Gerrymander Gazette here. For more information or to pass along news, contact Dan at email@example.com.