Shapiro v. McManus

The future of constitutional challenges to partisan gerrymanders

Written by Jeremy Farris, associate at the law firm of Bondurant, Mixon & Elmore on November 5, 2015


Yesterday, the Supreme Court heard oral argument in Shapiro v. McManus. Hear Common Cause’s conference call previewing the case.  When it issues its opinion later this term, the high Court will clarify the procedure for how the federal courts decide constitutional challenges to partisan gerrymanders.  It may also indicate whether some partisan gerrymanders violate the First Amendment. 

 Plaintiff and Common Cause Maryland member Steve Shapiro in front of the Supreme Court

Plaintiff and Common Cause Maryland member Steve Shapiro in front of the Supreme Court

In Shapiro, a bipartisan group of Maryland voters alleged that Maryland’s 2011 congressional redistricting scheme violated the Constitution, including their rights guaranteed by the First Amendment.  The voter’s First Amendment claim picked up on a suggestion that Justice Kennedy made in his concurring (and controlling) opinion in Vieth v. Jubelirer, a 2004 challenge to a Pennsylvania redistricting plan.  There, Justice Kennedy ventured that “[t]he First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering.”

 The Maryland voters requested a three-judge federal district court to hear their case.  Three-judge districts courts have been a feature of federal procedure for over a century.  Congress provided for their convocation shortly after the Supreme Court decided Ex parte Young in 1908, which enabled the federal courts to stop state officers from enforcing unconstitutional state laws.  Originally, Congress intended that three-judge courts could hear constitutional challenges to all kinds of state laws to protect the States from hasty, improvident injunctions issued by a single judge.  These days, however, three-judge courts are mainly convened to adjudicate constitutional challenges to state redistricting schemes.  And they now arguably benefit plaintiffs more than States: claims heard by three-judge courts have a faster and easier road to review by the Supreme Court.

But the Maryland voters did not get the many-minded forum they had requested.  A single-judge district court threw out the voter’s complaint, dismissing their First Amendment challenge and refusing to take the necessary steps to convene a three-judge court.  In the view of the district court, the First Amendment does not create a right against partisan gerrymanders.  The U.S. Court of Appeals for the Fourth Circuit summarily affirmed, and the voters successfully petitioned for the Supreme Court’s review.

At oral argument, the voters emphasized that the district court had applied the incorrect standard when it refused to send their case forward to three judges.  Their main argument was that under longstanding Supreme Court case law, the single-judge court could only refuse to call for three judges if and only if it decided their claim was “insubstantial” or “totally foreclosed” by the precedents of the Supreme Court, not simply because the single-judge thought their claim was unmeritorious.  In short, so long as the voter’s challenge was not ridiculous – or, as Justice Scalia said, “outlandish” – it should have been considered by three judges.  Maryland, by contrast, contended that a single-judge court can determine that three judges are not required if it thinks a plaintiff has simply “failed to state a claim” and that “a clear division between insubstantiality and the failure to state a claim is not borne out” by precedent.

During argument, the Justices deliberated whether this “insubstantiality” standard provided sufficient guidance to lower courts on whether three judges are not required.  Chief Justice Roberts suggested that the line between a single judge’s determination that a claim is insubstantial (and thus would not require three judges to decide it) and the determination that a claim is unmeritorious although not insubstantial (and thus would require three judges) was “fuzzy.”  By contrast, Justice Kagan did not share this concern because a conclusion of insubstantiality had been reserved for claims that were “completely ridiculous.”

The Justices also deliberated over the road to review from decisions of three-judge courts to appellate review in the Supreme Court.  If three-judge courts consider emergent constitutional challenges to partisan gerrymanders, then the Supreme Court must take the appeal of such claims.  The Justices expressed concerned that that procedure limits their ability to decide when to consider such challenges or when, in the Chief Justice’s words, “to let the issue percolate.”  If, on the other hand, a single-judge could toss a constitutional challenge to a partisan gerrymander, the appeal would go to the federal courts of appeal—with the result that the various constitutional challenges to partisan gerrymanders would be largely developed there, with a consequently longer road to final decision by the high Court.

So, the outcome of Shapiro will determine the path of constitutional challenges to partisan gerrymanders.  If the Supreme Court decides in favor of the voters on the procedural issue, then the result may be that novel and emergent constitutional challenges to partisan gerrymanders will be determined more quickly by the Supreme Court.  But if the Court decides in favor of Maryland, those same challenges will have a longer road to travel before the Supreme Court decides their validity.

In either event, as Justice Breyer said at oral argument, “at some point somebody is going to have to say whether” a First Amendment challenge to partisan gerrymanders is insubstantial.  The Court should decide that issue now.  Whether the Supreme Court’s own precedents “totally foreclose” a First Amendment challenge to a partisan gerrymander may be determined in this case.  And, as the voters pointed out in argument, it is an easy question: In Vieth – the last time the Court spoke to this issue – Justice Kennedy said that the First Amendment may provide the correct basis to challenge partisan gerrymanders.  Therefore, it obvious that the claim is not insubstantial, and three judges should be convened to consider it.

In a jointly-filed amicus curiae brief filed with Supreme Court, Common Cause and the Campaign Legal Center argued not only argued for that result, but made one argument further:  Even if a single-judge court could toss a constitutional challenge to a partisan gerrymander for “the failure to state a claim,” in this case, the voter’s claim should still go on to a three-judge court.  This is because the First Amendment creates a right against partisan gerrymanders.

The basic idea is that the First Amendment limits the power of the States under the Elections Clause to design the elections for the members of the House of Representatives.  This is because the First Amendment protects the right to participate in electing our political leaders, including the vote.  The First Amendment also prevents the States from enacting elections regulations that seek to influence the people’s choice of their congressional representatives, and it limits the power of the States to subject individuals or groups to disfavored treatment by reason of their political or religious views.  Putting together those basic First Amendment doctrines, the conclusion is clear: States may not influence the election of our national representatives by making it more difficult for a voter to elect a representative of her choice because of her political views.  Yet, this is exactly what partisan gerrymandering intends and often achieves.

While the Justices did not overtly speak to the merits of the First Amendment claim yesterday, one day they will.  As Justice Breyer noted at oral argument, constitutional challenges to partisan gerrymanders are, with only slight exaggeration, “the single-most important issue that could possibly be raised.”  Congress intended that three-judge courts should initially decide such cases, with an expedited road to review in the Supreme Court.  And, at the end of that road, should be the determination that First Amendment prevents the States from supplanting the people’s choice of their representatives in Congress.


Farris is the primary author of Common Cause’s amicus brief in Shapiro v. McManus.

Download the amicus brief here.

Office: Common Cause Maryland, Common Cause National

Issues: Voting and Elections, Voting and Elections

Tags: Tame the Gerrymander, Redistricting

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