On March 28, 2018, the Supreme Court will hear oral arguments in Benisek v. Lamone, a landmark case that could result in a nationwide prohibition against partisan gerrymandering.
After the 2010 census, Maryland Gov. Martin O’Malley and the Democratic legislature drew a congressional map designed to increase Democrats’ share of the state’s eight congressional districts from six to seven. They succeeded by moving Democratic voters in the Washington, DC suburbs into the Sixth Congressional District, which was previously anchored in conservative Western Maryland.
The Original Case
Common Cause Maryland member Stephen Shapiro challenged this map in court without the help of an attorney in 2013. After a single judge dismissed the case, Michael Kimberly at Mayer Brown took on the case pro bono and appealed the decision. In a unanimous 2015 opinion authored by Justice Scalia, the Court stated in Shapiro v. McManus that the case should have been heard by a three-judge panel. The Court added that it should not have been dismissed as “wholly insubstantial” or “obviously frivolous” because, whatever those terms mean “they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases.” Justice Scalia was referring to the plaintiffs’ First Amendment claim and Justice Kennedy’s concurring opinion in Vieth v. Jubelirer (2004), in which Kennedy states:
“The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.”
Back to the Supreme Court
When the case went before a three-judge panel, the plaintiffs filed a preliminary injunction to prevent the use of the current map in the 2018 elections. Plaintiffs argue that the manipulation of the Sixth Congressional District is a violation of voters’ First Amendment free speech and association rights. After the panel denied the preliminary injunction, the plaintiffs appealed to the Supreme Court. In an unexpected move, the Supreme Court agreed to hear the case at this early stage in the litigation before there had even been a full trial. Oral arguments are scheduled for March 28, 2018. Common Cause helped to organize amicus briefs in the case. Here are some of the briefs filed on behalf of the plaintiffs challenging Maryland’s congressional gerrymander.
“The Democratic majority’s intentional conversion of Maryland’s Sixth Congressional District from a predominantly Republican district to a predominantly Democratic district is a textbook example of a partisan gerrymander.”
“The dismemberment of Maryland’s Sixth Congressional District is a textbook partisan gerrymander by this Court’s own definition.”
“Partisan gerrymanders violate the duty of government to govern impartially.”
“Partisan gerrymanders are doubly offensive to the First Amendment. They not only dilute the effectiveness of the votes of the opposition, they also enhance the relative effectiveness of the votes of supporters of the party in power.”
“…just as foxes should not guard henhouses, legislators should not draw electoral legislative districts. Your independent and neutral review is urgently needed.”
“(Partisan gerrymanders) deepen partisan rancor by rendering those elected in gerrymandered districts beholden to party leaders who drew the district boundaries—not the citizens who live within them.”
"...it is naïve to conclude that, absent judicial intervention, the line drawers will rise above the political pressures and rebuff partisan gerrymanders based on democratic values."
“To be sure, these legislative or ballot-driven efforts try to address the problem. But they cannot be held out as the cure. Legislative self-interest can nullify efforts like Governor Hogan’s and not every affected State has the ability or resources to mount a ballot initiative like California’s.”
“Simply put, Amici can state with conviction that partisan gerrymandering is a serious problem that distorts our elections and political processes in ways that transgress settled First Amendment limits and impair a properly functioning democratic republic. Worse still, the tentacles of these gerrymanders reach even deeper, disrupting the very processes by which voters might reverse these negative effects through their votes and their pressure on elected officials—pressure that, given the powerful allure of gerrymanders, is likely to fall on deaf ears.”
"Partisan gerrymandering—whether the aim is to subordinate Democratic or Republican voters—is 'cancerous, undermining the fundamental tenets of our form of democracy.'"
"The Framers recognized that 'those who have power in their hands will not give it up while they can retain it. On the [c]ontrary we know they will always when they can rather increase it.'"
"Thus, it is of no moment that the Elections Clause gives Congress the power to prescribe a remedy for partisan gerrymandering in congressional redistricting. It is this Court’s constitutional role—not Congress’s—to ensure that states respect the 'fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.'"
“Whether the Court decides to ground partisan gerrymandering claims in the First Amendment, the Equal Protection Clause, or both, everyone readily understands that the Constitution prohibits the government from infringing the right to vote, from singling out citizens for disfavor based on their views, and from enacting laws that target particular groups of citizens for no reason other than disapproving their political beliefs.”
“Whether one is a Maryland Republican or a North Carolina Democrat, gerrymandering strips disfavored voters of the opportunity to have their unique voice heard in the halls of Congress.”