Benisek v. Lamone Key Briefs (2018)

Common Cause in Support of Appellants

January 25, 2018

In this brief, we argue that the redraw of the Sixth Congressional District is a clear violation of the First Amendment free speech and free association rights and that, therefore, the Court must apply strict scrutiny. Under the general constitutional law concept of strict scrutiny, when a First Amendment right is violated based on viewpoint, the state must prove that their district map was justified by a compelling state interest. In this case, the viewpoint is support for the Republican Party. Common Cause argues that depriving members of one party their right to an effective vote cannot be a compelling or even legitimate state interest, especially considering the goal of redistricting is to “establish fair and effective representation for all citizens,” as Justice Kennedy stated in Vieth v. Jubelirer.

“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.”

Govs. Larry Hogan (MD), John Kasich (OH) and former California Govs. Gray Davis and Arnold Schwarzenegger

January 29, 2018

The governors state that they have witnessed the overwhelming temptation of legislators to use redistricting to entrench their own political power. Because legislators naturally, and almost inevitably, abuse redistricting for political gain, the governors argue that judicial review is necessary to protect democracy from partisan gerrymandering. “Those who draw districts need independent and neutral judicial oversight” and as such, the Court should “adopt a standard for assessing the constitutionality of partisan gerrymandering.”

The signers add:

“We each firmly believe that partisan gerrymandering is the cause and effect of an increasingly toxic political polarization in America,” because those elected in safe, gerrymandered districts, are only incentivized to serve the party leadership, and not the citizens of their districts.

“…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.”

Current and Former Members of Congress and the Constitutional Accountability Center

January 29, 2018

This brief argues that the Supreme Court can and must intervene in partisan gerrymandering cases. It emphasizes that voters should choose their elected officials and not the other way around, and that partisan gerrymandering undermines this precept. As a result, the basic function of Congress is frustrated.

The brief appeals to authority from the original framers of the Constitution, who recognized that Democratic self-governance requires that people, not officials, determine “what is orthodox” in government and politics. Amici add that the authors of the 14th Amendment recognized that it is the duty of “an independent and fearless judiciary” to ensure that government cannot take this determination from the people, as partisan gerrymandering has done.

“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.'”

International Municipal Lawyers Association, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and Santa Clara County (CA)

January 29, 2018

This brief argues that the boundaries of cities and local governments should be considered in the redistricting process because voters will be more informed and representatives will better know the needs of the district if communities are not split into many districts. Amici also state that clear standards for a partisan gerrymandering claim, outlined by the Supreme Court, would dramatically help mapmakers following the 2020 census. There is already an established claim for racial gerrymandering and there is no reason there should not be one for political gerrymandering as well. The local government leaders and experts add that “mapmakers who engage in partisan gerrymandering possess the ability to swing the ideology of a state’s congressional delegation dramatically, all without changing the mind of a single voter.” As a result, the congressional delegation clearly does not accurately represent the views of the people back home.

“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.”