On June 18, 2018, the U.S. Supreme Court delayed making a final judgment in Gill v. Whitford, a case seeking a constitutional limit on partisan gerrymandering. Instead, seven Justices decided the plaintiffs lacked standing to challenge the entire Wisconsin State Assembly map and instructed the District Court for the Western District of Wisconsin to allow the plaintiffs to present arguments that the districts they live in have been gerrymandered. The Court did not make any judgments as to the use of the efficiency gap to measure gerrymandering or the three-prong legal test adopted by the District Court. The Justices remanded the case to the trial court on standing alone.
What happens next? “The Supreme Court ordered the District Court to consider challenges to individual districts where the plaintiffs reside. In that case, there would be no challenge to the statewide map. However, the Campaign Legal Center, which litigated this case, could recruit plaintiffs from every Assembly district. Under traditional Supreme Court standing jurisprudence, this may allow the plaintiffs to challenge the constitutionality of the entire map. Whatever happens during this new District Court hearing, the Supreme Court is likely to hear the case again in time for the 2020 Elections.
In the leadup to the Supreme Court oral arguments, Common Cause worked closely with the Campaign Legal Center and the Brennan Center for Justice to organize states, cities, bipartisan current and former elected officials, academics, civil rights and good government organizations, and others to speak with one voice against the manipulation of legislative districts for political advantage.
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 the Mayer Brown law firm 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 occurred on 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.
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.”