The Supreme Court takes up a second gerrymandering caseOn December 13, 2017 by Zander
SUPREME COURT observers scratched their heads on the evening of December 8th when the justices announced they were taking on a second major challenge to gerrymandering this term. The justices have yet to resolve Gill v Whitford, a challenge to a Wisconsin gerrymander they heard in October. Like Gill, the new case, Benisek v Lamone involves a state’s majority party charged with redrawing district boundaries in light of data from the 2010 census. And like Gill, the plaintiffs in Benisek say the legislators acted badly, flexing their muscles to unconstitutionally undermine voters from the minority party. But where Gill concerns a Republican redistricting plan, Benisek involves a challenge to a congressional district in Maryland drawn by Democrats.
At the October 3rd hearing on Gill, the first major challenge to purely partisan redistricting the court has taken up in 13 years, the justice most likely to cast the key vote, Anthony Kennedy, seemed inclined to support the side challenging Wisconsin’s legislative map. But Paul Smith, the lawyer for the plaintiffs, may have got it wrong when he told the justices that Gill marks “the last opportunity” for them to guard against “serious incursions on democracy” in America. A ruling favourable to the anti-gerrymandering side in either Gill or Benisek could transform the way America elects its legislators.
In Benisek, seven Republican voters say Democratic lawmakers in Maryland sabotaged the Republican Party’s longstanding hold on a seat in the sixth congressional district. Shuttling tens of thousands a voters into and out of the district to paint a Republican stronghold blue had two effects, the Benisek challengers charge: “alter[ing] the outcomes of the elections in the district” and “suppressing political engagement” of Republicans. And these were not happenstance: Democratic lawmakers had a “specific intent to burden Republican voters”, the challengers argue. The First Amendment bars “retaliation” whereby one party seeks to thwart the other’s political influence and “dilute” its voters’ franchise. “[M]ajority parties draw partisan gerrymanders for practical reasons, not academic ones—they do it to suppress political support for the opposition and, ultimately, to change electoral outcomes.”
A three-judge federal district court panel weighed in on this charge on August 24th, ruling 2-1 against the retaliation claim and declaring that the plaintiffs must await the Supreme Court’s guidance in its upcoming Gill decision. “All agree that gerrymandering is a noxious and destructive practice”, the majority wrote, but the Maryland voters’ complaint cannot be adjudicated before the Supreme Court articulates the “correct legal foundation”. That is wrong, Judge Paul Niemeyer protested in dissent. “The record could not be clearer”, he wrote, “that the mapmakers specifically intended to dilute the effectiveness of Republican voters in the sixth congressional district”. Gerrymandering is “cancerous” no matter which party uses it, Judge Niemeyer wrote, and there is no reason to wait for Gill to be resolved: the matter in Wisconsin is “materially different” because it addresses a statewide map under a Fourteenth Amendment equal-protection challenge. By contrast, Benisek targets one egregious gerrymander in a single district on First Amendment grounds.
There are several plausible reasons why the justices may have agreed to consider Benisek. Edward Foley, a law professor at Ohio State University, wrote in July that “Gill is hardly the most desirable vehicle” for the justices to rein in gerrymandering; Benisek, he thinks, is “more promising” as it presents the question more directly as “which specific districts were disfigured because of improper partisan manipulation”. That foretells a narrower justification for striking down gerrymandering that would be less likely to be overturned by a more conservative majority were centrist Justice Kennedy to retire in the coming years. “[C]onstitutional law is a long game”, Mr Foley notes, “and the victory that counts is the one that endures”.
But if the justices are ready to rule on Gill’s more fraught “partisan asymmetry” theory (colourfully derided by Chief Justice John Roberts as “sociological gobbledygook” in October) they may have a strategic consideration in mind in taking Benisek as well. Tapping the brakes on both Republican and Democratic partisan gerrymanders on the same day in late June could allay the chief’s worry (expressed in the Gill hearing) that the “intelligent man in the street” will think the Supreme Court “preferred” one party to the other when taking sides on partisan gerrymandering. By telling both Republicans and Democrats to cool it, the Supreme Court could portray itself as an institution willing to police overzealous partisanship on both sides of the aisle. Being perceived by the public as an honest broker unwedded to party or ideology is an increasingly elusive but fervent wish of many of the justices—particularly the chief.