The Court will consider three issues: (1) did the district court err when it found that, for First Amendment retaliatory gerrymandering claims, establishing an actual, concrete injury requires proof that the gerrymandered map has dictated and will continue to dictate the results of every election following the gerrymander; (2) did the district court err when it held that burden-shifting is not applicable to First Amendment retaliation challenges to partisan gerrymandering in Mt. Healthy City Board of Education v. Doyle; and (3) did the district court err in finding that the record does not prove that the 2011 gerrymander dictated the Democratic victories in 2012, 2014, and 2016 in Maryland’s Sixth Congressional District?
In 2012 the State of Maryland, under Democratic Governor Martin O’Malley, and with the help of NCEC Services, a company specializing in electoral analytics and political strategy, redrew its Sixth Congressional District to comply with one-person-one-vote rules. This resulted in the exclusion of approximately 66,000 registered Republicans and the inclusion of 24,000 Democrats in the District. O. John Benisek alleges that the new Sixth District was the result of backdoor meetings intended to consolidate Democratic control of the District. Linda Lamone, the State Administrator of Elections, on the other hand, contends that the current district lines more closely resemble the historic party composition of the voters. Benisek argues that this redistricting treats Republicans unfavorably in violation of the First Amendment. Lamone counters that this is not a valid claim in court because no rigorous judicial standard can be created to assess the impact of gerrymandering in redistricting efforts. Lamone contends that the Plaintiffs cannot put forth a clear, neutral, and judicially manageable standard for these cases, and thus the political process should resolve the issue. But Benisek responds that this is a First Amendment case where the correct inquiry is whether voters suffered retaliation for their political beliefs. The outcome of this case will have implications for the proper role of the legislature and the judiciary in the redistricting process and for levels of citizen civic engagement and political influence.
Questions as Framed for the Court by the Parties
(1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.
Before 1991, Maryland’s Sixth Congressional District was composed of more registered Democrats than registered Republicans. Brief of Appellees, Lamone et al. at 3. However, in 1991, the district lines were redrawn, leaving registered Republicans outnumbering registered Democrats. Id. Accordingly, Republican Roscoe Bartlett represented Maryland’s Sixth Congressional District from the 1992 to 2012. Brief of Appellants, Benisek et al. at 1. In 2010, Bartlett won with a 28% margin; however, in 2012, he lost by a 21% margin. Id. at 2. The District is currently represented by John Delaney, a moderate Democrat who defeated State Senator Robert Garagiola, a more liberal Democrat, to win the 2012 primary election. Brief of Appellees at 4.
From 1872 until 1991, five counties—Garrett, Allegany, Washington, Frederick, and Montgomery —made up the Sixth District. Id. at 5. From 1991 through 2011, however, Montgomery County was not included in the District. Id. Then, in 2011, Maryland redrew the district lines again to comply with a one-person-one-vote rule. Brief of Appellants at 1–2. Portions of Montgomery County were drawn into the Sixth District. Brief of Appellees at 6. Consequently, 360,000 Maryland citizens were drawn out of the Sixth district and 68,656 voters were drawn into the Sixth District from the Fourth. Brief of Appellants at 2; Brief of Appellees at 6. In total, 66,417 registered Republicans were drawn out of the Sixth District, and 24,460 registered Democrats were drawn into the Sixth District. Brief of Appellees at 8. This produced a 90,000-voter swing in favor of the registered Democrats. Brief Appellant at 2. For context, Maryland’s Sixth Congressional District typically has 230,000 voters in mid-term elections. Id.
The Governor’s Redistricting Advisory Committee (“GRAC”) led the redistricting efforts. Id. at 8. Maryland Governor, Martin O’Malley, appointed five members to GRAC. Id. GRAC’s four Democratic members include: Jeanne Hitchcock, chairperson; Michael Busch, Speaker of the House; Mike Miller, Senate President; and Richard Stewart, a private business owner. Id. James King, GRAC’s fifth member and the former Maryland State Delegate, is a Republican. Id. During the summer of 2011, GRAC held twelve public hearings around the state of Maryland. Id. at 9. The approximately 1,000 members of the public who attended the meetings made around 350 comments. Id. Though the public hearings were run by GRAC, the actual drafting of the map was done by NCEC Services, as retained by Democratic Congressman Steny Hoyer. Id. NCEC, an electoral analysis, campaign strategy, political targeting, and map drawing service company, used “Maptitude,” a software program, to draw the map lines. Id. at 9–10. Maptitude allows users to add political data and election results and to use such results to accurately predict election outcomes under proposed districting schemes. Id. at 10. Eric Hawkins, NCEC’s CEO, used Maryland citizens’ voting histories, party affiliations, registration, turnout levels, election results, and the company’s Democratic Performance Index (“DPI”) during the redistricting process. Id. DPI is NCEC’s proprietary metric that uses past voting history to predict electoral outcomes. Id. After making more than ten possible congressional maps and comparing them to proposals submitted by third-party drafters, Hawkins proposed two redistricting plans: Congressional Option 1 and Congressional Option 2. Id. at 11–12. Maryland officials chose Congressional Option 2, which more strongly predicted Democrats would win Maryland’s Sixth Congressional District in an election. Id. at 12. The plan was formally submitted to Governor O’Malley on October 4, 2011. Brief of Appellees at 14. O’Malley published the plan for public comment the same day. Id. The plan was introduced to the Maryland Senate by Senate President Miller on October 17, 2011. Brief of Appellants at 12; Brief of Appellees at 14. Members of the Maryland House of Delegates offered four amendments but all were rejected. Brief of Appellees at 14. Although no Republican lawmakers supported the plan, the bill passed on October 20, 2011. Brief of Appellants at 12; Brief of Appellees at 14. The bill was petitioned to referendum and passed with 64.1% of the vote. Brief of Appellees at 14.
O. John Benisek and the other Appellants, supporters of Bartlett and other Maryland Republicans, appealed this case directly from the United States District Court for the District of Maryland. Brief of Appellants at 4. Benisek filed the original action in November 2013 against Maryland and its Administrator of Elections, Linda Lamone. Brief of Appellees at 15. In 2015, the Supreme Court reversed the lower court’s dismissal and remanded the case. Id. Plaintiffs filed a second amended complaint in 2016. Id. at 15–16. A three-judge panel denied Linda Lamone’s motion to dismiss, and later entered a “stay pending further guidance” from the Supreme Court’s disposition of Gill v. Whitford. Id. at 17. Benisek claims the Supreme Court has jurisdiction over this matter under 28 U.S.C. § 1253 and motioned the Court to expedite consideration of the jurisdictional statement. Brief of Appellants at 4; Motion to Expedite Consideration of the Jurisdictional Statement Filed by Appellants at 1. The Court denied the motion and postponed further consideration of jurisdiction until the hearing of the case on the merits. Motion to Expedite Consideration Filed by Appellants DENIED at 1. Benisek claims the redistricting was done via backdoor meetings in an attempt to dilute Republican votes in Maryland’s Sixth Congressional District. Brief of Appellants at 8. However, Lamone claims the 2011 redistricting did not dilute Republican voters, but rather created a political composition similar to the pre-1991 district lines, thus making both parties more competitive. Brief of Appellees at 2–3.
IS THE ISSUE JUSTICIABLE?
Benisek argues that the test for First Amendment claims of retaliation in the context of political gerrymandering is whether the State has imposed a real and practical burden on a group of voters in retaliation for that group’s historical support for a particular political party. Brief of Appellants, Benisek et al. at 27. Benisek claims that First Amendment doctrine poses objective questions that are answerable with traditional evidence and ordinary legal standards. Id. at 32. Further, Benisek maintains that a claim of First Amendment retaliation, unlike an Equal Protection claim, does not require a unifying definition of “fairness” nor a determination of whether the redrawn lines go too far. Id. at 33–34. Benisek contends that lower courts have struggled to determine what fairness means in the context of redistricting, quantify deviations from the ideal fairness in redistricting, and determine at what point deviation from the ideal fairness is impermissible. Id. at 34. Benisek asserts that instead of relying on a substantive definition of fairness or a statistical measure of severity, the questions are why and how the map was drawn, and whether there was a practical burden on the impacted voters as assessed by a pragmatic and functional review of the State’s conduct. Id. at 35. Therefore, Benisek argues that the applicable test is: (1) whether the State considered citizens’ protected First Amendment conduct, in this case voting histories, in deciding how to redraw the district lines, and if so, was it done with the intent to dilute the votes of citizens who had alternative political beliefs; (2) if so, did the redistricted map actually dilute citizens’ votes and were such voters burdened in a concrete, practical way; and (3) can the map’s effects be explained by a constitutional acceptable explanation that is independent from any intent to discriminate? Id. at 35. Benisek contends that the contested part of the test, the second question, is in fact justiciable because it is a practical and functional inquiry. Id. at 36.
Lamone counters that because the impact of partisan gerrymandering cannot be identified according to principled judicial standards, Benisek’s First Amendment retaliation claim is non-justiciable under the Political Question Doctrine. Brief of Appellees, Lamone et al. at 27. Lamone argues that the standard for political gerrymandering is when the redistricting process has “gone too far.” Id. at 26. Here, Lamone contends that Benisek offers no “clear, manageable, and politically neutral” standard for the burdens imposed, and, as Justice Kennedy warns in his concurrence in Vieth v. Jubelirer, the judicial outcomes for challenges to partisan gerrymandering would be “disparate and inconsistent.” Id. at 27. To argue vote dilution as an injury, Lamone asserts, there must be a clear standard by which the court can measure such dilution. Id. at 28. Lamone argues that Benisek has not proposed such a standard of measure. Id. Further, according to Lamone, Benisek’s proposed standard of any vote dilution as too much vote dilution would prohibit all schemes of political and partisan classifications except those only with de minimis effects. Id. at 27, 29. This standard, Lamone proposes, cannot be correct because redistricting plans have no inherent impact on what candidates are on a ballot, what citizens can cast a vote, and when the votes may be cast. Id. at 29. Therefore, Lamone argues, redistricting plans do not inherently impose a tangible restriction that should be prohibited in all circumstances. Id. at 30. Finally, Lamone claims that Benisek wrongfully assumes that the preexisting redistricting scheme was constitutionally preferable, and thus any change from it would be unconstitutional. Id. at 32. This assumption, Lamone asserts, erroneously suggests that people newly in a political minority could challenge a redistricting scheme while those who were previously in the political minority, whether the preexisting districts were drawn for partisan reasons or not, could not challenge a partisan gerrymander. Id. at 32–33. This outcome, Lamone declares, would mean preserving and furthering the political dominance of one party over another despite current voters’ preferences. Id. at 33.
WHAT ARE ACTIONABLE BURDENS IN POLITICAL GERRYMANDERING?
Benisek argues that although changing electoral outcomes is not necessary to show identifiable, actionable, more-than-de-minimis burdens imposed on citizens as a result of political gerrymandering, in this case, election outcomes were affected. Brief of Appellants at 40. Benisek further argues that, in this case, the actionable burden requirement is met not only because election outcomes were affected, but also because the gerrymander put the targeted Republican voters at a concrete disadvantage, thus making a Republican victory practically impossible. Id. at 41. Benisek contends that the same Democratic Performance Index (“DPI”) and Partisan Voting Index (“PVI”) technology used to create the new districts in Maryland can be used to show that a real and practical disadvantage was imposed on Republican voters in Maryland’s Sixth Congressional District. Id. This political disadvantage, Benisek asserts, is enough to demonstrate a justiciable burden. Id. at 42. Finally, Benisek contends that discouragement from participation in the political process and pressure to join the dominant party as a result of the redrawn lines are actionable burdens, and such burdens are proved using ordinary evidence and analysis. Id. at 43.
Lamone contends that the lower court correctly applied the standard for injury in the present case. Brief of Appellees at 47. This standard, according to Lamone, requires Benisek to show that the redistricting was for purposeful dilution in Maryland’s Sixth Congressional District and that the redistricting was the but-for cause of Republican Representative Roscoe Bartlett’s loss in 2012 and for Republican losses in 2014 and 2016. Id. The losses must be directly attributable to the gerrymandering, Lamone asserts, because otherwise they would be the result of democracy, not constitutional injury. Id. at 48. Lamone challenges Benisek’s assertion that anything more than a de minimis burden on voters constitutes an injury by emphasizing that Benisek offers no standard of measure for such burden. Id. Further, Lamone argues, use of predictive evidence such as the DPI and the PVI are not determinative of but-for causation, and thus cannot be used to satisfy Benisek’s burden. Id.
DOES MT. HEALTHY’S BURDEN-SHIFTING FRAMEWORK APPLY?
Benisek argues that First Amendment retaliation claims are supported by but-for causation without which the action at issue would not have been taken. Brief of Appellants at 57. Further, Benisek asserts that Mt. Healthy City School District Board of Education v. Doyle (“Mt. Healthy”) held that when plaintiffs make a prima facie showing of retaliatory harm, the burden shifts to the defendants to show that they would still take the same actions even without the motivation of retaliation. Id. Benisek contends that they have met their two burdens: first, they showed that the district drawers intended to dilute Republican votes because of such voters’ political affiliation and second, they showed that there was a concrete and practical injury because the map drawers succeeded in diluting Republican votes. Id. Therefore, according to Benisek, the burden, rather than remaining with Benisek to show that the maps would not have been drawn that way without retaliation, shifts to the State to show that the map would have been drawn that way even without retaliatory motivations. Id. at 57–58.
Lamone responds that the lower court correctly refused to apply Mt. Healthy’s burden-shifting framework in this case. Brief of Appellants at 49. The burden-shifting framework, Lamone argues, does not apply because traditional First Amendment retaliation claims do not fit with claims of partisan gerrymandering. Id. Lamone highlights that in traditional First Amendment claims, the action itself is the injury, citing, for example, a refusal to renew a teacher’s contract. Id. Here, however, according to Lamone, the alleged official action is facially neutral—redistricting that was petitioned to referendum and approved by voters. Id. Therefore, Lamone contends that Benisek cannot meet his burden of proving that the facially neutral official act diluted the votes of targeted citizens causing tangible and concrete adverse consequences, and thus the burden-shifting framework does not apply. Id. at 49–50. Lamone argues that the Mt. Healthy burden-shifting framework is only triggered upon a prima facie showing of retaliatory harm. Id. at 50. In such cases, Lamone asserts, the court assumes an injury and thus focuses on motive and intent. Id. Here, however, Lamone argues, unlike in traditional First Amendment contexts, no such assumption can be made because the action is only injurious if the action alters the outcome of an election, which Lamone contends it did not. Id. Finally, even if the burden-shifting framework applied, Lamone alleges that the Court should depart from it, as it did in Moore v. Hartman¸ because the alleged causation between the action and injury more attenuated and complex than that found in typical retaliation claims, the identity of the injured parties and injuring parties is unclear, and there is a rebuttable presumption of validity in gerrymandering barring invidious discrimination based on racial criteria or “other immutable human attributes.” Id. at 51–53.
ELECTORAL ACCOUNTABILITY AND INCUMBENT ENTHRENCHMENT
The American Civil Liberties Union (“ACLU”), in support of Benisek, argues that partisan gerrymandering entrenches incumbents at the statewide level, thus reducing citizens’ ability to cast meaningful votes and lessening accountability for politicians. Brief of Amici Curiae the American Civil Liberties Union et al. (“ACLU”), in Support of Appellants, at 11. The ACLU also contends that the lower court’s approach incorrectly considers previous lines as benchmarks and leads to a problematic reliance on antiquated demographic information. Brief of ACLU at 17. Further, the ACLU asserts that under this approach, the courts become guardians of past political outcomes rather than promotors the free will of citizens, which may change over time. Id. at 18. Governors Hogan, Schwarzenegger, and others (“Governors”) argue that if Maryland’s redistricting decision is upheld, governors and legislatures will be tempted to pass redistricting maps favorable to their own reelections, clearing the path for their own political agendas. Brief of Amici Curiae Governors Lawrence Joseph Hogan Jr. et al. (“Governors”), in Support of Appellants at 7. Excessive gerrymandering, the Governors argue, creates “safe districts” where elected officials need only protect against extreme political positions, which increases polarization and paralyzes legislatures. Brief of Governors at 11.
Freedom Partners Chamber of Commerce (“Freedom Partners”), in support of Lamone, counters that judicial involvement in redistricting plans would create the same harms that the opposing side claims—damaging the political process by diminishing electoral accountability and increasing political polarization as majorities shift in and out of power. Brief of Amicus Curiae Freedom Partners Chamber of Commerce (“Freedom Partners), in Support of Appellees, at 30. Freedom Partners further argues that redistricting weakens legislative majorities and thus risks losing elections, which can be exacerbated by backlash over perceptions of gamesmanship. Id. There are many examples, Freedom Partners asserts, where attempts at entrenchment through gerrymandering have resulted in lost elections. Id. Moreover, Freedom Partners contends that citizens are best positioned to police gerrymandering by voting in candidates who will pass state laws regulating the redistricting process. Id. at 31. Freedom Partners also claims that these lawsuits arise every ten years when redistricting occurs, leading to concerns about judicial economy. Id.
SPEECH AND CIVIC ENGAGEMENT
Professor Michael Kang, in support of Benisek, argues that an electoral map based on partisanship burdens citizens’ First Amendment rights and can therefore never serve a valid government interest. Brief of Amicus Curiae Professor Michael Kang, in Support of Appellant, at 13. The International Municipal Lawyers Association (“Municipal Lawyers Association”) argues that partisan gerrymandering breaks up “coherent communities of interest” and brings together dissimilar communities, thus undermining the civic engagement and political autonomy that local governments provide. Brief of Amici Curiae International Municipal Lawyers Association et al., in Support of Appellants, at 12. This outcome, they contend, endangers the ability of the political process to represent diverse viewpoints and promote active involvement in the democratic process. Id. A group of bipartisan members of Congress (“Members of Congress”) contends that political gerrymandering leads to government suppression of disapproving minority speech, which the First Amendment protects. Brief of Bipartisan Current and Former Members of Congress Brief of Amici Curiae Bipartisan Current and Former Members of Congress, in Support of Appellants, at 13. The Brennan Center for Justice further argues that the Maryland redistricting plan violates the First Amendment by severely impeding the ability of minority Republicans to band together to influence elections at the state level. Brief of Amicus Curiae The Brennan Center For Justice at N.Y.U. School of Law, in Support of Appellants, at 18–19.
The States of Michigan, Arkansas, and others (“States”) contend that redistricting is an inherently political act best left to the electoral process and not the judiciary, as evidenced by the constitutional structure that gives state legislatures and Congress the power to enact the rules of redistricting. Brief of Amici Curiae State of Michigan et al., in Support of Appellees, at 4–5. The States further argue that creating a judicial rule for gerrymandering based on the First Amendment would bar consideration of politics in redistricting, when in reality the two are inseparable, as has been uniformly acknowledged by the Court. Brief of State of Michigan at 10. Moreover, the States assert that attempting to apply a First Amendment standard would risk distorting First Amendment principles, including indicating that some level of viewpoint discrimination is acceptable. Id. at 13. Furthermore, the States claim that forcing state legislatures to redraw electoral maps would be a significant incursion into the political process, a move that risks tarnishing the reputation of the judicial branch. Id. at 14.
- Robert Barnes, Supreme Court Will Take Up a Second Gerrymandering Case This Term, Washington Post, (Dec. 8, 2017).
- Amy Howe, Court Adds Seven New Cases to Merits Docket, SCOTUSBlog, (Dec. 8, 2017).
- Adam Liptak, Justices to Hear Second Partisan Gerrymandering Case, New York Times, (Dec. 8, 2017).
- Debra Cassens Weiss, Supreme Court Accepts Second Case on Partisan Gerrymandering, ABA Journal, (Dec. 11, 2017).