Is partisan gerrymandering a form of unconstitutional First Amendment retaliation that is justiciable by the courts?
In this case, the Supreme Court will determine whether Maryland’s 2011 redistricting of the Sixth Congressional District constituted unlawful partisan gerrymandering in violation of the First Amendment, and whether the First Amendment retaliation framework used by the district court provided manageable standards to decide this case. Specifically, the Court will consider whether legislators redrew electoral maps in retaliation to citizens’ political affiliations and voting histories. Appellant Linda H. Lamone argues that although the redistricting process may be tainted by partisan bias, redistricting does not necessarily indicate an intent to punish citizens for their party affiliations and voting histories. Appellee O. John Benisek counters that the proper question is whether electoral maps were redrawn because of citizens’ political affiliations and voting histories, irrespective of malicious retribution. This case could have a meaningful impact on the scope of lawful electoral redistricting and whether the Court should consider legislators’ subjective intent when making this determination.
Questions as Framed for the Court by the Parties
(1) Whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
After the 2010 census, the State of Maryland engaged in the redistricting of its eight congressional districts and forty-seven legislative districts to equalize each district’s population. Since 1966, Maryland’s Sixth Congressional District had included all of five counties in Northwest Maryland: Garrett, Allegany, Washington, Frederick, and Carroll. The redistricting at issue removed predominantly Republican voters and added predominantly Democratic voters to the Sixth District.
In 2011, to execute the process of redistricting, Maryland Governor Martin O’Malley appointed the Governor’s Redistricting Advisory Committee to develop a redistricting plan. Additionally, Maryland’s Democratic congressional delegation worked to redraw the State’s congressional map, and retained NCEC Services, Inc., a political consulting firm, to assist in this endeavor. NCEC used a software program called Maptitude for Redistricting—which uses data such as election results, party affiliations, and voting history to predict election outcomes in potential new districts—to draw a map that would optimize Democratic Party success in Maryland’s congressional districts. Further, NCEC created a metric known as the Democratic Performance Index (“DPI”) to measure how a Democratic candidate would fare in a particular district. NCEC prepared several different maps guided by these metrics, compared them to the third party maps that NCEC ultimately rejected as less favorable to Democrats than their own maps, and then shared these maps with the congressional delegation. After the maps were completed by NCEC, the congressional delegation recommended to Maryland Democratic Party leadership “at least one map” prepared by NCEC. Using the same metrics and maps as NCEC, the Maryland Democratic officials finalized a map for the Governor’s Redistricting Advisory Committee and Governor O’Malley himself.
The Advisory Committee held public hearings and received numerous comments from the public regarding the redistricting. . On October 4, 2011, after the Advisory Committee’s single Republican member casted the only vote against the proposed redistricting plan, the Committee opened up the plan to be viewed by the public. On October 15, 2011, Governor O’Malley made an announcement that he was submitting for the General Assembly’s approval “a map that was substantially the same as the Advisory Committee’s proposal.” On October 20, 2011, the proposed map was signed into law, with no Republican State Senator or Delegate voting in favor of the map. In the 2012 general election, Maryland voters responded with a 64% vote in favor of a law that “establishe[d] the boundaries for the State’s eight United States Congressional Districts based on recent census figures.”
In November 2013, Maryland citizens, including Appellee O. John Benisek, brought suit against Appellant Linda H. Lamone, the State Administrator of Elections in Maryland, alleging that the 2011 redistricting plan violated their rights under the First Amendment of the Constitution. The United States District Court for the District of Maryland dismissed the case, but in 2015 the Supreme Court reversed the dismissal and remanded the case back to the district court. In 2017, after Benisek amended the complaint, a three-judge district court panel denied Lamone’s motion to dismiss, but also denied Benisek’s motion for preliminary injunction to prevent the 2011 redistricting map from being used in the 2018 elections. The district court panel also stayed further proceedings until after the Supreme Court’s decision in Gill v. Whitford. In June 2018, the Supreme Court affirmed the district court’s denial of Benisek’s motion for preliminary injunction and again remanded the case to the district court. The three-judge panel subsequently granted Benisek’s motion for summary judgment on November 7, 2018, after which the Supreme Court agreed to review the decision.
IS PARTISAN GERRYMANDERING A FORM OF RETALIATION IN VIOLATION OF THE FIRST AMENDMENT?
Lamone argues that partisan gerrymandering is not a form of First Amendment retaliation. Lamone explains that a typical First Amendment retaliation case occurs in an executive context and prohibits public employers from firing or otherwise taking adverse action against a “non-policymaking employee”—that is, a public employee whose job does not require political affiliation—because of the employee’s political views. Here, Lamone maintains that the mapmakers involved in the redistricting process did not intend to punish citizens because of their voting patterns or political affiliation. Indeed, Lamone characterizes Benisek’s First Amendment retaliation claim as a “legal fiction.” Lamone contends that, although partisan mapmakers may be biased towards their own political party, biased redistricting does not necessarily indicate an intent to punish citizens who vote for or associate with the opposing party. Lamone asserts that equating a political party’s “natural inclination to serve its members’ interests” with “malicious retribution against members of a competing party” is unfair. If the Supreme Court holds otherwise, Lamone posits, it will encourage every losing party in a political battle to claim that the winning party enacted legislation that the loser opposed in response to the loser’s constitutionally-protected speech. Regardless, Lamone claims that there is no evidence in this case that any legislator or mapmaker intended to punish voters by redrawing Maryland’s electoral maps.
Further, Lamone maintains that First Amendment retaliation principles do not apply to legislative enactments. Instead, Lamone argues that courts apply First Amendment retaliation principles to executive actions—instances where a government official retaliates against a specific individual for that individual’s exercise of constitutionally-protected speech. Unlike executive action, Lamone explains, legislative action “always involves consideration[s] of speech,” and the legislative process frequently involves references to members’ political affiliation. Therefore, Lamone claims, “the retaliation analysis . . . was never intended to work  in challenges to legislation enacted by legislators.” Lamone extends this reasoning to referendum situations where citizens directly vote on legislative matters. Lamone notes that more than 1.5 million voters approved Maryland’s redistricting, and that attributing to these voters an intent to punish a subset of voters based on the subset’s political views would be difficult to prove and would undermine the referendum as a “basic instrument of democratic government.”
Benisek counters that partisan gerrymandering violates the First Amendment because it is retaliatory in nature. Benisek explains that, as a foundational First Amendment principle, the government may not impose a burden on a citizen in response to the citizen’s political views. Benisek notes that a citizen’s political views are often reflected in the citizen’s voting history and party affiliations. Benisek contends that if the government imposes a burden on a citizen because of the citizen’s voting history or prior party affiliations, the government’s First Amendment violation is “retaliatory” in nature. Applying this framework to partisan gerrymandering, Benisek claims that that the question “is not whether lawmakers acted with vengeance or ‘malicious retribution’”—as Lamone claims—but rather, whether lawmakers burdened a subset of voters “because of [the subset’s] political association, participation in the electoral process, voting history, or expression of political views.” Benisek acknowledges that the government may sometimes impose a burden on a citizen (for example, when a police officer arrests a pedestrian), but argues that the government may never impose a burden on a citizen because of the citizen’s political views.
Here, Benisek argues that the Maryland government deliberately remapped the congressional districts in a way that benefitted the favored political party and burdened the disfavored political party because of voters’ “expressive conduct,” which is a form of First Amendment retaliation. Indeed, Benisek contends that the Maryland government “methodically dismantled” and reassembled congressional districts based on citizens’ voting history and party affiliations. Benisek maintains that the congressional redistricting inflicted a “concrete burden” on citizens who expressed their views by voting for or affiliating with the disfavored party, which made it “virtually impossible” for those citizens to achieve electoral success. Because of the redistricting, Benisek asserts that the disfavored party experienced substantial vote dilution, which discouraged citizens from participating in congressional politics, caused citizens to feel “disenfranchised,” and precipitated a nosedive in the disfavored party’s fundraising. Therefore, Benisek claims that the Maryland government’s partisan gerrymander “is a burden upon protected speech” in violation of the First Amendment.
WHAT TEST SHOULD THE COURT ADOPT FOR ADJUDICATING PARTISAN GERRYMANDERING CLAIMS?
Lamone urges the Court to replace the district court’s First Amendment retaliation test with a test that is “limited, precise, clear, manageable, politically neutral, and reliably fair.” To be sure, Lamone acknowledges that “excessive partisanship” in redistricting is impermissible because it unjustifiably bestows upon a political party the ability to entrench its power over the populace. Nonetheless, Lamone argues that redistricting necessarily involves political considerations. The challenge, Lamone explains, is in distinguishing “acceptable” from “excessive” political considerations. Lamone recognizes that the Court has yet to develop a test that addresses this vexing issue. However, Lamone maintains that the Court can draw on well-developed principles of fairness, precision, and political neutrality to guide it in formulating a new test.
Lamone contends that the “garden variety” First Amendment retaliation test adopted by the district court fails to provide the “much needed standard” for adjudicating partisan gerrymandering cases. Lamone states that to establish a First Amendment claim under the district court’s test, a plaintiff must prove three elements: intent, injury, and causation. Regarding the first element, Lamone argues that any degree of partisanship will satisfy the intent requirement, because any intent to benefit one political party can be construed as an intent to burden another political party. Therefore, plaintiffs in every partisan gerrymandering case could likely satisfy the intent element, meaning that this element fails to distinguish between “acceptable” and “excessive” political consideration. Regarding the second element, Lamone asserts that the district court’s test cannot precisely measure injury from vote dilution and devolves into a question of whether the injury was “at least somewhat more than de minimis or trivial.” Likewise, Lamone posits that associational injuries “are even more open-ended and imprecise” because the associational injury standard only requires a showing that a citizen’s ability to associate with the citizen’s political party of choice was “somehow indirectly burdened.” Finally, regarding the causation element, Lamone contends that the district court has not offered a reliable standard for determining whether injuries were caused by partisan gerrymandering or something else, “irrespective of redistricting or party affiliation.”
Benisek counters that the First Amendment partisan gerrymandering claim is justiciable. Benisek explains that “justiciability” is a concept that reflects a limitation imposed by the Constitution’s “case or controversy” requirement, which restricts the types of cases that a federal court may adjudicate. One such limitation, Benisek notes, is represented in the political-question doctrine, which requires a court to have legal, rational standards for deciding a case and prohibits a court from deciding purely political questions. Here, Benisek acknowledges that the Court may be tempted to “shirk” its duty to adjudicate this partisan gerrymandering case because its decision “may have significant political overtones.” However, Benisek contends that the Court is obligated to hear and decide a case if “familiar constitutional principles and manageable legal standards” provide a workable framework for the Court to decide the case.
Benisek asserts that the First Amendment retaliation framework provides the “familiar constitutional principles and manageable legal standards” for adjudicating the partisan gerrymandering claim. Regarding “intent,” the first element of the three-prong First Amendment retaliation test, Benisek maintains that the Court should focus on whether officials targeted a subset of citizens because of their protected speech. Benisek contends that this test for discerning “intent” is “precise and limited,” rendering it distinct from a test that focuses on the ordinary “tit-for-tat of capital-city politics,” which Lamone decries. Regarding the second element, “injury,” Benisek argues that the injuries here—vote dilution and associational burdens—are “practical and functional” and amenable to Court evaluation. Vote dilution, Benisek claims, “is undeniably a justiciable harm” because there are several well-developed tests for determining vote dilution, including the test under Section 2 of the Voting Rights Act and the Court-sanctioned electoral opportunity test. Further, Benisek posits that an array of Court cases—specifically, ballot-access cases—provide clear guidance to the Court for determining associational burdens in a partisan gerrymandering case. Finally, Benisek asserts that courts regularly determine whether “unconstitutional factors are a but-for-cause of official conduct,” thereby rendering the causation prong justiciable.
REDISTRICTING AS UNLAWFUL GERRYMANDERING
The Wisconsin State Senate and State Assembly (the “Wisconsin legislators”), in support of Lamone, argue that requiring that districts be politically competitive would require an extreme departure from the criteria typically considered in redistricting. Traditionally, the Wisconsin legislators note, legislators would consider criteria such as creating “compact and contiguous districts,” preserving “communities of interest,” and other more localized issues when planning redistricting. Following the traditional criteria, the Wisconsin legislators argue that the districts that result are frequently not “politically competitive.” Nevertheless, the Wisconsin legislators assert that a legislature “cannot be expected or required” to ensure political competitiveness in congressional districts, because that would require splitting communities of interest or creating “islands” of voters. Additionally, the Wisconsin legislators contend that allowing redistricting to result in homogenous districts gives more citizens the opportunity to elect legislators with similar views and values, while also maintaining legislature stability. On the other hand, the Wisconsin legislators argue that political symmetry in districts would result in the greatest number of voters being unhappy with the outcome of the elections. Indeed, the Wisconsin legislators assert that a determination that territorial redistricting is unconstitutional would not rid states of their naturally occurring asymmetry.
In contrast, Professors Robert Lee Stone, Jr. and John Harvard Lomax, Jr., in support of Benisek, argue that the partisan gerrymandering that occurred in the Maryland redistricting plan is harmful, not only to the voters in the districts involved, but to the entire country. Stone and Lomax note that even Lamone’s brief to the Court recognizes that gerrymandered redistricting threatens democracy. Indeed, Stone and Lomax contend that the gerrymandering involved in this case essentially amounts to fixing elections, which is, of course, antithetical to the democratic process. Stone and Lomax assert that a redistricting process that amounts to partisan gerrymandering destroys confidence in the political process by allowing party entrenchment, furthers partisanship in the legislatures themselves, and results in indifference towards swing voters and their views, with a corresponding decrease in moderate policy positions.
OBJECTIVE AND SUBJECTIVE STANDARDS IN PARTISAN GERRYMANDERING
Representative David Trone of Maryland’s Sixth Congressional District, in support of Lamone, argues that the Court, and judges in the future, should utilize objective criteria to determine when a redrawn district is safe from allegations of unconstitutionality. For 50 years, Trone notes, the Court has rejected constitutional challenges to partisan gerrymandering under the Fourteenth Amendment’s Equal Protection Clause, and asserts that the Court should uphold that precedent as it applies to the First Amendment in the present case, regardless of the decision to the contrary by the three-judge district court panel. Indeed, Trone argues that the Court has stated that upholding a First Amendment challenge to partisan gerrymandering would render unlawful all redistricting that considers political affiliation to any degree. Trone contends that the Court should hold that it is no easier to win an unlawful gerrymandering claim under the First Amendment than it is to win under the Fourteenth Amendment. Ultimately, Trone argues that the Court, and future judges, should cautiously review this claim under objective principles, because such principles establish clear safe harbors and give Congress the opportunity to create a national solution to gerrymandering.
On the other hand, Supreme Court and appellate litigator Stephen M. Shapiro, in support of Benisek, argues that this case should be decided in the same way as racial gerrymandering cases. Shapiro contends that, in the present case, as in racial gerrymandering cases, the state will always respond that redistricting is political and the map-drawers will always know to some degree how a redistricting will affect the alignment of the political body in the district—this is true whether the lines are drawn to decrease the number of Republicans in a district, as occurred in the present case, or to decrease the number of African-American voters in a district, as occurs in the race cases. Indeed, Shapiro notes that the standard used to decide the race cases—that is, that race was the predominant factor motivating the redistricting—can be easily applied to the present case by substituting political affiliation for race. Shapiro argues that, in the race cases, gerrymandering involves excessive partisan movement of voters from one district to another via redistricting maps, which also occurred in the present case. Shapiro contends that, as in the race cases, although it may be difficult to discern the true motives of the legislators when they draw redistricting maps, the Court should still look to the legislators’ subjective intent in deciding the lawfulness of redistricting in the present case because it would allow for more tailored, district-by-district relief.
- Michael Dresser, Maryland Attorney General Appeals Judges’ Order to Redraw Congressional Districts, Seeks Supreme Court Ruling, Baltimore Sun (Nov. 15, 2018).
- Adam Liptak, Supreme Court Takes Up New Cases on Partisan Gerrymandering, New York Times (Jan. 4, 2019).
- CNN Wire, Supreme Court Will Hear Partisan Gerrymandering Cases in March, KTLA 5 (Jan. 4, 2019).