Constitution Daily

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Broad review of partisan gerrymandering urged

December 11, 2018 by Lyle Denniston


A group of Maryland Republican voters, claiming that they were penalized for supporting their party’s candidates in the polling booth, asked the Supreme Court on Tuesday to make a sweeping review of the constitutionality of partisan gerrymandering, and to do so before next summer.  The document called for back-to-back hearings, on the same day, in their case and in a similar pending case from North Carolina.

The new filing argued bluntly: “If this Court does not take the opportunity, once and for all, to condemn political gerrymandering as the First Amendment violation that it is, it will be giving a green light to lawmakers across the country to engage in gerrymandering in 2020 like never before.”  (Redistricting of political boundaries is usually necessary after every 10-year census, due to population shifts.)

The seven GOP voters, who live in a western Maryland area that for decades routinely elected a Republican to a seat in the U.S. House of Representatives, have seen their candidates lose in every election since the state’s Democratic leaders drew up a new district in 2011, giving a decided advantage to Democratic candidates.   The 2011 plan was drafted explicitly to help assure that Democrats won seven of the state’s eight seats in the House by flipping the Sixth District from GOP to Democratic dominance.

The result of that flip, the GOP voters argued in their new filing, is that “those living in rural western Maryland…are now represented by a congressman elected by wealthy suburban Democrats over 150 miles away, in the suburbs of Washington, D.C.”

The state of Maryland has filed an appeal to the Court, seeking to overturn a decision last month by a three-judge federal trial court in favor of the GOP voters who challenged the 2011 map for the district.  The lower court nullified that map as a partisan gerrymander that intentionally violated the First Amendment rights of GOP voters – first by retaliating against them for their past voting patterns for Republican candidates, and second by making it harder for them to join together in raising money, organizing campaigns, or recruiting followers.

The North Carolina case, which has been pending at the Court since early October, was scheduled to be considered by the Justices at a private conference last Friday, but no action was taken then.  That left the impression that the Court may be waiting for the Maryland case to develop so that, potentially, there would be two cases to review on the basic question of partisan gerrymandering under the Constitution.

In answering the state’s appeal Tuesday, the Maryland GOP voters argued that, if the Justices decide to grant review of the underlying constitutional issue, they should hear the two pending cases on the same day – presumably in April.

That approach, the document said, “would ensure a broader spectrum of legal arguments and a more substantial combined factual record upon which to consider the issues presented in the appeals.”

The Republicans’ response was filed at the Court more than three weeks before it would have been due under the usual timetable.  But the two sides in the case had agreed to make their filings on a more rapid schedule, with the aim of having the Justices take up the case at their next scheduled private conference, on January 4; the state will file its final reply one week from now.   The Court is now in recess for the holidays.

The Maryland case is focused on the partisanship issue as it arose for only one House district, while the North Carolina case covers a similar dispute involving all 13 House districts in North Carolina.  Under a 2011 map in North Carolina, the GOP has regularly won 10 of the 13 House seats even though statewide voting for U.S. Representative is about even for the two parties’ candidates as a group.  A three-judge federal trial court has twice ruled that map unconstitutional.

The North Carolina case is broader in scope because it is statewide, but the appeal is also more sweeping in the claims it makes: the four Republican members of the state legislature who appealed to defend the 2011 map are urging the Supreme Court to use that case to bring to a complete end all lawsuits that seek to challenge partisan gerrymanders.  Their theory for such a broad argument is that the Court simply cannot devise a constitutional formula for deciding when partisanship in redistricting has gone too far.

The Court has been pondering the partisan gerrymandering question since 1986, but so far has not found a workable formula for judging the validity of such political maneuvering.   Throughout most of that time, one member of the Court – Justice Anthony M. Kennedy – kept the issue alive by refusing to close the door on such challenges, suggesting that it might be possible to devise a formula based upon the negative impact of such gerrymandering on the First Amendment rights of voters who claim to be the victims of such partisan redistricting.   (Justice Kennedy retired last summer, but some of the other current Justices have made it clear they are keenly interested in finding a way to judge such gerrymanders.)

The new filing by the Maryland GOP voters contains repeated quotations from Kennedy’s judicial writing on the issue.  Anticipating arguments that taking up the issue would draw the Court into completely unfamiliar constitutional realms, the Marylanders contended that approaching it from a First Amendment perspective would only involve the application of well-understood principles against government action that penalizes people because of their political points of view or party loyalty.

It will take the votes of four of the nine Justices to grant a full-scale review of either or both of the two cases.  The Maryland voters made a pitch for the Justices to cast a simple vote upholding the trial court ruling in their favor, without full-scale review, but they did not dwell on that idea, devoting most of their argument to defending their First Amendment approach and emphasizing the value of reviewing the two cases together.

Lyle Denniston has been writing about the Supreme Court since 1958.  His work has appeared here since mid-2011. 


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