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Constitution Check: Finally, a test of partisan gerrymandering?

December 10, 2015 by Lyle Denniston


Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, says a Tuesday Supreme Court decision court may eventually allow the Court to consider the constitutionality of partisan gerrymandering.


“We still have a long way to go, but thanks to Steve Shapiro and the lawyers who took up his cause, there will be a full review by a three-judge court of the constitutionality of the congressional district boundaries drawn by then-Gov. O’Malley and the [Maryland] General Assembly after the 2010 census. Common Cause believes those districts were deliberately drawn for partisan and political purposes, not to give voters fair representation. We expect the courts ultimately will conclude that repressing the views of voters is a violation of the First Amendment’s guarantee of freedom of expression.”

– Statement by Jennifer Bevan-Dangel, executive director of Common Cause Maryland, on December 8 after the Supreme Court ordered a trial to go forward in federal court on whether partisan gerrymandering is an unconstitutional form of redistricting for congressional seats.


It has been 11 years since the Supreme Court figuratively threw up its hands and ruled that it had no way to measure, constitutionally, how much partisanship was too much in the drawing of new election districts for state legislatures and seats in the House of Representatives. It had invited lawsuits to test that issue 18 years earlier, but it said in 2004 that no manageable standards for how courts should handle claims of partisan gerrymandering “have emerged,” so “we must conclude” that those claims could no longer be filed in courts.

In the ensuing years, one thing is clear about such partisan manipulation of voting boundaries: the technique has grown enormously. It has been estimated that, mainly because of redistricting along party lines, some 373 seats in the House of Representatives will be safe next November for the incumbents if they run again – some 85 percent of the total of 435 seats.   Much of that has been attributed to the sweep by Republicans of state legislatures in the most recent elections, giving them broad control over much of the redistricting process – for their own chambers and for the House.

The Supreme Court has taken some notice of this phenomenon, deciding late last June that the voters of a state had the authority to take the redistricting process away from their state legislature and assign it to a non-partisan commission, precisely to get away from partisan control of the process. That is a trend that seems to be spreading among the states.

Still, the court has held fast in recent years to its position that the courts are not in a position to judge the constitutionality of partisan gerrymandering.

But that has just changed. In a unanimous ruling on Tuesday, the Justices cleared the way for a significant test case in a federal court in Maryland, without deciding how it should come out.

After the 2010 census, the Democratic leadership in that state drew new maps that succeeded in shutting Republican candidates out of all but one seat in the state’s eight-member delegation in the House of Representatives.   Some media have said that Maryland’s House delegation is the most gerrymandered in the nation. Many of the districts are oddly shaped, and more than one out of every four Marylanders were shifted to new districts.

A small non-partisan group of voters challenged that map in federal court. Ordinarily, cases about redistricting go to special three-judge trial courts, and from there directly on to the Supreme Court. In this case, however, the original judge refused to send it to such a court, finding that the constitutional challenge was too weak; he relied in part on the Supreme Court’s unwillingness to get involved in the fight over partisan redistricting.

One of the facets of this lawsuit was that, instead of challenging the new Maryland maps on a theory that partisan gerrymandering itself was unconstitutional (the claim that the Justices have ruled out), the challengers here relied upon the First Amendment. They argued that the new maps punished those whose political affiliations were disfavored by the realignments – that is, it contended that those likely to vote Republican were targeted because of their political preferences.

They borrowed the idea for that constitutional claim from a separate opinion that Justice Anthony M. Kennedy wrote when the court last passed up a partisan gerrymandering case eleven years ago. Kennedy wrote that a political gerrymander might “impose burdens and restrictions on groups or persons by reason of their views.” He added that such a burden “would likely be a First Amendment violation, unless the state shows some compelling interest.”

In the court’s new ruling on Tuesday, Justice Antonin Scalia wrote that the trial judge had a specific duty to send the case to a three-judge court for a full trial. The federal law governing such cases, the decision said, gives the judge no choice, once a new lawsuit falls into the category assigned to such a special court.

The opinion went on to say that the court was not “expressing any view”on the Maryland challengers’ constitutional claim, but it nevertheless commented that this is not the kind of case that can be scuttled without a trial for lack of substance. This case, it said, made “a plea for relief based on a legal theory put forward by a Justice of this court and uncontradicted by a majority in any of our cases.”

The challengers, it added, may ultimately fail in that claim, but the law entitles them to make it before a three-judge court.

That is a breakthrough, even though it leaves the actual outcome yet to be determined, because it will give the trial court – and, ultimately, the Supreme Court – the opportunity for a penetrating analysis of the effects of partisan gerrymandering on voters whose affiliations are disfavored. And that is a challenge, depending upon how any state legislature has sought to give one party an advantage, that Democrats as well as Republicans can undertake.

The case from Maryland could make its way back to the Supreme Court in a year or so for a potential constitutional reckoning.

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