Constitution Daily

Smart conversation from the National Constitution Center

Supreme Court takes on another partisan gerrymander case

December 9, 2017 by Lyle Denniston

 

In a surprise move, the Supreme Court on Friday afternoon expanded its review of challenges to the decades-old practice of drawing election boundaries to benefit the candidates of the party in power.  It did so by taking on a claim by seven Maryland voters that their state legislature deliberately fashioned a congressional district that long had been a Republican stronghold into one that elects a Democrat instead.

The Justices already are deep in deliberations over a Wisconsin case that also involves the practice of “party gerrymandering,” but involves seats in the state legislature rather than in the U.S. House of Representatives.

Friday’s order gave no explanation of why the Justices added the Maryland case, Benisek v. Lamone, to the docket for a decision in the current term.  Already under review is the Wisconsin case, Gill v. Whitford, which the Justices have been studying in private since holding a public hearing on it on October 3.

The Court apparently is not yet ready to release a decision in the Wisconsin case, and that was one factor that made it a surprise that they were willing to move into the Maryland case now.  It is quite common, when the Court already is reviewing a case raising an issue to hold other cases raising the same or a similar issue until after the initial one has been decided.

Although there are some key differences between the Maryland and Wisconsin cases, other than the fact that they involve elections at different legislative levels, they are close enough in scope that most observers expected that the Maryland case would have to await the outcome of the case ahead of it in timing, from Wisconsin.  That expectation rose when the Justices, in September, refused to move up the schedule on the Maryland case so that it would be reviewed along with the Wisconsin case, which the Justices had agreed last June to review.

Instead of holding the Maryland case, though, the Justices agreed on Friday to accept it at the first opportunity, under current procedures, to do so.

Although the order accepting the case did not give a reason for that, one possible explanation is that the Justices may have looked at it in comparison to the Wisconsin case and decided that the ruling they are preparing would not necessarily fit the Maryland case, too.

Perhaps they see a key difference in the fact that the Wisconsin case involves a challenge to the statewide election maps that were drawn up for the entire lower house of the legislature, while the Maryland case is a test of the lines drawn for a single district for a member of the U.S. House.

In fact, one of the issues before the Court in the Wisconsin case is an argument by the state that voters living and voting in only one district have no legal right to level a statewide challenge, because they supposedly can show no harm to themselves outside their own district.   The Justices will have to decide that a statewide challenge is permissible, before they would move on to rule on whether the partisan makeup of the districting in Wisconsin was valid under the Constitution.

The Maryland case involves only the Sixth House District.  For 20 years, it had regularly elected a Republican to that seat.  But, in 2011, the state legislature drew lines that caused a shift of more than 90,000 voters’ areas in or out of the district, with twice as many Republicans moved out as Democrats that were moved in.  The challengers – seven Republican voters who had lived in the old Sixth District — told lower courts that they had gathered strong evidence that state Democratic leaders drew the new lines with the specific aim of turning the Sixth into a Democratic district.   Indeed, it has since elected a Democrat, Rep. John Delaney, in the 2012, 2014 and 2016 elections.

Another difference between the two cases that the Justices may have noticed, looking at them side by side to decide what to do with the Maryland case, is that each challenge to partisan gerrymandering relies upon a different constitutional theory.

The Wisconsin claim is that a partisan gerrymander harms the minority party by deviating statewide from “partisan symmetry” — that is, drawing lines that create districts that are out of balance with each other, with the majority party getting a statewide advantage over the minority party.   It involves a rather complex mathematical formula based on “packing” minor party voters into fewer districts, or “cracking” districts dominated by minor party voters to spread them into majority party districts.

As the Maryland case developed, it has relied upon a simpler theory: when those drafting new legislative districts intentionally place voters in districts depending upon what party they have supported in the past, with the result that the disfavored party’s followers have their votes “diluted.”   The federal courts are very familiar with vote dilution claims, after years of dealing with efforts to reduce the election influence of voters of minority races.    The dilution theory, when applied to a partisan gerrymander claim, seeks to show that voters have been retaliated against because of their political views, said to be a violation of the First Amendment.

For decades, the Supreme Court has been unwilling to rule on the constitutionality of partisan gerrymandering, because the Justices have not found a workable theory for judging when there has been too much partisanship – especially since drawing new district maps every ten years is always infused with politics and partisan aspirations.

Justice Anthony M. Kennedy, who has held an influential vote in this field of the law, has indicated in the past that he might find favor with an argument based upon the First Amendment rights of voters to express themselves in the way they vote.

The Maryland case probably will not come up for a hearing before the Justices earlier than next March.  The Justices have the option of holding off on deciding the Wisconsin case until after that, but also the option of going ahead to decide it on its own, and then examine the Maryland case as a potential sequel.

In both cases, the Court took on the case while leaving open the question – to be discussed by lawyers when a hearing was held – whether the Justices have jurisdiction to hear it.  That’s because each case reached the Justices from special three-judge trial courts, with any appeal going directly to the Supreme Court – if jurisdictionally proper.

In each case, there are jurisdictional arguments by the states involved that the Court lacks the authority to reach a decision in each.

When the Maryland case was last before a three-judge federal trial court in Baltimore, the judges split 2-to-1 in finding that the GOP voters had not made a case that they were harmed by the 2011 map for the Sixth District – a decision made before a full trial, since that court decided to put further proceedings on hold until the Supreme Court had provided new guidance in deciding the Wisconsin case.  However, that did not bar the GOP voters from taking their case on to the Justices, gaining Friday’s vote to hear it.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

 

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