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February 5, 2018

IS SIMPLE BETTER?: THE ANSWER TO PARTISAN GERRYMANDERING MAY LIE WITH BENISEK V. LAMONE RATHER THAN GILL V. WHITFORD

By: Torie Abbott Watkins, Volume 102 Staff Member

In today’s political discourse it is an all but impossible challenge to get Democrats and Republicans to agree on anything. There are few more politicized topics than that of political gerrymandering.[1] For years, the Supreme Court failed to act on a case dealing explicitly with political gerrymandering, questioning the justiciability of any such case.[2] That is, until this term,[3] when the Justices took two.[4]

This Post will first discuss both gerrymandering cases the Supreme Court is currently considering, Gill v. Whitford and Benisek v. Lamone. Then it will explain the importance of the Supreme Court taking up the second case, Benisek, and what this subsequent case could mean for partisan gerrymandering jurisprudence.

I. THE TALE OF TWO GERRYMANDERING CASES

While both Gill and Benisek address the issue of partisan gerrymandering, the facts, and the legal theories advanced differentiate the two cases.

A. Gill v. Whitford

A group of Wisconsin citizens filed a District Court lawsuit on July 8, 2015.[5] In their complaint the Plaintiffs argued Wisconsin Act 43, the state plan adopted in 2012 for statewide redistricting, was unconstitutional partisan gerrymandering violating both the First and Fourteenth Amendments.[6] Plaintiffs argued diluting the power of Democrat voters, Wisconsin Republicans drafted Act 43 “employ[ing] two gerrymandering techniques: ‘cracking’—‘dividing a party’s supporters among multiple districts so that they fall short of a majority in each one’—and ‘packing’—‘concentrating one party’s backers in a few districts that they win by overwhelming margins.’”[7]

In evaluating the Plaintiff’s claim, the District Court explained “the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.”[8] Ultimately, the District Court found that from the onset, the Act 43 drafters intended to redistrict in a way that would keep the Republican Party in power of the Wisconsin Assembly.[9] Further, their discriminatory intent was successful in both the 2012 and 2014 elections in which Republicans received, in each respective year, 48.6% of the vote but 60 Assembly seats, and 52% of the vote but 63 Assembly seats.[10] In addition, the results could not be adequately justified by Wisconsin’s political makeup or other neutral factors.[11]

As a result, the District Court found in favor for the Plaintiffs, which represented the first time in more than three decades that a federal court found a state participated in unlawful partisan gerrymandering.[12] The State of Wisconsin, however, appealed, and on June 19, 2017 the Supreme Court agreed to hear the case.[13] Oral arguments took place on October 3, 2017.[14] The Court to date has not issued an opinion on Gill.

B. Benisek v. Lamone

Shortly after the Gill oral arguments, the Court surprised onlookers yet again by agreeing to take on another partisan gerrymandering case, Benisek v. Lamone.[15] Benisek deals exclusively with Maryland’s 6th U.S. House of Representatives Congressional District.[16] Prior to the state’s redistricting plan, the 6th Congressional District elected a Republican in ten straight elections.[17] In 2011, the Maryland Legislature, at the time under the Democratic Party’s control, redrew the district.[18] Under the plan, “over 65,000 registered Republican voters [were removed] from the district . . . [and] a net total of over 30,000 Democratic voters [were added] to the district.”[19]

As a result, Republican voters in the district filed suit in district court alleging the Democrats’ redistricting plan violated the First Amendment.[20] The Plaintiffs gave three reasons to support the claim, mirroring the three-part test used in Gill. First, the Plaintiffs alleged the Maryland Legislature, in redrawing the 6th Congressional District, purposely considered the Republican voter’s voting history and political affiliation thus violating voters’ First Amendment protection from political retaliation.[21] Second, after the plan’s 2011 enactment, Democrats were elected in both 2012 and 2014.[22] Last, according to the Plaintiffs, there was no legitimate justification for “cracking” the district.[23]

Ultimately, the Maryland District Court denied the Plaintiffs’ request for a preliminary injunction to prevent further use of the map,[24] and stayed any further proceedings until the Supreme Court issued its Gill decision.[25] Plaintiff’s appealed the injunction to the Supreme Court.[26] On December 8, 2017, the Supreme Court announced it would hear Benisek v. Lamone, making it the second partisan gerrymandering case the Court took on this term.[27]

II. BENISEK OFFERS ANSWERS TO GILL’S ORAL ARGUMENT QUESTIONS

There are some key differences between the two cases. First, Gill’s Act 43 dealt with state-wide redistricting for the state assembly. Benisek, however, deals exclusively with one U.S. Congressional district in Maryland. Second, while the Gill Plaintiffs allege unlawful behavior by the Republicans, the Benisek Plaintiff accuse the Democrats of unlawful partisan gerrymanders. Third, Gill advances a First and a Fourteenth Amendment theory of unconstitutionality with the lion share of attention on the Equal Protection Clause. Benisek, however, deals almost exclusively with the First Amendment.

These cases are very similar and it is important to not oversell their differences. However, it is these differences that help answer why the Court chose to take on Benisek and also help predict what the addition of Benisek to the Court’s docket could mean for future partisan gerrymandering jurisprudence.

Gill has been the more prominent of the two cases since it was the first partisan gerrymandering case the Supreme Court took up this term. There is reason to believe, however, that the Court agreeing to hear Benisek this term signals the justices may in fact be ready to declare that a state engaged in unlawful partisan gerrymandering. Benisek offers something other gerrymandering cases, Gill included, have lacked. It is simpler,[28] it answers Justice Kennedy’s request in Vieth v. Jubelirer for a First Amendment rather than Equal Protection standard, and it gives the Court a chance to point a finger at Republicans and Democrats.

A. Slapping Both Political Parties on the Metaphorical Wrist

While the conservative wing of the Court is less likely to step into the gerrymandering judicial ring and find the issue justiciable, adding Benisek to the docket gives the conservatives a chance to place the blame on both political parties.

At Gill’s oral argument, Chief Justice Roberts expressed his concern for judicial interference in gerrymandering cases and what such a precedent would do to the integrity of the Court. He predicted that establishing precedent for partisan gerrymandering would lead the Court to pick in each subsequent case who wins, the Democrats or the Republicans, equating to “bunch of baloney” in the country’s eyes.[29]

While the particular conservatives on the Court are less likely to find the issue of partisan gerrymandering judiciable, by adding Benisek to the mix the conservative Justices have an opportunity to show that partisan gerrymandering, whether by Republicans in Wisconsin or Democrats in Maryland, is unlawful, perhaps softening the blow.

B. Reliance on the First Amendment Rather than Equal Protection Clause

Even with the Chief’s oral argument comments, all eyes are on Justice Kennedy. While both Gill and Benisek allege a First Amendment violation, Benisek is much more centralized and focused on the First Amendment challenge,[30] while Gill deals much more with the Fourteenth Amendment.

In his Vieth concurrence and through his questioning at the Gill oral argument, Kennedy showed his favor for settling this issue using the First Amendment.[31] Since the Court’s last expansive look at partisan gerrymandering in Vieth, the ultimate swing Justice has expressed his willingness to strike down a gerrymandered district if the Court could develop a “workable standard.”[32] The basis of using the Equal Protection Clause comes down to the Court’s long “one-person/one-vote” jurisprudence, a complicated evolution that newcomer Justice Neil Gorsuch honed in on during the oral argument.[33] Contrarily, the First Amendment relies on protection from political retaliation and assuring individual voters are not discriminated against based on personal political preference.[34] Justice Kennedy likely sees the First Amendment “political retaliation” approach as a more straightforward, simply way to a “workable standard.”

Nonetheless, if Justice Kennedy does find either state engaged in unlawful partisan gerrymandering, he certainly will do so using the First Amendment rather than the Equal Protection clause.[35] Benisek gives him a more direct route there. Cleverly, the Benisek plaintiffs quoted Justice Kennedy’s Vieth concurrence as support for using the First Amendment to find unlawful partisan gerrymandering.[36] Both Gill and Benisek have challenges, and a result is far from certain. However, Benisek gives the conservative Justices a split-the-baby approach that places blame on both political parties, and presents Justice Kennedy a simpler route to the First Amendment—an issue on which he is likely to side with the liberal wing.

  1. Compare Jeff Greenfield, The Democrats’ Gerrymandering Obsession, Politico (Oct. 6, 2017), https://www.politico.com/magazine/story/2017/10/06/supreme-court-gerrymandering-democrats-obsession-215686, with Adam Liptak, Prominent Republicans Urge Supreme Court to End Gerrymandering, N.Y. Times (Sept. 6, 2017), https://www.washingtonpost.com/politics/courts_law/2017/12/08/4fde65f4-dc66-11e7-b1a8-62589434a581_story.html?utm_term=.4698817ac2e0. For a look at gerrymandering across the country, see Christopher Ingraham, America’s most gerrymandered congressional districts, Wash. Post (May 15, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/?utm_term=.bcb35b40b4c0. ↑
  2. See Vieth v. Jubelirer, 541 U.S. 267, 305 (2004) (“We conclude that neither Article I, § 2, nor the Equal Protection Clause, nor (what appellants only fleetingly invoke) Article I, § 4, provides a judicially enforceable limit on the political considerations that the States and Congress may take into account when districting.”). ↑
  3. Robert Barnes, Supreme Court takes up Wisconsin as test in partisan gerrymandering claims, Wash. Post (Oct. 3, 2017), https://www.washingtonpost.com/politics/courts_law/supreme-court-takes-up-wisconsin-as-first-test-in-partisan-gerrymandering-claims/2017/10/03/4349b5de-a82a-11e7-b3aa-c0e2e1d41e38_story.html?utm_term=.6f8d170a9749. ↑
  4. Robert Barnes, Supreme Court will take up a second gerrymandering case this term, Wash. Post (Dec. 8, 2017), https://www.washingtonpost.com/politics/courts_law/supreme-court-takes-up-wisconsin-as-first-test-in-partisan-gerrymandering-claims/2017/10/03/4349b5de-a82a-11e7-b3aa-c0e2e1d41e38_story.html?tid=a_inl&utm_term=.bedf1a027d64. ↑
  5. Complaint at 1, Whitford v. Gill, 218 F. Supp. 3d 837 (W.D. Wis. 2016) (No. 15-cv-421-bbc). ↑
  6. Id. at 1–2. ↑
  7. Whitford v. Gill, 218 F. Supp. 3d 837, 854 (W.D. Wis. 2016). ↑
  8. Id. at 884. ↑
  9. Id. at 890–96. ↑
  10. Id. at 898–902. ↑
  11. Id. at 921–26. ↑
  12. Jurisdictional Statement at 1, Whitford v. Gill, No. 16-1161 (2017). ↑
  13. See Adam Liptak, Justices to Hear Major Challenge to Partisan Gerrymandering, N.Y. Times (June 19, 2017), https://www.nytimes.com/2017/06/19/us/politics/justices-to-hear-major-challenge-to-partisan-gerrymandering.html. ↑
  14. Transcript of Oral Argument at 1, Whitford v. Gill, No. 16-1161 (2017). ↑
  15. See Adam Liptak, Justices to Hear Second Partisan Gerrymandering Case, N.Y. Times (Dec. 8, 2017), https://www.nytimes.com/2017/12/08/us/politics/supreme-court-partisan-gerrymandering.html. ↑
  16. Plaintiffs’ Second Amended Complaint at 3, Benisek v. Lamone, 266 F. Supp. 3d 799 (D. Md. 2017). ↑
  17. Id. ↑
  18. Id. at 5. ↑
  19. Id. at 3. ↑
  20. Id. at 5. ↑
  21. Id. ↑
  22. Id. ↑
  23. Id. ↑
  24. Order Denying request for Preliminary Injunction at 1, Benisek v. Lamone, 266 F. Supp. 3d 799 (D. Md. 2017). ↑
  25. Order Entering Stay at 1, Benisek v. Lamone, 266 F. Supp. 3d 799 (D. Md. 2017). ↑
  26. Notice of Appeal at 1, Benisek v. Lamone, 266 F. Supp. 3d 799 (D. Md. 2017). ↑
  27. See Benisek v. Lamone, SCOTUSBlog, http://www.scotusblog.com/case-files/cases/benisek-v-lamone/. ↑
  28. Lyle Denniston, Supreme Court take on another partisan gerrymandering case, Constitution Daily (Dec. 9, 2017), https://constitutioncenter.org/blog/supreme-courttakes-on-another-partisan-gerrymander-case. ↑
  29. Transcript of Oral Argument at 37–38, Whitford v. Gill, No. 16-1161 (2017). ↑
  30. Compare Jurisdictional Statement at 1, Benisek v. Lamone, No. 17-333 (2017) (“This case is a First Amendment challenge to the partisan gerrymander of a single federal congressional district.”) with Appellees’ Motion to Affirm at 16, Whitford v. Gill, No. 16-1161 (2017) (“The critical question in this case is whether the partisan gerrymandering test adopted by the Panel is ‘judicially discernible and manageable.’”). ↑
  31. Transcript of Oral Argument at 4, Whitford v. Gill, No. 16-1161 (2017) (“But suppose the Court . . . decided that this is a First Amendment issue, not an equal protection issue. Would that change the calculus so that, if you’re in one part of the state, you have a First Amendment interest in having your party strong or the other party weak?”). ↑
  32. Vieth v. Jubelirer, 541 U.S. 267, 307 (2004) (“A determination that a gerrymander violates the law must rest on something more than the conclusion that political classifications were applied. It must rest instead on a conclusion that the classifications, though generally permissible, were applied in an invidious manner or in a way unrelated to any legitimate legislative objective.”) ↑
  33. Transcript of Oral Argument at 59–60, Whitford v. Gill, No. 16-1161 (2017). ↑
  34. Id. at 60. ↑
  35. Vieth, 541 U.S. at 314 (Kennedy, J., concurring) (“The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering.”). ↑
  36. Plaintiffs’ Second Amended Complaint at 5, Benisek v. Lamone, 241 F. Supp. 3d 566 (D. Md. 2017). ↑
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