Annotated Guide to the Benisek Amicus Briefs, Version 2.0

As the Supreme Court prepares to take up a partisan-gerrymandering challenge to Maryland’s congressional map, more than a dozen briefs have been filed from a diverse array of friends of the court.

March 13, 2018
Supreme Court

On March 28, the Supreme Court will hear argument in Benisek v. Lamone, the partisan-gerrymandering challenge to Maryland’s 2011 congressional map. Benisek is one of the highest-profile cases of the Court’s 2017-18 term: Along with Gill v. Whitford, a partisan-gerrymandering case argued last October, Benisek offers the Court an opportunity to establish clear limits for the first time on extreme gerrymandering.

Ahead of argument, the Court received fifteen amicus briefs from a diverse array of constitutional law professors, civil rights organizations, good government groups, states, and politicians—some supporting the plaintiffs (who are the appellants in this case), others supporting Maryland (which is the appellee in this case). To help court watchers get up to speed, the Brennan Center prepared this short annotated guide to the amicus briefs, which includes summaries of each brief’s most prominent or unique points.

For more on Benisek, including key filings or court rulings from all phases of the case, visit our regularly updated case page. And for a quick introduction to the many amicus briefs on partisan gerrymandering filed earlier this term, visit our annotated guide to the Whitford amicus briefs.

Brief of the Brennan Center for Justice in Support of Appellants

Summary: This brief, filed by the Brennan Center for Justice, explains that Maryland’s 2011 congressional redistricting was an extreme partisan gerrymander designed to maximize and lock-in the Democratic supermajority in the state’s congressional delegation. As the brief demonstrates, readily discernable evidentiary signposts—such as single-party control of the redistricting process—can help the courts accurately differentiate between lawful redistricting and unlawful, extreme partisan gerrymanders. The Brennan Center and the law firm Holwell Shuster & Goldberg LLP are co-counsel for this brief.

Brief of Professor Michael Kang in Support of Appellants

Summary: This brief, filed by Professor Michael Kang of Emory University School of Law, explains that the Supreme Court has never held that partisan advantage is a valid basis for government action, and that such advantage cannot be a legitimate basis for redistricting. The law firm Davis Polk LLP is counsel for Professor Kang’s filing.

Brief of the American Civil Liberties Union, the ACLU of Maryland, and the New York Civil Liberties Union in Support of Appellants

Summary: This brief, filed by the ACLU, two of its state affiliates, and Professor Samuel Isaacharoff of the New York University School of Law, argues that courts should focus on entrenchment—a state of affairs where legislators have drawn districts to insulate a party’s hold on power from electoral shifts—to determine when a map violates the constitution. The amici further explain that partisan-gerrymandering claims are more manageable on a state-wide, rather than a district-specific, basis.

Brief of the Campaign Legal Center and the Southern Coalition for Social Justice in Support of Neither Party

Summary: This brief, filed by the Campaign Legal Center, the Southern Coalition for Social Justice, and Professor Nicholas Stephanopoulos of the University of Chicago Law School, argues that Maryland’s congressional map would likely qualify as an unconstitutional partisan gerrymander under the test that the Campaign Legal Center proposed in Gill v. Whitford.

Brief of Bipartisan Current and Former Members of Congress in Support of Appellants

Summary: The Constitutional Accountability Center filed this brief on behalf of a bipartisan panel of 25 current and former members of Congress. The brief examines the Constitution's text, structure, and history—as well as the Supreme Court's case law—to illuminate both how redistricting plans designed to entrench a party's majority status violate core constitutional values and why the courts must put limits on these extreme partisan gerrymanders.

Brief of the National Association for the Advancement of Colored People, Inc., the Georgia State Conference of the NAACP, Lavelle Lemon, Marlon Reid, Celeste Sims, Patricia Smith, and Coley Tyson in Support of Neither Party

Summary: This brief was filed by the NAACP and one of its state chapters along with the plaintiffs in a pending Georgia redistricting lawsuit. The amici contend that “invidious intent”—that is, an intent to minimize the voting strength of a group of voters—is the key to a legal standard that will be flexible enough for courts to address different forms of partisan gerrymandering. The Lawyers’ Committee for Civil Rights Under Law and Bryan Cave LLP are co-counsel with the NAACP for this filing.

Brief of Governors Lawrence Joseph Hogan, Jr., Arnold A. Schwarzenegger, Joseph Graham “Gray” Davis Jr., and John R. Kasich in Support of Appellants

Summary: This brief, filed on behalf of a group of prominent current and former state governors, emphasizes that the normal political process cannot combat extreme partisan gerrymanders and, as a result, legislators should not be given unbounded power to draw electoral districts. The law firm Reed Smith LLP is counsel for the governors’ filing.

Brief of Common Cause in Support of Appellants

Summary: This brief, filed by Common Cause, describes how the gerrymandering of Maryland’s congressional map violated the First Amendment’s ban on viewpoint discrimination. The brief also highlights the factual findings and legal conclusions made by the panel in Common Cause v. Rucho, Common Cause’s concurrent challenge to North Carolina’s 2016 remedial congressional map. The law firms Bondurant, Mixson & Elmore, LLP and Paterson Belknap Webb & Tyler LLP are co-counsel for Common Cause’s filing.

Brief of International Municipal Lawyers Association, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and the County of Santa Clara in Support of Appellants

Summary: This brief, filed on behalf of several organizations and entities representing the interests of municipalities, explains how partisan gerrymandering undercuts the political influence of cities and other localities by dividing them among multiple electoral districts. Michael Parsons, Corey Roush, and the International Municipal Lawyers Association are co-counsel for this brief.

Brief of Steven M. Shapiro in Support of Appellants

Summary: This brief, filed by one of the original plaintiffs in this case, contends that Maryland’s gerrymander violates both the First Amendment and Article I, Section 2 of the U.S. Constitution. The brief recommends that the Justices model their ruling in this case after the Court’s racial-gerrymandering law. Professor Alan Morrison of the George Washington University Law School is counsel for this brief.

Brief of Judicial Watch, Inc. and Allied Educational Foundation in Support of Neither Party

Summary: This brief, filed by Judicial Watch, argues that plaintiffs bringing partisan-gerrymandering claims should be required to demonstrate that the maps that they are challenging have violated “traditional redistricting principles,” such as compactness, contiguity, and respect for established political boundaries. The law firm of Wise Carter Child & Caraway, P.A. is co-counsel with Judicial Watch on this filing.

Brief of the State of Wisconsin in Support of Appellees

Summary: This brief, filed by the State of Wisconsin Department of Justice, contends that neither the standard advocated by the appellants in Benisek, nor the standard endorsed by the appellees in Whitford offer the kind of “limited and precise” guidance that the Supreme Court has demanded for partisan-gerrymandering claims. Nonetheless, the brief asserts, the Benisek standard is superior in certain respects to the Whitford standard. Wisconsin’s Solicitor General is counsel of record for this brief.

Brief of the States of Michigan, Arkansas, Colorado, Georgia, Indiana, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, Texas, and Utah in Support of Appellees

Summary: This brief, filed by a coalition of twelve states, contends that redistricting is an intrinsically political process that courts cannot and should not regulate. To the extent state legislatures engage in “undemocratic redistricting,” the brief continues, they should be checked by Congress. Furthermore, the states contend, the First Amendment supplies no standards for determining when redistricting has become excessively partisan. Michigan’s Solicitor General is counsel of record for this filing.

Brief of the Freedom Partners Chamber of Commerce in Support of Appellees

Summary: This brief, filed by the Freedom Partners Chamber of Commerce, argues that partisan gerrymandering does not impact any First Amendment interests and may only be regulated by Congress. The amicus also asserts that the Supreme Court should declare partisan-gerrymandering claims non-justiciable to spare courts from the time-consuming and legitimacy-eroding responsibility of policing the redistricting process. The law firm Gibson Dunn & Crutcher LLP is counsel for this brief.

Brief of Senator Joseph B. Scarnati III in Support of Appellees

Summary: This brief, filed by the President Pro-Tempore of the Pennsylvania State Senate, principally argues that neither the lower court, nor the appellants have identified any consequences of partisan gerrymandering that harm voters’ First Amendment rights, and, therefore, the appellants lack standing for their claims. The law firms Holtzman Vogel Josefiak Torchinsky PLLC and Blank Rome LLP are co-counsel for Senator Scarnati’s filing.

Annotated Guide to the Benisek Amicus Briefs PDF by The Brennan Center for Justice on Scribd