On March 28, the U.S. Supreme Court will hear oral argument in its second important partisan-gerrymandering case of the term, Benisek v. Lamone, a challenge to Maryland’s congressional map. Here are five things to get you up to speed.
1. What's Benisek v. Lamone About?
Benisek arises from an effort by a group of Maryland voters to block the use of the state’s current congressional map in the 2018 elections.
The Maryland voters challenged the map as a partisan gerrymander that violated both the First Amendment and Article I of the U.S. Constitution. In August 2016, the lower court denied a request to dismiss the case and set out a legal standard for determining when partisan map-drawing violates the Constitution. The parties then started preparing the case for trial, including producing documents related to the 2011 redistricting.
Later, the voters asked the court to bar use of the map pending the outcome of their suit, contending that the evidence produced during the pre-trial process was enough to show that they were more than likely to win at trial. The court, however, took a different view of the evidence and denied their request. The court then placed the case on hold pending the Supreme Court’s ruling in Gill v. Whitford, the Wisconsin partisan-gerrymandering case that the Justices heard this past fall. The plaintiffs appealed these rulings to the U.S. Supreme Court, setting up the Justices’ second opportunity this term to consider the constitutionality of partisan gerrymandering.
Together, Benisek and Whitford could have major implications for redistricting because, thus far, the Justices of the Supreme Court have not been able to agree on a standard for deciding when a map goes too far. The Court may finally do so in one or both cases this summer.
2. What makes Maryland's map especially bad?
The kind of gerrymandering that took place this decade in Maryland (and in a handful of other states) is especially harmful to democracy because it locks in an artificial advantage for one party over the other and makes maps unresponsive to voters.
Not surprisingly, Maryland’s map is the product of a redistricting process that one party—in this case, Democrats—entirely controlled. Maryland’s Democrats used their control to convert a map that more fairly represented Democrats and Republicans into one that has reliably delivered 7 of the state’s 8 congressional seats to Democrats in each of this decade’s elections (and is all but assured to do so again in 2018).
A 7-to-1 Democratic majority is an odd outcome for Maryland: Although Democrats enjoy a large registration advantage over Republicans, the state has several sizeable centers of Republican power and even elected a Republican governor in 2014.
The Democrats in charge of the redistricting process, however, minimized Republican voices by artfully packing and cracking them. In the Democrats’ most flagrant move, they turned the formerly reliably red 6th District blue by siphoning off Republican voters and adding heavily Democratic areas near Washington, D.C. to the district. Meanwhile, in the 1st District, they strategically added Republican voters from the suburbs of Baltimore and Hanover to an already heavily Republican district in order to make neighboring districts more reliably Democratic.
But Maryland’s Republican voters aren’t the only voices the gerrymander diminished. The state’s African-American voters had their voting strength undercut, too. To create a reliable 7-to-1 advantage, Democrats spread African-American voters—their most reliable constituency—out among the districts. As advocates for African-American voters argued at the time, a map drawn to give fuller voice to Maryland’s communities of color would likely have given Democrats only a 5-to-3 edge. When racial equity collided with partisan advantage, Maryland Democrats chose partisan advantage.
3. Why is it urgent for the Supreme Court to act now?
Partisan gerrymandering is getting worse. This decade, gerrymandering has tended to benefit Republicans, mainly because they happened to control redistricting in more states this cycle. In future decades, however, Democrats may be in a position to gerrymander more aggressively.
Regardless of which party does it, Americans across the political spectrum agree by wide margins that gerrymandering is bad. In 2013, a Harris poll found that seven in ten Americans agreed that those who stand to benefit from drawing electoral lines should not have a say in the way those lines are drawn. This view cut across partisan lines, with 74 percent of Republicans, 73 percent of Democrats, and 71 percent of independents in agreement.
Crucially, the public not only thinks partisan gerrymandering is a problem: It thinks the Supreme Court can be part of the solution. 71 percent of Americans favor the Supreme Court setting limits on partisan gerrymandering, a view that also cuts across partisan lines.
Even elected officials – both Democrats and Republicans – increasingly agree. Ohio governor John Kasich recently called gerrymandering “the biggest problem we have.” Likewise, President Obama called for an end to gerrymandering in his final State of the Union address in 2016, echoing calls made by President Reagan thirty years earlier. Lawmakers from both sides of the aisle recently joined this growing chorus, filing multiple friend-of-the-court briefs that urged the Justices to curb gerrymandering.
And without judicial action, gerrymandering is only going to get worse. As politicians get access to even more powerful mapping technology and more sophisticated voter data, it will become easier for them to create gerrymanders that are even more biased and even more durably so.
The struggle over redistricting power is also set to get worse. Both parties are already gearing up to wage multi-million-dollar fights to flip state legislatures and take control of the redistricting process, which promises only to inject more acrimony and more unfairness into our politics.
4. Has anything important changed since the Whitford argument?
The long-running narrative that courts would find partisan gerrymandering cases too hard to decide has steadily eroded in the wake of October’s Whitford argument.
The plaintiffs in Whitford—backed up by a strong opinion from the lower court—made a compelling argument that partisan gerrymandering cases do not have to be difficult. But since October, two additional courts—a federal court in North Carolina and the Pennsylvania Supreme Court—bolstered that argument when they struck down congressional maps with opinions that were forceful, well-reasoned, and easy to understand. These new opinions should help alleviate concerns that courts have no meaningful legal standards or reliable evidence to guide their decision making. Deciding partisan gerrymandering cases, as it turns out, is proving to be not much different from deciding sexual harassment or securities fraud cases.
5. What will the ramifications of a good ruling be?
A ruling for the plaintiffs in Benisek (and/or Whitford) won’t rid us of everything objectionable about our redistricting processes, nor will it likely change any election results in 2018. But it could set some important outer bounds on partisan map manipulation, ensuring that politicians can’t rig maps to maximize their seats, cement their advantage, or minimize their opponents’ voices. That would be a powerful signal to mapmakers with another round of redistricting less than three years away.
A strong, clear ruling from the Supreme Court placing some limits on maps might also help de-escalate political tensions surrounding the redistricting process. Once politicians and political parties can no longer count on using mapmaking to maximize their advantage, they will have less incentive to duke it out to control redistricting. The result may well be less acrimonious campaigns, less bad blood from redistricting fights, and more cooperation on the state house floor. For voters seeking more representative, accountable, and effective legislatures, that day can’t come soon enough.
For more on the Maryland partisan-gerrymandering case, visit our case page, which contains a comprehensive database of important filings dating back to 2013. And for an overview of the key arguments in the friend-of-the-court briefs filed with the Supreme Court, see our annotated guide.