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Analysis

5 Things to Know About the Maryland Partisan-Gerrymandering Case

Five things to know about the important Maryland partisan-gerrymandering case slated for oral argument at the U.S. Supreme Court.

March 22, 2018

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