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A Big Win in the Fight Against Partisan Gerrymandering

A partisan-gerrymandering challenge in Maryland has cleared a critical hurdle.

August 26, 2016

Partisan gerry­man­der­ing has long befuddled the courts. Although judges have recog­nized the harm of the prac­tice, they have been unable to agree on a stand­ard for poli­cing it. But for the second time in a year, a partisan-gerry­man­der­ing chal­lenge has cleared a crit­ical hurdle.

Earlier this week, voters chal­len­ging the draw­ing of Maryland’s 2011 congres­sional map got the green light to proceed with their First Amend­ment claim when a panel of three federal judges voted 2–1 to deny a motion to dismiss from Maryland’s attor­ney general. The voters — plaintiffs in the long-running case Shapiro v. McManus — will now be able to conduct discov­ery in prepar­a­tion for a trial. The victory gives new momentum to a case that, along with a partisan-gerry­man­der­ing chal­lenge pending in Wiscon­sin, could soon be headed for the U.S. Supreme Court, where the Justices will have their first oppor­tun­ity in more than a decade to decide whether partisan gerry­man­der­ing viol­ates the Consti­tu­tion.

The panel’s opin­ion focuses on the legal suffi­ciency of the plaintiffs’ complaint, which chal­lenges the 2011 congres­sional redis­trict­ing plan enacted by the Mary­land General Assembly. The plaintiffs alleged the legis­lature delib­er­ately used inform­a­tion about voters’ partisan affil­i­ations and voting histor­ies to flip Maryland’s Sixth District from an other­wise reli­ably Repub­lican strong­hold into a safe Demo­cratic seat, all in a success­ful attempt to punish Repub­lican voters for cast­ing ballots for their party’s candid­ates. On those facts, the panel ruled, the plaintiffs stated a claim that could go to trial, endors­ing the plaintiffs’ theory that these kinds of district­ing mach­in­a­tions viol­ate the First Amend­ment.

The First Amend­ment prob­lem with Maryland’s redis­trict­ing, the panel explained, was that it diluted the plaintiffs’ votes — that is, made their votes less power­ful than other voters’ — by placing them in districts where they were outnumbered and repeatedly outvoted by Demo­crats, and did so simply because the plaintiffs had voted Repub­lican in the past. That dilu­tion was an example — albeit a novel one — of the kind of retali­ation for polit­ical speech and asso­ci­ation that the First Amend­ment bars.

A First Amend­ment theory of partisan gerry­man­der­ing has been a kind of holy grail for redis­trict­ing plaintiffs ever since Justice Anthony Kennedy sugges­ted the possib­il­ity in his concur­rence to 2004’s Vieth v. Jube­lirer. In addi­tion to perhaps better describ­ing the harms caused by partisan gerry­man­der­ing, the First Amend­ment might offer a detour around the judi­cial grid­lock that’s snarled prior attempts to treat it like a Four­teenth Amend­ment prob­lem. That was precisely the perspect­ive of the Shapiro panel, which pivoted off Justice Kennedy’s concur­rence to take a new approach to the issue.

The panel defined its partisan gerry­man­der­ing stand­ard as a three-part test. Accord­ing to the court, to state a First Amend­ment claim, plaintiffs have to allege three things: First, that the mapmakers inten­ded to retali­ate against them for their polit­ical expres­sion or affil­i­ation (intent); second, that the new map in fact harmed them (injury); and third, that the harm could­n’t have arisen absent the mapmakers’ retali­at­ory agenda (caus­a­tion). The core alleg­a­tions of plaintiffs’ complaint, the panel concluded, were enough to pass this test at the plead­ing stage.

Despite the win for the plaintiffs, the panel did make efforts to limit the reach of its decision to address the Supreme Court’s concerns that partisan-gerry­man­der­ing litig­a­tion could drag courts into every redis­trict­ing dispute. The panel emphas­ized three limits to its test: First, that partisan mapmak­ing is only uncon­sti­tu­tional if it is retali­at­ory; second, that plaintiffs have to provide object­ive evid­ence of the mapmakers’ bad intent; and third, that the plaintiffs must be harmed in a “palp­able and concrete” way.

While this week’s decision is a signi­fic­ant victory for those fight­ing partisan-redis­trict­ing abuses, a lot remains to be resolved. The plaintiffs still will have to carry the day at trial in order to win their case. And the Supreme Court ulti­mately will need to decide if this is the case that estab­lishes — at long last — a work­able stand­ard for poli­cing partisan-gerry­man­der­ing abuses. As the dissent penned by U.S. District Judge James K. Bredar suggests, even judges (or Justices) gener­ally convinced that partisan gerry­man­der­ing is uncon­sti­tu­tional might have doubts regard­ing whether the major­ity’s test is the best way to police it. Never­the­less, the panel’s ruling is a substan­tial step forward in a case that’s encour­aging the courts to explore novel and innov­at­ive approaches to a seri­ous, age-old prob­lem.