MD Redistricting: On Friday, the Supreme Court agreed to hear an appeal from Republicans who are challenging Maryland’s Democratic-drawn congressional map as an unconstitutional partisan gerrymander. This case, known as Benisek v. Lamone, marks the second time this term that the court will hear such a challenge following a widely publicized case against GOP gerrymandering in Wisconsin called Gill v. Whitford. While plaintiffs in both cases have carefully calibrated their arguments to appeal to the court's perennial swing Justice Anthony Kennedy, they’re each taking distinct approaches to produce a standard for when the courts should strike down a map. As Daily Kos Elections' Stephen Wolf explains, these differing legal theories could be pivotal to each case’s chance of success and could lead to dramatically different outcomes if they wind up getting applied to maps nationwide.
Plaintiffs in Whitford have used statistical tests to argue that gerrymandering violates the rights of voters under the First and 14th amendments. Their proposed standard would require multiple elections take place to demonstrate the durability of a gerrymander in question before the courts could intervene. By contrast, the plaintiffs in Benisek are relying strictly on the First Amendment. Their case is tailored toward Kennedy’s own past rulings, where he has suggested that, if a suitable standard could be found for evaluating when gerrymanders violate the constitution, it would likely stem from the First Amendment rather than the guarantee of equal protection of the laws of the 14th Amendment.
So instead of relying on a statistical test to decide when gerrymandering has gone too far, the Benisek plaintiffs argue that any discriminatory partisan intent should render a district invalid. Indeed, former Gov. Martin O’Malley has explicitly admitted that Maryland Democrats drew their congressional map to achieve partisan ends. Critically, the Benisek standard wouldn’t require waiting for multiple elections to take place before the courts could intervene, unlike with the Whitford proposal, which could allow mapmakers to get away with illegal gerrymanders for two or more elections at the start of each decade.
Unlike in Whitford, where an entire map is under challenge, the Benisek plaintiffs are only targeting an individual district. They argue that Democratic lawmakers retaliated against Republican voters in the 6th Congressional District and violated their First Amendment right to freedom of association when they turned what had long been a Republican seat into one that heavily favored Democrats. (Indeed, longtime GOP Rep. Roscoe Bartlett immediately lost to Democrat John Delaney in 2012, the first election held under the new lines.)
Not having to wait for flawed elections to take place could make it much easier to challenge gerrymanders under Benisek, but this approach isn’t without drawbacks. The Whitford plaintiffs’ reasoning targets Wisconsin’s entire Assembly map, and by using a statistical test to measure gerrymandering, legislators could be forced to redraw a large swath of the map to remedy a violation of that test. By contrast, the Benisek challengers might struggle to successfully convince a court that every flawed district in a single state is illegally gerrymandered, since the evidence may be stronger with some districts than others even though they’re all part of the same partisan map.
It's unclear just exactly what the significance of the Supreme Court taking on this case is now, and there are multiple reasons it may have done so. However, it's likely an encouraging sign that the court may end up finally putting limits on the wave of partisan gerrymandering that has swept the nation.