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. Since the 1980s, the Supreme Court has repeatedly held that partisan gerrymandering could theoretically violate the Constitution, but it has never actually invalidated any particular map on such grounds, saying it lacks a standard to decide when to do so. A court victory for the plaintiffs in this case, known as Benisek v. Lamone, could therefore establish such a standard, setting a far-reaching precedent that could finally begin to place limits on the epidemic of gerrymandering that has swept the nation.
Republicans were in charge of redistricting in vastly more states following the 2010 census that Democrats, but Maryland was one of the rare places where Democrats had control over the process. Shown at the top of this post, Maryland's map gets routinely described as one of the worst partisan gerrymanders in the country. However, while it certainly was crafted to benefit Democrats, its tortured lines aren’t actually designed to gain a maximum partisan advantage. Nevertheless, while Maryland Democrats didn’t push their map to the limits, they still unquestionably engaged in partisan gerrymandering by turning the 6th District from red to blue.
In an important 2004 case on this topic called Vieth v. Jubelirer, Justice Anthony Kennedy, as the deciding vote, refused to strike down the map at issue on the grounds that it represented an unfair partisan gerrymander. (The liberal justices all would have invalidated the map; the conservatives would have kept it.) However, Kennedy effectively opened the door for future challengers if they could ever come up with a new standard for evaluating such claims—a standard that would have to satisfy the court’s perennial swing justice.
The Supreme Court heard arguments in October in a widely publicized case against a GOP gerrymander in Wisconsin called Gill v. Whitford. These two cases could thus both reach a resolution sometime next year. However, while plaintiffs in both cases have carefully calibrated their arguments to appeal to Kennedy, they’re each taking distinct approaches. 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.
Journalists and academics have devoted considerable attention to statistical measures of gerrymandering, particularly the “efficiency gap.” As we’ve previously explained, this test plays a major role supporting the plaintiffs’ argument in Whitford that partisan gerrymandering violates their rights under the First and 14th amendments. A key aspect of their case is that courts should intervene if there have been multiple elections that demonstrate the durability of the gerrymander in question.
By contrast, the plaintiffs in Benisek are relying strictly on the First Amendment to argue that partisan gerrymanders violate voters’ rights to freedom of association by illegally retaliating against them based on their partisan affiliation. This case is tailored toward Kennedy’s own ruling in Vieth, where he 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 the 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 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. Furthermore, the Benisek standard could make it too difficult to challenge districts that have been gerrymandered for decades, rather than one that mapmakers just recently flipped from blue to red.
Nevertheless, back in August, a three-judge court panel at the lower level ruled against the challengers, holding that the plaintiffs hadn’t demonstrated that the election results occurred simply because of the redrawn districts. It’s also far from clear that the Supreme Court would reach a different result, but the very fact that they’ve chosen to hear this case is notable, since the justices only agree to adjudicate around 1 to 2 percent of the cases brought before them.
And it'll also be a while before we get a handle on the main significance of the court taking up this case while the Whitford challenge also goes forward. It could be that Kennedy prefers a strictly First Amendment-based standard like the one the Benisek plaintiffs propose. It could also signal that the high court simply wants to strike down a gerrymander from both parties to demonstrate the bipartisan nature of this problem. Nevertheless, it’s an encouraging sign for proponents of fairer elections that the Supreme Court is so keen on hearing these challenges to partisan gerrymandering while Kennedy is still on the bench, since future Republican appointees likely won’t be so amenable to policing partisan gerrymandering.