One Wednesday, a three-judge federal panel ruled two-to-one that a lawsuit brought by Republican voters against Maryland’s Democratic-drawn congressional map on First Amendment grounds can proceed to adjudication. The case, Shapiro v. McManus, could set the stage for a national precedent restricting partisan gerrymandering if it makes its way to the Supreme Court, as seems likely. Although this lawsuit opposes a Democratic map, a Supreme Court ruling against Maryland would nonetheless be excellent news for both Democrats and democracy because of how widespread Republican gerrymandering is nationwide.
Shapiro is especially important because of how it tries to contest partisan gerrymandering by identifying a harm to voters’ First Amendment rights. A 2004 Supreme Court case, Vieth v. Jubelirer, previously held that partisan gerrymandering could potentially be unconstitutional. But in that decision, Justice Anthony Kennedy refused to strike down the particular maps at issue for lack of a manageable legal standard to determine when exactly the use of partisanship crosses the line to harm constitutional rights. Shapiro and a pair of related cases in Wisconsin and North Carolina seek to test that notion by supplying a standard that might be judicially manageable.
This case shows just how paramount it is for Democrats to win the presidency and regain the Senate in 2016. Should they do so, they could appoint a fifth liberal-leaning justice by the time any appeals of these three cases reach the Supreme Court, making Kennedy’s wavering moot. And even with Kennedy, the court could set new standards against partisan gerrymandering.
Such a ruling could have enormous effects, since 55 percent of congressional districts are currently drawn to favor Republicans while just 10 percent were designed for Democrats—particularly when the current partisan and institutional balance of power significantly constrains anti-gerrymandering efforts at the legislative level.
