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Steven K. Fedder: Did justices punt on political gerrymandering?

Steven K. Fedder

Steven K. Fedder

Politicians of all stripes had been waiting for the Supreme Court to decide two cases involving political gerrymandering – one by the Democrats and one by the Republicans.  On June 18, the Court ruled, but disappointed nearly everyone by failing to rule on the substance of either claim.  In Benisek v. Lamone, the court, in a unanimous per curium opinion, affirmed the decision of a three-judge panel of United States District Court for the District of Maryland denying the plaintiff’s motion for a preliminary injunction, and staying further proceedings pending the Supreme Court’s decision in Gill v. Whitford – a case challenging partisan gerrymandering by the Republican-controlled Wisconsin legislature.  In Gill, the federal district court sitting in Wisconsin struck down the state’s legislative map, but the Supreme Court vacated that judgment and remanded the case for further proceedings.

The immediate result of both June 18 decisions is that Maryland’s 6th Congressional District, as redrawn by the Democratic legislature, remains as drawn, as do the Wisconsin congressional districts – at least for the 2018 midterm elections.

In the Maryland case, the plaintiffs, Republican voters, alleged that the 6th Congressional District was unconstitutionally gerrymandered for the purpose of retaliating against them for their political views. Maryland’s congressional districts were redrawn in 2011 as a result of the 2010 census.  Plaintiffs filed suit in 2013 challenging the composition of the new districts. However, they did not seek a preliminary injunction to require that the maps be redrawn until May 2017.

The Supreme Court, citing the standards for the grant of a preliminary injunction, found that “appellants did not move for a preliminary injunction in the District Court until six years, and three general elections, after the 2011 map was adopted, and over three years after the plaintiffs’ first complaint was filed.” Thus, the court held that “plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.”

Finally, the court observed that the timetable proposed for redrawing the map would “have worked a needlessly ‘chaotic and disruptive effect upon the electoral process.’” Thus, the court affirmed the District Court’s denial of the request for preliminary injunction, without ruling on the ultimate issue of whether gerrymandering for political purposes is violative of the First Amendment.

‘Packing’ and ‘cracking’

On to Wisconsin, where the plaintiffs claimed that the post-2010 census redistricting passed by the Republican-controlled legislature violated their rights under the First and Fourteenth Amendments to the Constitution by diluting their voting power based on their political beliefs, and unreasonably burdening their rights of association and free speech.

In striking down the Wisconsin redistricting plan, the three-judge panel of the District Court found a discriminating purpose, namely that the legislature actually intended to dilute the votes of Democratic voters. The evidence at trial showed that the drafters of the bill created spreadsheets showing “safe” Republican seats, “lean” Republican seats, “swing” seats, “safe” Democratic seats and “lean” Democratic seats.

By “cracking” and “packing” legislative districts, the Republicans were able to “pack” Democratic voters into “safe” districts and “crack” other districts so that Democratic voters were distributed among other districts that made it unlikely that a Democratic candidate could be elected.  Using this technique, the Republicans were able to increase their number of “safe” seats  by decreasing the number of “swing” districts. This intent was found to have effectively allowed a minority of voters to control both houses of the Wisconsin Assembly.

No particularized showing

Once again, the Supreme Court avoided ruling on the substantive issue of partisan gerrymandering, instead ruling that there was insufficient evidence presented by the plaintiffs that they had standing under Article III of the Constitution to challenge the law. The court held that in order to state a claim, a plaintiff must assert a particularized showing that the redistricting impaired their individual voting rights. In other words, to establish a justiciable claim, the plaintiffs would have to prove that by either “packing” or “cracking,” their right to effectively participate in the election of representatives in the district in which they voted was compromised. The court found that there was no evidence offered at trial to show that any of the plaintiffs’ individual rights were affected and that it was not enough to show that the map as a whole changed the electoral balance.

Chief Justice Roberts delivered the opinion of the court, vacating the judgment of the district court and remanding the case to the district court for further proceedings consistent with the opinion.  Justice Elena Kagan, with whom Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor filed a concurring opinion, agreed with the chief justice that there had been no individualized showing of harm to establish standing but also suggested that the plaintiffs on remand argue additional harm resulting from partisan gerrymandering. Justice Thomas, with whom Justice Gorsuch joined, agreed with Parts I and II of the majority opinion but dissented from the court’s decision to remand. Thomas complained that the majority’s decision to remand was out of the ordinary and that the case should have been remanded with instructions to dismiss.

On remand, it is likely  that the plaintiffs will be able to prove sufficient facts to establish Article III standing. It is also likely that the district court will find the “packing” and “cracking” employed by the Wisconsin legislature to be unconstitutional. It is harder to predict what the Supreme Court will do when the case comes back to it, but it is interesting that Roberts, Alito, Kennedy, Kagan, Breyer, Ginsburg and Sotomayor all chose not to end the case with a dismissal.

Stay tuned.

Steven K. Fedder of Fedder & Janofsky LLC is a trial lawyer who practices in state and federal courts and can be reached at sfedder@mdcounsel.com.