Argument preview: Justices to tackle partisan gerrymandering … again

Editor’s Note: An earlier version of this post ran on February 4, 2019, as an introduction to this blog’s symposium on Rucho v. Common Cause and Lamone v. Benisek, as well as at Howe on the Court, where it was originally published.

Every 10 years, the federal government conducts a census. The states then use the data from the census to draw new maps for their state legislatures and federal congressional districts. The maps often take politics into account – for example, to protect incumbents. But next Tuesday, the Supreme Court will hear oral argument on whether state officials can go too far, so that they actually violate the Constitution, when they draw maps that favor one political party at another’s expense. And with the retirement last year of Justice Anthony Kennedy, the justices could be poised to rule that this issue – known as partisan gerrymandering – is one that the courts should leave to politicians and the political process.

When the justices take the bench for oral arguments on March 26, the questions before them will be both familiar and very difficult. In 2004, when the Supreme Court reviewed a partisan-gerrymandering challenge to Pennsylvania’s redistricting plan, the justices were deeply divided: The court’s four more conservative justices believed that courts should stay out of partisan-gerrymandering claims, because it is too hard to come up with a manageable test to determine when politics plays too influential a role in redistricting, while their more liberal colleagues would have allowed courts to review partisan-gerrymandering claims. Justice Anthony Kennedy, who has since retired, agreed with his more conservative colleagues that the Supreme Court should stay out of the Pennsylvania case, but he left open the possibility that courts could have a role in reviewing partisan-gerrymandering cases in the future if a workable standard could be found.

During the court’s 2017-2018 term, it seemed as though the justices might finally decide the partisan-gerrymandering question once and for all, in a challenge to the redistricting plan that Wisconsin’s Republican-controlled legislature drew for the state’s general assembly in 2011. With the new map, Republicans in 2012 won 48.6 percent of the statewide vote, but 60 of the 99 seats in the general assembly; two years later, Republicans won 52 percent of the statewide vote and 63 seats.

The Wisconsin voters challenging the new plan argued that the Republican legislature had engaged in partisan gerrymandering in two different ways: It had both “cracked” Democratic voters – that is, divided them up into multiple districts, so that they wouldn’t have a majority in any of them — and “packed” them – that is, concentrated them in a small number of districts, where they would win by large margins.

A federal district court agreed with the plaintiffs that the 2011 map violated the Constitution, and it ordered the state to draw a new map for future elections. In 2017, the Supreme Court put that ruling on hold and agreed to weigh in.

At the oral argument in October 2017, the justices focused primarily on two closely related questions: Should courts get involved in reviewing partisan-gerrymandering cases at all, and, if so, what test should they use to review such claims?

Chief Justice John Roberts suggested that courts should not review partisan-gerrymandering cases at all, to preserve the institutional reputation of the judiciary. For example, if the Supreme Court were to rule for the Democratic plaintiffs in a case alleging partisan gerrymandering by Republicans, he argued, the public would not necessarily understand the nuances of the court’s decision; the takeaway would be that the court had ruled against the Republicans and for the Democrats.

Roberts and Justice Samuel Alito were also skeptical about the standards that the challengers proposed for evaluating partisan-gerrymandering claims, with Roberts calling them “sociological gobbledygook,” while Justice Elena Kagan was concerned about the possibility that courts would be flooded with partisan-gerrymandering claims in the future.

Some court-watchers thought that the justices might try to resolve the Wisconsin case quickly, to allow a new map to be drawn as soon as possible. But two months later, the justices announced that they would take on another partisan-gerrymandering case – this time, a challenge brought by Republican voters challenging a single federal congressional district in Maryland. These voters contend that when Democratic election officials drew new district boundaries after the 2010 census, the officials only had to tweak the existing district by about 11,000 votes. But the map-makers instead removed approximately 66,000 Republican voters from the district and added 24,000 Democratic voters. This meant that although the incumbent at the time, Republican Roscoe Bartlett, had won re-election by a margin of 28 percent in 2010, in 2012 he lost to a Democrat, John Delaney, by a margin of 21 percent. The challengers assert that the election officials made the shift to retaliate against them for their support of Republicans – a violation of the First Amendment’s guarantee of free speech and association.

After hearing oral argument in these two partisan-gerrymandering challenges, the justices decided both cases without ruling on the merits of the challengers’ claims. In June, the justices unanimously agreed to send the Wisconsin case back to the lower court, explaining that the plaintiffs in that case had not shown that they had a legal right, known as standing, to challenge the statewide map. In a decision by Roberts, the court emphasized that the plaintiffs were alleging that their votes had been packed or cracked, a claim that depends on the boundaries of each plaintiff’s own district. And the remedy for the harm from packing or cracking, Roberts continued, would be to redraw an individual district – not necessarily the whole map.

The justices also issued a brief, unsigned opinion in the Maryland case in which they stressed that the dispute was still in its early stages: It was an appeal from the district court’s denial of the plaintiffs’ request to block Maryland from holding elections using the 2011 map while the court weighed the constitutionality of the map. As a result, the justices reasoned, the Supreme Court was reviewing the district court’s decision under a lenient standard: The question before the justices wasn’t whether the district court’s decision was wrong, but whether it was so wrong that it was unreasonable. And in the Maryland case it was not unreasonable, the justices explained. In particular, the plaintiffs did not ask the district court to bar the state from using the 2011 map until 2017 – six years after the map was adopted, and three years after the plaintiffs first challenged the district. Moreover, the justices added, it made sense for the district court to hold off on ruling on the challengers’ claims when it knew that the Supreme Court would be issuing a decision in the Wisconsin case that could provide guidance for the Maryland case.

The Maryland case went back to the district court, which held a hearing in October 2018. In November 2018, the district court ruled for the plaintiffs and ordered the state to draw a new map for the 2020 election. The state appealed to the Supreme Court, which announced in January that it would review the case, Lamone v. Benisek, in March.

Defending the district, Democratic election officials describe the state’s 2011 map as “the culmination of a months-long process of drafting work” that tried to achieve a variety of goals, including eliminating a district that spanned both shores of the Chesapeake Bay and keeping two majority-black districts. They agree with the challengers that partisan gerrymandering “poses a threat to democracy” and concede that the Supreme Court “can and should determine a manageable standard” to ferret out unconstitutional partisan gerrymandering. Such a standard is appropriate, they say, when one party tries to lock in power even though it does not have broad support. But that is not the case here, they argue: Democrats have controlled both houses of the Maryland legislature for nearly a century, and the 2011 plan was created with input from residents around the state.

The First Amendment retaliation approach that the district court used is, the election officials contend, not the kind of “clear, manageable, politically neutral, reliably fair, and precise” standard that the Supreme Court has suggested would be essential to deciding partisan gerrymandering claims. The test adopted by the district court in the Maryland case, they assert, does not resolve what they describe as the “central problem” for courts confronting partisan-gerrymandering claims: “determining when the redistricting process” “has gone too far.” The district court’s opinion, they contend, would bar any consideration of party affiliation, even though the Supreme Court has specifically upheld maps that did consider that factor. The First Amendment retaliation doctrine would also rest on the idea that members of a political party are retaliating whenever they act to further their own goals over those of the opposition party – which would sweep in almost everything that legislators do. Moreover, they add, the district court’s test would require courts to use the existing map as a baseline, but there is nothing magical, from a constitutional perspective, about the previous map, which also presumably took party affiliation into consideration when it was drawn.

The plaintiffs in the Maryland case counter that, although challenges to partisan gerrymandering “are likely to have political consequences,” those consequences do not insulate them from judicial review: Courts can and often do review the kinds of claims that the plaintiffs have made in their challenge to the 6th congressional district. There are three elements of a First Amendment retaliation claim, the plaintiffs contend. The first is whether the state considered voters’ political beliefs when it decided where to draw the district lines, and whether it did so to burden those citizens’ political beliefs. The second is whether the map diluted the citizens’ votes, and the third is, if so, whether there is another legitimate explanation for these effects. The only real question, the plaintiffs continue, is whether the second element is one that courts can properly consider, which “it plainly is.”

The plaintiffs push back against the state officials’ argument that the district court’s test would sweep in virtually everything that legislatures do. The state officials misunderstand the theory, the plaintiffs assert: Legislators can promote general policies that they want to enact, even if their opponents disagree with the policies, but they can’t “target particular groups of private citizens for disfavored treatment on the basis of those citizens’ political views, including past voting history.”

The plaintiffs do not mince words in their plea to the justices for action. They describe partisan gerrymandering as a practice whose “purpose is to reduce the franchise to a charade—a meaningless exercise, the outcome of which is preordained by computer scientists and political consultants turned cartographers.” “If this Court does not take the opportunity,” they warn, “to condemn political gerrymandering as the First Amendment violation that it is, it will be giving a green light to lawmakers across the country to engage in gerrymandering in 2020 like never before. It will make the 2010 cycle look like child’s play.”

The Maryland case is not the only partisan-gerrymandering case slated for oral argument on March 26. In Rucho v. Common Cause, the justices will also consider a challenge to North Carolina’s federal congressional map, adopted by the state’s Republican-controlled legislature. The map is the second one drawn since the 2010 census: In 2016, a federal district court struck down the 2011 map, ruling that two districts were unconstitutional racial gerrymanders. The legislature went back to the drawing board and came up with the current map.

But in January 2018, a federal district court invalidated the 2016 map as well, holding that it was an unconstitutional partisan gerrymander, and ordered the state to draw a new one. The state’s Republican legislators went to the Supreme Court, which sent the case back to the lower court for reconsideration in light of the Supreme Court’s decision in the Wisconsin case.

A few months later, however, the district court again invalidated North Carolina’s 2016 congressional map, ruling first that the challengers do have standing and then that the map was the product of partisan gerrymandering; the lower court blocked the state from using the map after November 2018.

North Carolina Republicans returned to the Supreme Court, where redistricting cases are among a narrow set of cases with an automatic right to appeal. They push back first against the district court’s ruling that the plaintiffs in this case have standing. They contend that the plaintiffs don’t have the kind of specific injuries that would even allow them to go to court. Instead, the Republican legislators argue, the plaintiffs are simply trying “to vindicate a generalized preference to see more Democrats from North Carolina elected to Congress.” Indeed, they note, one of the plaintiffs even explained that the “problem with the districts is that the number of Republicans elected is not proportional to the vote that Republicans receive in statewide elections.” But a voter cannot go to court just because there is not proportional representation in his state; if anyone is injured from lack of proportional representation, the legislators observe, it would be a member of Congress.

And in any event, the legislators continue, partisan gerrymandering is simply not justiciable – that is, the kind of dispute that courts can consider. Indeed, they point out, the Constitution gives primary responsibility for redistricting to state legislatures, supervised by Congress – two politically accountable institutions. The legislators suggest that the lack of a workable standard to review partisan-gerrymandering claims is not surprising, because the injuries allegedly suffered by plaintiffs like the ones in the North Carolina case are merely “generalized political grievances,” rather than specific injuries. Trying to formulate more manageable standards, they argue, would be “an exercise in futility.”

Faced with this difficulty, the legislators contend, the district court gave up “trying to decide ‘how much is too much’” partisan influence in redistricting and instead “declared partisan gerrymandering categorically inconsistent with the Constitution.” But that view conflicts with both the Supreme Court’s earlier cases – which have repeatedly recognized that “some degree of partisanship” can play a role in redistricting – and the Constitution itself, which explicitly gives state legislatures the power to draw federal congressional districts and authorizes Congress to change those districts.

Even if the Supreme Court were to provide a workable test for partisan gerrymandering, the legislators concluded, the 2016 map would still be constitutional, because the map “adopted traditional districting criteria and conforms with such criteria to a degree not seen in the jurisdiction for a quarter century.” In fact, the legislators, point out, “after years of maps that split anywhere from 21 to 44 counties and upwards of 77 precincts,” the 2016 map “divides only 13 counties and splits only 12 precincts.”

The plaintiffs urge the justices to uphold the decision below, arguing that the district court concluded that the plaintiffs had a right to sue after it “scrupulously followed” the roadmap that the justices outlined in the Wisconsin case. In particular, the plaintiffs note, the plaintiffs are challenging only their own districts, showing that those districts were packed or cracked and, as a result, their votes were diluted. The plaintiffs point out that they have also shown that their First Amendment rights of speech and association were injured – for example, because the 2016 map “decreased [their] ability to mobilize their party’s base, persuade independent voters to participate, attract volunteers, raise money, and recruit candidates.” Those injuries are not specific to any particular district, the plaintiffs explain, because members of one party will participate in activities throughout an area or even the state: “Democrats from Asheville fundraise for candidates in Fayetteville; Democrats from Raleigh conduct voter outreach in Charlotte; and the Party itself does these things statewide.”

Turning to the question whether partisan-gerrymandering claims are justiciable, the plaintiffs reject the legislators’ contention that the Constitution delegates issues relating to redistricting only to the states, with Congress as a backstop. “The vanishingly unlikely prospect of congressional intervention” to address partisan gerrymandering “does not,” the plaintiffs stress, “release courts from their independent obligation to enforce the Constitution.” “And far from endorsing partisan gerrymandering,” the plaintiffs add, “the Framers would have been appalled by” partisan gerrymandering.

The plaintiffs emphasize that the relevant question for the justices is not whether courts should ever consider partisan-gerrymandering cases, but instead whether this case is one that courts can consider. Indeed, the plaintiffs observe, the Supreme Court “has repeatedly rejected” the idea that courts should stay out of partisan gerrymandering – which makes sense given that courts regularly consider claims of racial gerrymandering, which is caused by the same kind of behavior by election officials and requires courts to conduct the same kind of analyses. Moreover, nothing bars legislatures from considering politics or party affiliation when they draw new maps, and in fact the Supreme Court has said that they can consider those factors – for example, so that two incumbents don’t have to run against each other under a new map. “It may be impossible for legislators to make districting decisions without considering the political consequences of their actions,” the plaintiffs acknowledge. “But,” they continue, “that does not entitle legislators to make such decisions for the purpose of harming a disfavored political group.”

Finally, the plaintiffs conclude, “no matter how the broader issue of” whether courts should generally review partisan-gerrymandering claims is resolved, this is such an easy case that the 2016 plan cannot stand. North Carolina Republicans had an “official state policy to maximize” their party’s representation in Congress, and under the plan Republicans in 2016 won 10 out of the state’s 13 congressional seats “even though the statewide vote was nearly tied” – “the worst partisan asymmetry” in the United States that year, and the “most overt partisan gerrymander this Court has ever seen.”

When the justices announced in January that they would take up the Maryland and North Carolina cases, they took the somewhat unusual step of indicating that the two cases would be scheduled for oral argument in March – eliminating any doubt about whether the cases might instead be placed on the court’s April calendar. There’s no way to know for sure, but the justices may have wanted to ensure that they would have as much time as possible between oral argument and their summer recess to decide the cases: Although the issues are familiar to at least eight of the nine current justices, they are also (as last term’s oral arguments demonstrated) difficult and controversial, with potentially historic significance.