partisan gerrymandering

In 1986 a majority of the Supreme Court agreed that partisan gerrymandering may be unconstitutional in certain circumstances. But in that case and since then the Court has failed to agree on a standard for when partisan gerrymandering crosses the line. In Gill v. Whitford and Benisek v. Lamone the Supreme Court again declined to adopt a standard for what constitutes an unconstitutional partisan gerrymander.

In Gill the Court concluded that the gerrymandering challengers failed to demonstrate they had standing to bring their lawsuit. In Benisek the Court allowed Maryland’s redistricting plan to go into effect because, among other reasons, the challengers were too delayed in bringing their lawsuit.  

The challengers to the redistricting of Maryland’s Sixth Congressional District just might win—if the Supreme Court actually decides their case.

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

The U.S. Supreme Court has refused to block the Pennsylvania Supreme Court’s ruling that the state’s 2011 Congressional redistricting plan constitutes an unconstitutional partisan gerrymander. This is the fourth court in a relatively short period of time to rule that partisan gerrymandering may be unconstitutional. The U.S. Supreme Court is reviewing two of those decisions, one from Wisconsin and the other from Maryland, this term.

In ealry January a three-judge federal court struck down North Carolina’s 2016 Congressional redistricting plan concluding it was an unconstitutional partisan gerrymander designed to favor Republican candidates. Meanwhile the Supreme Court has agreed to decide two cases this term involving the question of whether and when partisan gerrymandering is unconstitutional. Read more about the North Carolina case and the lower court ruling here.

The federal court ordered the state legislature to come up with a new plan by January 24. The Supreme Court put that order on hold allowing the Republican legislators defending the plan to appeal to the Supreme Court.

What if a state legislature engages in intentional partisan gerrymandering but it doesn’t work or might not work in the future? Has it violated the First Amendment?

In Benisek v. Lamone in 2011 the Maryland legislature needed to move about 10,000 voters out of the Sixth Congressional District to comply with “one-person one-vote.” It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders in the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.

Following the redistricting Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But two years later in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. Two years after that Republican Larry Hogan won the Sixth District beating his rival by 14 percent.

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