Partisan Gerrymandering is Back at SCOTUS

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.

Last term in Gill v. Whitford the Supreme Court again failed to articulate a standard for unconstitutional partisan gerrymandering. Instead, it held that the challengers failed to demonstrate they had standing to bring their case.

The Supreme Court has agreed to hear two partisan gerrymandering cases this term.

In Rucho v. Common Cause the Court will get another chance to weigh in on standing and what the standard should be. It also may decide whether the North Carolina legislature engaged in unconstitutional partisan gerrymandering.

Following the 2016 election, Republicans held 76.9% of the seats in North Carolina’s thirteen-seat congressional delegation but North Carolina voters cast only 53.22% of their votes for Republican candidates. One of the redistricting criteria was for Republicans to maintain a partisan advantage.

In January 2018 a three-judge panel struck down North Carolina’s 2016 redistricting plan concluding it was an unconstitutional partisan gerrymander in violation of the U.S. Constitution’s Equal Protection Clause, First Amendment, and two sections of Article I.

Last summer the Supreme Court asked the three-judge panel to reconsider the January 2018 decision in light of Gill v. Whitford. In a 300 plus page opinion issued in August 2018 the three-judge panel covered much of the same ground as in the January 2018 opinion (described in detail here). Most significantly the panel found that the challengers in this case have standing to bring all their claims. 

According to the three-judge panel this case was different than Gill because, for example, in Gill one of the challengers admitted that he didn’t live in a “packed” or “cracked” district. But in Rucho the panel found that challengers “who reside and vote in each of the thirteen challenged congressional districts testified to, introduced evidence to support, and, in all but one case, ultimately proved the type of dilutionary injury the Supreme Court recognized in Gill.

According to the defenders of the plan the Supreme Court should find no standing in Rucho because it “suffers from the same basic flaw [as Gill], as it too has always been an effort to vindicate a generalized preference to see more Democrats from North Carolina elected to Congress. Indeed, to use plaintiffs’ own words, ‘[t]his case has always been about good government,’ not about a violation of an individual right to have his or her vote be given full, undiluted effect.”

If the Supreme Court finds no standing in this case as it did in Gill the Court will not address the other questions in this case namely what is the proper standard for deciding if a partisan gerrymander goes too far and whether an unconstitutional partisan gerrymander occurred in this case.

Standing isn’t an issue in Benisek v. Lamone as this case involves a challenge to only one legislative district, not an entire redistricting plan. 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. Maryland Governor O’Malley “testifed explicitly that he wanted to use the redistricting process to change the overall composition of Maryland’s congressional delegation to [reduce the number of Republican districts].”

A number of Sixth District Republicans sued alleging the state legislature engaged in unconstitutional partisan gerrymandering in violation of the First Amendment. In June 2018 the Supreme Court agreed that a district court should not have issued a preliminary injunction against the state legislature in this case, mostly for timing reasons. In November 2018 a three-judge panel issued a permanent injunction requiring the state legislature to make changes to the Sixth District.

The three-judge panel issued three opinions. Judge Niemeyer, joined by Judge Russell, concluded that the drawing of lines for the Sixth District violated the challengers’ First Amendment representational and associational rights. Judge Bredar, joined by Judge Russell, rejected the representational rights theory while “embracing much of the associational rights theory.” Judge Russell wrote that challengers won under either Judge Niemeyer’s or Judge Bredar’s theory.

Maryland urges the Supreme Court to reject any and all of the standards employed in the three-judge panel’s two majority opinions. According to Maryland, the theories “do not amount to a ‘limited and precise test’ for adjudicating partisan-gerrymandering claims, primarily because, however one parses their contradictory analyses, they insist on proscribing activity that this Court has repeatedly held to be permissible.”