Supreme Court Decides Three-Judge Court Redistricting Case

In Shapiro v. McManus the Supreme Court held unanimously that a three-judge court must be convened to decide a constitutional challenge to a redistricting plan even if the judge to which the request was made doesn’t think the challenger will win.  

Stephen Shapiro, dissatisfied with Maryland’s “crazy-quilt gerrymandering,” sued Maryland arguing its congressional redistricting plan violated his First Amendment right of political association. While a plurality of the Supreme Court stated in Vieth v. Jubelirer (2004) that political gerrymandering cases cannot be brought under the Equal Protection Clause, Justice Kennedy, concurring in the same case, suggested such claims may be possible under the First Amendment.  

Per federal law, three judges “shall be convened” to hear challenges to the constitutionality of a congressional or statewide redistricting plan “unless [the judge whom the request for three judges is made] determines that three judges are not required.”

A judge in this case refused to convene a three-judge court reasoning that Shapiro failed to state a claim for which the court could provide relief. The Supreme Court disagreed reasoning that “the mandatory ‘shall’ . . . normally creates an obligation impervious to judicial discretion.”  

Justice Scalia, writing for the Court, reasoned that the “unless [the judge whom the request for three judges is made] determines that three judges are not required” language means that the judge receiving the request for a three-judge court needs to examine the complaint to make sure it alleges a claim regarding whether a district is constitutionally apportioned (even if the claim doesn’t seem particularly winnable).

While the Court has stated that a three-judge court isn’t required for an “insubstantial” constitutional claim, Shapiro’s claim “easily clears [this] low bar” because it is based on Justice Kennedy’s opinion in Vieth. “Whatever ‘wholly insubstantial,’ ‘obviously frivolous,’ etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases.”   

At Election Law Blog Rick Hasen describes three-judge courts as a “fast track” to Supreme Court review noting that half of the election cases the Roberts Court has decided have come to the Court via three-judge courts.