Gerrymandering, Two Constitutional Arguments, and a Remedy

by Neil H. Buchanan

Earlier this week, the Supreme Court heard oral arguments on its second gerrymandering case of the term, Benisek v. Lamone, which presents a challenge to the Maryland legislature's redrawing of one of that state's congressional districts.  As in all such cases, there seems little doubt that gerrymandering happened.  The Court simply cannot agree on what to do about it, if anything.

Benisek differs from the Court's other gerrymandering case in important ways, the most obvious of which is that Gill v. Whitford involves a challenge to an extreme Republican gerrymander of the Wisconsin legislative map, whereas the Maryland case involved a Democratic gerrymander.  As I will discuss below, the cases make it clearer than ever that legislative districts should no longer be drawn by partisans on either side.

But first, it is useful to discuss the fear about public perceptions that might be driving the Court's thinking.

If, as some commentators have surmised, the Court's decision to take on this second case was a matter of optics, allowing the court to avoid the appearance of partisanship by simultaneously considering both Democratic and Republican chicanery, then it seems to be working, with a Washington Post headline blaring: "Maryland’s redistricting case reminds us: Both parties gerrymander. A lot."

Similarly, another Post writer argues: "Maryland’s case provides a bit of counterprogramming to the national image of partisan gerrymandering as a Republican sport.  The party simply has more chances to show its stuff: The 2010 election put Republicans in sole control of the redistricting in 21 states following the ­once-a-decade census."  See, it can all be explained as a matter of opportunity, not that one party is more guilty than the other!  Does that not make you feel better?  Nothing to worry about here, so we can all go back to sleep.

This conveniently ignores the fact that Texas Republicans broke with long-established practice more than a decade ago by redrawing their state's congressional districts without bothering to wait for the next census.  No one would claim that Democrats are as pure as the driven snow, but Republicans are clearly -- on this as on so many other issues -- willing to play dirtier than the other side.

In any case, the Court now has received the spin that it might have wanted, allowing it to avoid Chief Justice Roberts's concern about the "very serious harm to the status and integrity of the decisions of this court in the eyes of the country" if the Court has to choose winners and losers in contests between Democrats and Republicans.  That is fine as far as it goes, but of course the larger concern is that the Court might simply default back to its attitude of leaving politics to the political branches.

And that belief -- that the Court should stay out of the gerrymandering debate in order to avoid being seen as "political" -- is the fundamental, catastrophic error that has caused us to reach this point.  It is simply illogical for a court to be presented with a case claiming that the political process is broken and to respond, "Not our concern.  If there is a problem with the political process, the political process will fix it."

The Court does not hesitate to say that the political branches might not be trusted on other matters, stepping in to say that a legislature has violated free speech rights, or exceeded its regulatory authority, or prevented someone from having a gun in his home for personal protection.  Yet as soon as we put the label politics on a case, the Court runs for cover.  If we are worried about majorities trampling minority rights in other areas, why are legislative districting challenges disfavored by the Court?

One answer seems to be that the Court has not found a constitutional theory on which a gerrymandering decision could be based.  New York Times columnist Linda Greenhouse -- usually, though not always, a voice for sanity on legal matters -- wrote in January that the Maryland case is more promising than the Wisconsin case because of the differing constitutional hooks that the two cases rely upon.

Greenhouse describes the very straightforward Equal Protection claim in the Wisconsin case, noting that in the election cycle immediately following the gerrymander, "Republicans won only a minority of the statewide vote but captured 60 of the 99 seats; the new lines corralled Democratic voters into some districts and scattered them among others, where they were doomed to be ineffectual in electing their preferred candidates."

This, however, might not be as promising as it seems, because Greenhouse reminds us that "the Supreme Court’s election law precedents, stemming from an earlier era when the court’s focus was on racially discriminatory election practices, are distinctly unfavorable to statewide challenges based on equal protection violations in particular districts."

I can believe that Greenhouse is accurately describing the state of play, although I must say that any justice who would rely on that excuse would almost certainly find some other excuse not to take action.  If a justice cannot or will not see the similarity between race-based challenges and other gerrymandering challenges, then their vote is lost in any event.

Even so, Greenhouse lauds the Maryland case not only because it is a district-specific challenge but because it is based on a theory that Justice Kennedy -- surely the swing vote on these cases -- has offered in dicta in the past.  Rather than an Equal Protection claim, the case is based on the First Amendment's guarantee of free speech and association.  "The theory is that the Democratic power brokers dismantled the old Sixth District in retaliation for its voters’ support of their incumbent Republican representative."

Similarly, the Post's Robert Barnes explains that "Kennedy in the past has wondered whether partisan gerrymandering should be seen as retaliation against voters based on their political affiliations.  [The Republican voter]’s brief offers just that: 'What happened in Maryland’s Sixth District in 2011 — and what is sure to happen all over the nation in 2021 absent this court’s intervention — is a clear violation of the First Amendment, which forbids states from disfavoring citizens on the basis of their political views.'"

I trust Greenhouse and Barnes when they tell us what might or might not find favor with Justice Kennedy,  I do, however, have to take a moment to say that this argument proves far too much.  Any districting map is going to disfavor people who vote for the losing candidate in their district.  Are Democratic lawmakers required to make sure that Republican voters always win?  Or maybe they are required not to be aware that there are Republican voters who will be unhappy?  If being put into losing districts is seen as states "disfavoring citizens on the basis of their political views," would anything not be a First Amendment violation?

Again, Kennedy apparently likes this argument, so I understand why litigators and commentators would focus on it.  But it does seem odd that the argument essentially echoes the Wisconsin challengers' theory that gerrymandering can be statistically identified when there is an excess of "wasted votes."  That is, if one is concerned about "disfavoring citizens based on their political views," then the most obvious way to proceed is to figure out which districting maps disfavor the most people.

Chief Justice Roberts rejected that statistical approach as "sociological gobbledygook" and claimed that "the intelligent man on the street is going to say that’s a bunch of baloney."  Deciding that a state has disfavored too many people by putting them in districts where they will lose requires statistical analysis, but the Court apparently does not do statistics.

If Kennedy signs on with the plaintiffs in the Maryland case but not the Wisconsin case, therefore, it is not at all obvious how legislators should understand what has been disallowed.

Which finally brings us to the question of remedies.  These cases ultimately will require a response to Kennedy's concern about line-drawing.  The Wisconsin case was promising because the plaintiffs claimed to have a principled method of saying when enough has become too much.  In the Maryland case, the state's brief noted that the plaintiffs there did not offer a way for courts to "determine when partisan considerations in the redistricting process have 'gone too far.' ... By dodging the problem, the plaintiffs’ proposed standard threatens to render any partisan motive fatal to redistricting — something that this court has already rejected."

All of which means that, even if Kennedy likes the First Amendment argument better than the Equal Protection argument, he will still end up where he was before.  He will thus have to pretend that there is nothing that can be done, or he will have to reconsider the "something that this court has already rejected," that is, that partisanship itself should be prohibited in redistricting.

The Court could hold that the very existence of partisanship in drawing district lines presents an unacceptable risk of harm to voters (under either constitutional test on offer).  That would mean that the only way for districts to be drawn without fear of partisanship would be -- wait for it -- to remove partisanship from the drawing of districts.

The Court could (and should) say that the issue is a matter of fiercely guarding the rights of all citizens to be able to vote in fair elections, and when the partisans who will be running in those elections are able to draw the lines, there is too much risk of constitutional harm.

This has the advantage of not requiring either line-drawing or gobbledygook. It also has the advantage of not being new.  Some states have voluntarily adopted nonpartisan methods to draw legislative lines.  The Court should now say that there is no other way to be sure that partisanship will not harm voters.