Just a few years ago, Benisek v. Lamone, one of two partisan gerrymandering cases the Supreme Court is considering during its current term, looked like an extraordinarily clever lawsuit. For one thing, it challenges Maryland’s gerrymander — a Democratic state where Democrats drew the congressional maps — and a majority of the Supreme Court is controlled by Republicans. For another, it rests on a fairly modest legal theory, and the Court’s Republicans have historically been very cautious about striking down partisan gerrymanders.
It seemed like the sort of suit that could convince at least one of those Republicans to get over their caution. Yes, it relied on a legal theory that may leave many partisan gerrymanders intact, but a Court that was willing to strike down some gerrymanders seemed a lot better than one that would leave them all intact. The Court will hear oral arguments in Benisek later this month.
A lot changed, however, as Benisek slowly wound its way up to the nation’s highest Court. Among other things, the Court heard oral argument in Gill v. Whitford, a much more comprehensive and ambitious challenge to partisan gerrymanders, and a majority of the justices appeared likely to strike down the Wisconsin gerrymander at issue in Whitford when they heard the case last October.
Compared to Whitford, in other words, the legal arguments advanced by the plaintiffs in Benisek now seem small and inadequate. Worse, Benisek could potentially entrench gerrymanders and prevent lawmakers from acting in good faith to abolish them.
Justice Kennedy’s challenge
Both Whitford and Benisek attempt to solve a puzzle Justice Anthony Kennedy laid out in his 2004 opinion in Vieth v. Jubelirer. In that case, four of Kennedy’s fellow conservatives attempted to foreclose partisan gerrymandering suits altogether. Kennedy’s concurring opinion did not go quite that far, but he did warn that no one had yet come up with a test courts could use to determine which maps are, in fact, partisan gerrymanders.
Nevertheless, Kennedy added that “if workable standards do emerge to measure” the burdens created by gerrymanders, “courts should be prepared to order relief.”
Whitford and Benisek each propose wildly different solutions to this dilemma. Under Whitford, plaintiffs challenging an alleged gerrymander may challenge a state’s entire congressional or state legislative map. Judges then apply a mathematical formula to determine whether that map is likely to be a gerrymander. If the map fails this mathematical test, it is likely to fail under the test proposed in Whitford.
The Benisek plaintiffs, by contrast, offer a much less ambitious challenge to Maryland’s congressional map. Prior to the most recent redistricting, Maryland’s congressional maps were likely to produce 6 Democratic members of Congress and 2 Republicans. Maryland Democrats drew the new maps to add an additional Democratic district — so now there are 7 Democrats and 1 Republican in the state’s House delegation. Nor were the state’s top Democrats especially subtle about what they were up to. Then-Gov. Martin O’Malley (D) stated outright that his goal was to “put more Democrats and Independents into the Sixth District” in order to ensure “the election of another Democrat.”
Yet Benisek does not challenge the entire Maryland congressional map. Instead its plaintiffs limit their challenge to the Sixth District. Thus, even if they prevail, much of Maryland’s existing map may still survive.
Moreover, while Team Whitford tackles gerrymandering head on, Team Benisek does so more obliquely — framing their suit as a claim that Maryland unconstitutionally retaliated against Republicans in the Sixth District. “A State violates the First Amendment,” they write in their brief, “when it deliberately targets citizens for disfavored treatment in a congressional redistricting by reason of those citizens’ support for the opposition political party.”
It’s a canny argument. The Supreme Court’s First Amendment cases cast quite a skeptical eye on state actors who retaliate against private citizens “for the exercise of rights of political association or the expression of political allegiance.” So, by framing gerrymandering as a kind of retaliation, the Benisek plaintiffs suggest that a ruling in their favor would simply be another step on a well-traveled path that the Court has walked many times before.
Yet, while this way of framing gerrymandering makes some strategic sense, it also seems to miss the point. Maryland didn’t seek to rig its Sixth District for Democrats because it wanted to punish individual voters who dared to cast a ballot for Republicans, it did so because the state’s Democratic leaders wanted to send more Democrats to Congress. Maryland’s leaders were indifferent to whether or not Sixth District Republicans felt like their views were represented in Congress. This isn’t really a case about retaliation, it’s a case about political leaders not caring what a minority of their electorate wants.
Benisek‘s retaliation theory, moreover, appears to be fighting the wrong war. Justice Kennedy wrote in his Vieth opinion that gerrymandering allegations “involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views,” and that “under general First Amendment principles those burdens in other contexts are unconstitutional absent a compelling government interest.”
So the Supreme Court’s crucial swing vote already agrees that gerrymanders are dubious under the First Amendment. The challenge Kennedy laid out in Vieth wasn’t “prove to me that gerrymanders are unconstitutional,” it was to show him how to tell the difference between a gerrymandered map and a legal one. Whitford‘s mathematical formula speaks much more directly to this challenge than anything proposed by the Benisek plaintiffs.
Bailing out the other side
Meanwhile, the fact that Benisek calls for challenges to individual districts, rather than to a state’s entire map, could allow the Court’s conservative wing to limit the impact of a Supreme Court decision holding that partisan gerrymanders are unconstitutional.
When plaintiffs challenge a racial gerrymander — that is, when they allege that a state’s maps were drawn to dilute the voting power of people of color — they are only allowed to challenge the specific district or districts that were allegedly drawn to hurt minorities. At oral arguments in Whitford, both Chief Justice John Roberts and Justice Samuel Alito suggested that a similar rule should apply to partisan gerrymanders.
But there happens to be a very good reason why racial gerrymandering suits are treated this way. The premise of a racial gerrymandering case is that a discrete community of racial minorities was denied the opportunity to elect candidates of their choice by maps that weaken their political power. A racial gerrymander, in other words, is an injury to this particular community, and the appropriate remedy is to restore that community’s rightful political power. Voters elsewhere in the state are not from the injured community, so they do not have the same claim that they were injured by the racial gerrymander.
However, partisan gerrymanders are different. The premise of a partisan gerrymandering suit is that one political party drew district lines that were designed to maximize that party’s power in the state as a whole. Maryland Democrats didn’t try to flip the Sixth District in isolation, they sought to produce a statewide map that would elect seven Democrats and only one Republican. Had this map resulted in, say, three Republicans being elected to Congress, Maryland Democrats would have deemed it a failure, even if a Democrat won their newly rejiggered Sixth District.
Thus, a statewide challenge is appropriate in a partisan gerrymandering case because partisan gerrymanders are not just an attack on one discrete community within a state, they are attacks on the state’s voters as a whole.
There are other, practical problems with Benisek‘s suggestion that partisan gerrymanders should be attacked by looking at individual districts in isolation. Indeed, as the legal team behind Whitford points out in an amicus brief they filed in the Benisek case, the Benisek approach to partisan gerrymandering suits could wind up entrenching many existing gerrymanders.
Recall, for a moment, the specific nature of Team Benisek‘s legal claims. They argue that Republicans in Maryland’s Sixth District were unconstitutionally injured because the state drew this district specifically to ensure that it would elect Democrats.
Now imagine that Republicans win a sweeping statewide victory, and decide to use their control of the Maryland state legislature to unrig the states’ maps — that is, to replace the state’s Democratic gerrymander with fair maps that will elect a congressional delegation that reflects the partisan breakdown of the state as a whole. In order to draw such a fair map, Maryland Republicans would need to draw maps that intentionally flipped some of the state’s Democratic districts into Republican districts. Yet the legal theory proposed in Benisek would treat such an effort to fix a partisan gerrymander exactly the same way as an effort to create such a gerrymander.
In both cases, state lawmakers would have to draw districts that intentionally shift influence from the party out-of-power to the party in-power. Thus, Benisek could require courts to strike down maps that seek to undo partisan gerrymanders.
The mathematical formula proposed by the Whitford plaintiffs, by contrast, looks to the fairness of the map as a whole. Thus, a map that was drawn for the very purpose of restoring the appropriate balance to a state would pass the Whitford test.
And there’s another major problem with the rule proposed by Benisek — what happens when a legislature draws new maps that bear “little relation to its previous plan, either because the State gained or lost congressional seats or because the current plan’s drafters used very different criteria than the previous plan’s?” The entire premise of Benisek is that there are Republican voters who lived in Maryland’s Sixth District when it was a Republican district, and who still live in it now that it is a Democratic district — and that these voters were injured by losing their ability to elect a Republican in the district where they’ve cast ballots for years.
But what if, instead of making relatively minor tweaks to the previous map, Maryland Democrats had completely overhauled the state’s congressional districts, dispersing Sixth District voters into four or five new districts, all of which are designed to elect Democrats. Sixth District Republicans would still face the same injury — they were intentionally shunted into Democratic districts — but it is far from clear that the Benisek legal theory contemplates this situation at all. As Team Whitford warns in their amicus brief, “owing to the lack of district continuity in the hypothetical, it would no longer be possible to identify specific seats that flipped from Democratic to Republican control.”
By contrast, the Whitford legal team says that “there is little doubt that Maryland’s current plan would be unconstitutional” under their mathematical test. There is also little doubt that a map that produced the same results with different district lines would also be unconstitutional.
Benisek, in other words, threatens to preserve partisan gerrymanders at the very moment that a majority of the Supreme Court appears to have decided that something must be done to stop them. It offers an easily evaded rule that does not cover many potential gerrymanders. It requires challenges to be brought in a piecemeal and inefficient way. It could potentially hinder legislative efforts to dismantle partisan gerrymanders. And it plays directly into the arguments conservative justices offered to keep gerrymanders alive in Whitford.
As Justice Kennedy made clear in Vieth, he is deeply conflicted about partisan gerrymandering. He almost certainly believes that such gerrymanders violate the Constitution, but he is unsure how much of a role courts should play in dismantling them. Just a few months after Kennedy appeared likely to sign onto the legal theory offered in Whitford, Benisek offers him a chance to return to the mushy middle. It potentially lets him think that he’s doing something to cut back on gerrymandering, while really handing down a decision that could have few implications outside of Maryland.
Once upon a time, when the Supreme Court appeared to have abdicated its responsibility to police partisan gerrymanders, and Benisek was the best shot at appealing to a Republican-dominated Court, the Maryland lawsuit looked inspired. Now, with the Court appearing to be on the cusp of a decision that would severely undercut gerrymanders, Benisek could prove to be a terrible misstep. It gives the justices all the ammunition they need to do nothing, and to look like heroes in the process.