31 August 2016
Over next 12 months or so, the U.S. Supreme Court is likely to get several opportunities to revisit a thorny issue that has resisted resolution for decades: challenges to partisan gerrymanders.
Retired Justice John Paul Stevens in May blamed gerrymandering of congressional and legislative districts as the single biggest reason for the political gridlock paralyzing Congress.
A constitutional amendment is highly unlikely. Reform groups, such as the Campaign Legal Center, Common Cause and the Brennan Center for Justice, are looking to the courts and offering what the Supreme Court has failed to agree upon—tests for judging the constitutionality of these gerrymanders. Three cases are in the pipeline.
"By the time any of three cases is heard in Supreme Court, we should have a full nine-justice panel, and if a Democratic nominee fills the ninth seat, we've got a real opportunity to see real movement," said Mayer Brown's Michael Kimberly, counsel to the challengers in one of the pending cases, Shapiro v. McManus.
Kimberly's case recently cleared a major hurdle when a three-judge federal court held that the case could go to trial on the theory the alleged partisan gerrymander violated the First Amendment.
The Shapiro plaintiffs challenge the congressional redistricting plan enacted by the Democratic-controlled Maryland Legislature after the 2010 census. They contend that Maryland lawmakers deliberately used voters' partisan affiliations and vote histories to flip the Sixth congressional district from a reliably Republican seat to a safe Democratic seat.
This gerrymander, the plaintiffs argue, burdened the speech and association rights of the supporters of a particular political party. It also violated their representational rights under the Constitution's Article I, sections 2 and 4.
The First Amendment theory tracks Justice Anthony Kennedy's concurrence in the high court's most recent partisan gerrymander case, Vieth v. Jubelirer, in which the justice in 2004 suggested that theory as a possible way of policing partisan gerrymanders. However, a plurality held no judicial solution could be found.
"We don’t have any hope of affecting this round of elections but we hope to get a map in place in time for 2018," Kimberly said. His case now goes to discovery and trial.
Kimberly and others contend that the challenge likely to reach the high court first is the Wisconsin case Whitford v. Nichol, also before a three-judge federal court.
Unlike Shapiro, which challenges congressional redistricting, the Whitford plaintiffs confront a 2011 legislative redistricting plan. They contend the plan violated the equal-protection clause and the First Amendment right to freedom of association because it attempted to discriminate against Democratic candidates and voters based on their political beliefs.
A decision in Whitford could come any day, said Ruth Greenwood, senior redistricting counsel with the Campaign Legal Center, which represents the Whitford plaintiffs.
"Our harm is a statewide harm," she said. The challenge does not focus on particular districts.
The challenge's focus is primarily on the equal-protection violation, and it offers courts its own unique test for judging partisan gerrymanders: the efficiency gap.
As Greenwood said, the efficiency gap is a method that places a number on how efficiently voters are distributed for one party or the other, so that every single state house, senate and congressional plan can be compared using a single number, expressed as a percentage. The efficiency gap simply adds up the surplus and lost votes for each party, and compares them to each other.
"The beauty of our test is it can be applied anywhere," she said. "In Wisconsin, we only needed to show the efficiency gap for the House. In other parts of the country, we would need the Senate and pulling together information on congressional districts."
She is optimistic because Kennedy has said that partisan symmetry—balance between the parties in a district map—could be a useful tool.
Whoever loses in Whitford will have a direct appeal to the Supreme Court.
The third pipeline case is Common Cause v. Rucho, a challenge to North Carolina's 2016 congressional redistricting plan.
The current congressional map, according to the plaintiff's counsel, Emmet Bondurant of Atlanta's Bondurant Mixson & Elmore, is all but certain to result in a 10-3 majority for Republicans, despite the fact that in North Carolina at the time the map was enacted, there were 2,634,903 registered Democrats, 1,976,873 registered Republicans, and 1,844,264 unaffiliated registered voters.
The challenge was filed Aug. 5 in the U.S. District Court for the Middle District of North Carolina.
The lawyers in all three cases have been in close coordination, said Mayer Brown's Kimberly. If a decision is announced in the Wisconsin case by mid-September, he said, there will sufficient time to get the case before the justices in the new term.
"Hopefully we'll see a grant of probable jurisdiction in Whitford and the justices will hear argument on what is predominantly an equal-protection approach to the state legislative redistricting issue," he said. "And then in the following term, the Shapiro case will be up on the First Amendment approach to congressional redistricting."
Reprinted with permission from the August 31, 2016 edition of Supreme Court Brief © 2016 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.