The Supreme Court on Wednesday heard its second challenge this term to partisan gerrymanders, this time in a case brought by Republicans. The GOP argument isn’t any better than the Democratic case last fall from Wisconsin, and both argue strongly against judicial intervention.
In Benisek v. Lamone, Republicans in Maryland’s 6th Congressional district contend that the Democratic legislature retaliated against them when redrawing the House map in 2011. Lawmakers lopped off 65,000 GOP voters and packed 30,000 Democrats into the 6th district, which helped Democrat John Delaney in 2012 defeat 10-term GOP Rep. Roscoe Bartlett by 21 points. The new district lines “disrupted and depressed Republican political engagement in the area, and manifestly diminished their opportunity for political success,” the GOP plaintiffs allege, thus violating their First Amendment rights.
The Court has long held that drawing districts inherently implicates political questions. But in Davis v. Bandemer (1986), the Court opened a crevice for judges to review political gerrymanders even though a majority couldn’t agree on a standard for determining how much politics is too much. None has emerged.
While the GOP plaintiffs say any map that has more than a “de minimis” effect on voter engagement and dilution is discriminatory, Justice Ruth Bader Ginsburg asked, “What falls in the de minimis category?” Neither the Constitution nor federal law offers an answer, and lawyers in the case disagree. Judges would identify partisan discrimination when they see it.
Under the plaintiffs’ “de minimis” standard, even redrawn districts that make elections more competitive could be unconstitutional. As Justice Anthony Kennedy mused, natural population shifts could impel a state legislature to redraw a district in a way that dilutes a partisan majority. Would that be retaliation?
Chief Justice John Roberts wondered about independent voters, who often turn elections including in Maryland’s 6th. While Mr. Delaney won by 21 points in 2012, he squeaked by with 1.5% in 2014 when GOP Gov. Larry Hogan carried his district by 14 points. The Maryland Solicitor General noted that independents in 2012 overwhelmingly favored Democrats “because of the views of those voters and the strength of that candidate,” not the district lines.
Justice Stephen Breyer playfully suggested the Court use a blackboard to consider the pros and cons of various theories of discrimination to show that “maybe there are different parts of gerrymandering that rises in different circumstances.” The problem is that there is no precise standard that could possibly account for the multiple factors that affect every redistricting and election.
In the Gill case the Court heard last fall, Democrats advocated a convoluted formula called an “efficiency gap” to measure partisanship. But the efficiency gap varies from election to election as voting shifts on an individual and district level. More than half of all maps drawn in the last 45 years had an efficiency gap in one election greater than the 7% standard that Democrats proposed as a bright illegal line.
Maryland’s map had an efficiency gap of 6.7% in 2012 but exceeded 12% in 2016. So Maryland’s map could have been constitutional in 2012 but struck down four years later under the Gill standard. Establishing an arbitrary standard would invite endless parade of partisan gerrymander challenges, politicizing the judiciary.
Consider what happened when the Democratic majority on the Pennsylvania Supreme Court last month struck down the state’s Congressional map as violating the state Constitution. The partisan judges redrew the map in a way that favored Democrats. Republican appeals to the U.S. Supreme Court for an injunction were denied. But why is a partisan map drawn by Democratic judges better than a partisan map drawn by GOP legislators?
