The Supreme Court’s decision to hear full oral arguments this term in Benisek vs. Lamone, a gerrymandering case from Maryland, raised a lot of eyebrows among close watchers of election law. The high court already heard one gerrymandering case this year, a Wisconsin suit that had gotten a lot of buzz for the novel statistical methods plaintiffs used in an attempt to overcome questions about how the courts could set standards for what district lines are legal. The Maryland case hasn’t even gotten a full hearing in lower federal courts; what the Supreme Court is hearing is technically just the appeal of a denied request for a preliminary injunction to invalidate the boundaries of the 6th Congressional District before November’s election. There’s got to be a reason the court plunked this case onto the docket now, and the leading theories for what that might be have gerrymandering foes excited.
During the oral arguments in the Wisconsin case, Chief Justice John Roberts expressed concern that the average observer would interpret the court’s intervention as favoring one party over the other — specifically Democrats rather than the Republicans who benefited from the Wisconsin maps. Voila, Benisek vs. Lamone involves a Democratic gerrymander to harm Republicans. Combine the cases together, and it looks like you’re not picking sides.
Others have noted that Justice Anthony Kennedy has mused on multiple occasions that the most promising argument against gerrymandering would likely come on First Amendment grounds, not the Equal Protection Clause claims involved in the Wisconsin case. Benisek vs. Lamone zeroes directly on the First Amendment with a claim that the Democrats who drew the maps were, effectively, retaliating against voters in the old 6th District for their habit of supporting Republicans and, in so doing, placed burdens on their ability to exercise their political preferences.
Another theory is that Benisek vs. Lamone offers stronger grounds for federal court intervention because it deals with congressional district boundaries, whereas the Wisconsin case is about legislative districts, and could offer the court the opportunity to rule based on Article I’s Elections Clause. Or perhaps the justices like it better because it focuses on one district, not an entire map.
Whatever the case, we certainly hope the anti-gerrymandering advocates’ optimism is warranted. Whether it is the Wisconsin case, Benisek v. Lamone or one of the others percolating through the system, we believe the Supreme Court has an important opportunity to uphold the Constitution’s promise that the House (and by implication, state legislative bodies) reflect the changing will of the people, not the interests of incumbents or whatever party is in power when the lines are drawn.
However far the Supreme Court might go in its ruling, though, it is becoming increasingly clear that the judiciary alone can’t fully solve the problem. Courts can invalidate districts after the fact and can even draw new boundaries (as Pennsylvania’s state supreme court has done in advance of the fall midterm elections), but they can’t prescribe a fair process to create the maps in the first place.
A new report by The Sun’s John Fritze on documents related to the 2011 redistricting process showed state officials taking steps to ensure that the group in charge of drawing the maps would not be subject to open meetings laws. In other instances, officials expressed reservations on the use of voter data to draw the lines, saying that doing so to the extent Maryland did could make the maps difficult to defend in court. Those who were involved — including former Gov. Martin O’Malley, now a supporter of non-partrisan redistricting — defended the process as being entirely consistent with the law and past practice in the state. That makes matters worse; it means what happened in 2011 wasn’t an anomaly. Even if the Supreme Court throws out the 6th District, there’s a real likelihood that the redistricting after the 2020 Census will be an exercise in recalibrating what the party in power can get away with, not in conducing a fair, open, voter-centric process.
Gov. Larry Hogan supported redistricting reform as a candidate, and he has repeatedly introduced legislation to create a non-partisan commission to draw the lines in the future. We certainly hope his prospective Democratic opponents will join him on this issue, though there’s no guarantee that will make a difference with the Democrat-dominated legislature. Mr. Hogan’s Democratic opponent in 2014, Anthony G. Brown, supported redistricting reform, too. But there is something the next governor can do: create the state’s redistricting advisory commission through an executive order rather than an informal announcement and thus make it subject to open meetings laws. If we can’t have a non-partisan process, at least we can make it more fully transparent.
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