From a partisan Democrat's perspective, Maryland Attorney General Brian E. Frosh has a heads-I-win, tails-you-lose proposition in front of him. If he appeals a recent federal court decision invalidating the state's 6th Congressional District as an unconstitutional partisan gerrymander and wins, he protects his party's hold on that seat. If he loses, he could set binding national precedent limiting a practice that Republicans have used to even greater effect than Democrats have. That latter possibility has good-government types urging him to appeal in hopes that he will lose.
But even if the Supreme Court ultimately upholds the decision issued last week by a three-judge panel in Maryland, it's far from clear that the case, Benisek v. Lamone, is the kind of gerrymander-killer that reformers have been looking for. It would, at the least, offer a cumbersome mechanism for voters to challenge gerrymanders in court and wouldn't necessarily do much more than work around the edges of the problem.
Standing and constitutional standard
It's not that the Supreme Court thinks gerrymandering is a good thing, it's that the justices have had a hard time figuring out how to address it. The first issue, and the one Benisek v. Lamone might do the most to clarify, is who has standing to sue and under what circumstances. The courts aren't venues for people to settle generalized grievances, they are a forum to adjudicate specific harms. The plaintiffs in this case, a half-dozen Republicans who are or were residents of the 6th District, successfully made the argument that they were harmed by Maryland Democrats' efforts to prevent them from electing a Republican to Congress. Unlike a heralded gerrymandering case out of Wisconsin, the plaintiffs in Benisek v. Lamone didn't try to argue that they were harmed by the overall congressional district map, screwy though it may be, just in their individual opportunity to elect a representative of their choice.
The second issue is what legal basis the court could apply to a gerrymandering case, and this one takes advantage of hints former Justice Anthony Kennedy left in an opinion from the last time the Supreme Court seriously considered the issue. Rather than making an Equal Protection Clause claim, this case argues that the Democratic gerrymander violated the plaintiffs' First Amendment rights of assembly.
Burden of proof
But getting there requires a substantial burden of proof. The standard the judges used in this case required a showing of the mapmakers' intent — possible here because Democrats weren't particularly subtle about it, and former Gov. Martin O'Malley, lately a convert to the cause of redistricting reform, owned up to the obvious in a deposition in this case. It required the plaintiffs to show a particularized injury. And it required them to show that they would not have suffered it absent the scale-tipping of the defendants.
So, if Mr. Frosh takes this case to the Supreme Court and loses, it won't magically undo all the gerrymanders (Republican and Democratic) across the country. It would require a laborious effort to litigate each gerrymandered district, and it only covers cases in which a minority party's voters are spread out among districts to dilute their influence, not cases in which they are jammed into one district to make others comparatively easy for the majority party to win. (In gerrymandering parlance, this decision covers cracking but not packing.) And finally, even in this case, it's not at all clear that the remedy would involve anything more than adjusting the border of the 6th and 8th districts. The remainder of Maryland's districts, and arguably the more egregious ones, would potentially remain. Finally, we would add that the justice who suggested the First Amendment approach to considering gerrymandering, Mr. Kennedy, is no longer on the court, so there's no telling how it would rule.
A political solution
For all those reasons, we tend to agree with Gov. Larry Hogan that Maryland should simply accept the result of this ruling and go about the business of drawing new, fairer lines for the 6th District before the 2020 election — and doing the same thing statewide after the next census.
We had been hopeful that the Wisconsin case, Gill v. Whitford, would provide the Supreme Court with the opportunity to set a standard for how to measure gerrymandering on a whole-state level, but it was remanded back to district court to settle standing issues. It's possible that it could be back to the high court, but in the meantime, a political solution to gerrymandering seems like the most certain way forward. Governor Hogan has tried repeatedly to do that on the state level, only to be stymied by Democrats. We hope that the prospect of redistricting with a Republican governor in charge might make Democrats more receptive. And on the national level, the new Democratic majority in the House of Representatives has an opportunity to pass legislation requiring non-partisan redistricting commissions in every state. Proposals to do that have been floating around for years. Democrats should make that one of their first orders of business and dare the Republican-controlled Senate to reject it.