Today, a three-judge panel of the U.S. District Court for the District of Maryland stayed proceedings in Maryland’s political gerrymandering case, Benisek v. Lamone, pending the Supreme Court’s decision in the Wisconsin political gerrymandering case, Gill v. Whitford. The real headline, though, is Fourth Circuit Judge Paul Niemeyer’s dissent, which could have real implications for Gill.
The central question in Gill is whether, contrary to Justice Scalia’s 2004 plurality opinion in Vieth v. Jubelirer, there are “judicially discernible and manageable standards for adjudicating political gerrymandering claims.” Justice Kennedy, who prevented that plurality opinion from becoming a majority opinion, concurred because he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
Judge Niemeyer’s dissent (which begins on page 25) seeks to establish that Justice Kennedy was right to hold out hope for such a standard…
Some background on Judge Niemeyer helps to understand why his voice is likely to be heard in Gill. Based in Baltimore, Judge Niemeyer is possibly the most conservative member of the Fourth Circuit. Over the years, ten of his clerks have gone on to the clerk on the Supreme Court, mostly for conservative justices (three with Justice Scalia, two each with Chief Justice Roberts and Justice Kennedy, and one each with Chief Justice Rehnquist and Justices O’Connor and Sotomayor). He was most recently in the national news for siding with the Trump Administration in a dissent in International Refugee Assistance Project v. Trump.
Judge Niemeyer’s dissent is critical in highlighting that—even though Republican-drawn maps in North Carolina, Texas, and Wisconsin have drawn the most attention—partisan gerrymandering should not be a partisan issue. No one knows now whether Democrats will enjoy a “wave” election in 2018, but there is a real chance that they could flip control over numerous state legislatures in time for the 2020 census and subsequent redistricting. The forthcoming briefs of the challengers and their amici in Gill are sure to point to Judge Niemeyer’s dissent. It deserves, and likely will receive, significant attention from the justices.