The Supreme Court has agreed to hear a partisan gerrymandering case from Maryland, Benisek v. Lamone. (As with the Wisconsin gerrymandering case, Gill v. Whitford, the Court has postponed the question of jurisdiction as it agreed to hear this appeal—this may be because there are questions about whether courts should properly be hearing these cases).
This is a surprise. Many people thought the Court would simply hold this case pending Gill, and send it back after Gill.
So what gives?
There are differences between the two cases. Gill challenges a statewide plan, while Benisek challenges a particular district. Benisek’s theory of the case is more firmly grounded in the First Amendment. It is really hard to say at this point.
One thing it might mean is that Gill does not resolve the question of partisan gerrymandering but the Court (i.e., Justice Kennedy) wants things resolved this term. For instance, if the Court rejected something on standing or procedural grounds about Gill, this presents another opportunity to take a pass at the case. Then again, there’s a pending North Carolina case which is about the strongest indication of pure partisan intent as the Court is likely to ever see. Legislative leaders in North Carolina admitted they were acting for pure partisan purposes (in order to forestall a claim of racial gerrymandering). The NC case was put on hold after Gill, though that one too could have been set for argument.
It could also be that Gill finds partisan gerrymandering claims justiciable, but leaves certain issues open, issues which the Court then must resolve in Benisek.
But really, when reporters reached out to me last week to ask why the case was relisted, my answer was “who knows?” I stand by that answer.
Here are the questions presented in Benisek, courtesy of SCOTUSBlog:
Issues: (1) Whether the majority of the three-judge district court erred in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map; (2) whether the majority erred in holding that the Mt. Healthy City Board of Education v. Doyle burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders; and (3) whether, regardless of the applicable legal standards, the majority erred in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016.
[This post has been updated.]
Second Update: Here’s an interesting theory: “Maybe they want to hear a challenge to a Democratic gerrymander in addition to the Wisconsin Republican gerrymander?” Indeed, at the Gill argument, Chief Justice Roberts expressed concern about how the courts could appear too political in deciding these cases.