What is the First Amendment Theory of Partisan Gerrymandering?

This week, the Supreme Court will hear argument in the Maryland partisan-gerrymandering case, Benisek v. Lamone.  The case is the first to be framed exclusively as a First Amendment challenge to alleged partisan gerrymandering, and it thus raises new, complex questions about what it would mean to apply the First Amendment to partisan gerrymandering.

Until now, the cases the Court has seen have all been framed principally as Equal Protection challenges (references to the First Amendment have sometimes been thrown in but never developed in a full way).  What changes when partisan gerrymandering is framed as a First Amendment violation?

To work through that question, and the plaintiffs’ theory in the Maryland case, I think it’s helpful to look at the cases involving race and redistricting, which the plaintiffs invoke, and where the law is more developed than in the partisan context.  But two dramatically different types of “racial redistricting” cases exist, which reflect two entirely different causes of action:  those involving racial gerrymandering and those involving racial vote dilution.  These distinct two types of cases differ significantly in the nature of the legal harm involved and, therefore, what needs to be proven to establish these two distinct injuries.

Thus, we can ask:  does a First Amendment theory of partisan gerrymandering treat such gerrymandering as more akin to racial gerrymandering or to racial vote dilution?  Figuring that out is helpful in clarifying about what makes a First Amendment theory of partisan gerrymandering distinctive and what the consequences might be, doctrinally, from endorsing such a theory.  The answer to this question is not easy to tell from the challengers’ brief, which refers to both lines of cases without distinguishing between them.  So let me try to disentangle these two options.

  1. Does the First Amendment Theory Treat Partisan Gerrymandering as Akin to Racial Gerrymandering? 

The most natural or logical way, in my view, to understand the First Amendment approach is that it treats partisan gerrymandering very much like unconstitutional racial gerrymandering (not racial vote dilution).  In the Shaw line of racial gerrymandering cases, the constitutional harm is treated as the very sorting of voters by race into districts, without adequate justification.  As the Court says, the constitutional violation “stems from the racial purpose of state action” — nothing more than racial sorting itself has to be shown.  At that point, strict scrutiny is triggered and the State has to demonstrate a legitimate and compelling justification for moving voters by race (if it’s done because the Voting Rights Act requires it, then it’s constitutional).

In the racial gerrymandering cases, it doesn’t matter what the effects of sorting voters by race might be.  The courts don’t ask whether the political power of different racial groups of voters might have been diluted, or even diminished, or otherwise affected.  It is the very fact of sorting voters by race that constitutes the constitutional harm, unless there is adequate justification for doing so.  Moreover, racial gerrymandering can occur in a single district, if voters have been sorted into or out of that district based on race.  Such a case does not depend on what the state might have done in other districts or what the effects of the districting plan as a whole might be.  The cases are litigated district by district, rather than on a statewide basis.

The First Amendment critique of partisan gerrymandering seems analytically most like these racial gerrymandering cases, both in principle and in the argument the appellants might be taken to be making.  The challengers argue that, just as it is unconstitutional for the State to disfavor individuals based on their political viewpoint in the context of hiring or firing employees (such as engaging in patronage hiring), or in awarding or ending government contracts, so too the State cannot move groups into or out of districts based on their political viewpoints (which in redistricting is done by relying on voter registration information and, more importantly, on past patterns of voting in specific precincts) – also ought to be unconstitutional, if done without adequate justification.  The core idea of a First Amendment theory would seem to be that it’s an impermissible purpose to take political affiliation into account in sorting voters into districts, at least without constitutionally adequate justification.

Understanding the First Amendment claim as akin to the racial gerrymandering cause of action responds to some of the criticisms various briefs make about the Benisek challenge.  First, just as racial gerrymandering claims are made about a specific district or districts, so too with this understanding of a First Amendment theory of partisan gerrymandering:  if voters have been moved into or out of a single district based on their political affiliation, this is impermissible absent a constitutionally adequate justification.  On this approach, it doesn’t matter what’s happening in other districts any more than it does in the racial gerrymandering cases.  There is no need to look at the statewide effects of a plan overall because the injury is the “viewpoint discrimination” involved in sorting voters by political affiliation, without good reason.  And on this theory, of course, the pure pursuit of partisan advantage seeking is not a constitutionally legitimate or permissible reason.

Similarly, the fact that this theory uses the prior districting plan as the baseline, against which the courts then ask whether voters have been moved on the basis of political affiliation, works much the same way as in the racial gerrymandering cases.  In the latter, the courts also take the prior status quo as the starting point and ask whether voters in the new districts were sorted or classified by race.  So the fact that the First Amendment challenge is to a specific district, or that it uses the prior districting plan as the baseline, is not conceptually problematic if the point of the First Amendment theory is to assert that partisan gerrymandering claims ought to be treated like racial gerrymandering claims.

If political sorting by viewpoint has taken place, the question then becomes whether there is a constitutionally adequate justification for it.  Use of political data to ensure a politically fair plan, in which political parties are represented roughly in proportion to their statewide support, is presumably constitutional, as the Supreme Court held many years ago in Gaffney v. Cummings.  Similarly, use of political data to undo a prior partisan gerrymander would also presumably be a legitimate purpose (which is why this approach does not lock into place prior partisan gerrymanders).  But use of political affiliation to pursue unjustified partisan advantage seeking would violate the First Amendment.

The clearest and most unqualified articulation of this way of understanding what a First Amendment approach to partisan gerrymandering means is the amicus brief of Professor Michael Kang.  I believe this understanding also forms the basis in the court below of the dissenting opinion from Judge Niemeyer, on which the appellants rely – when it comes to the remedy he would impose, Judge Niemeyer would “require the redrawing of the Sixth District’s boundaries without the use of information about how citizens voted in the past.”  This remedy reveals his view of the right at stake – the right not to be sorted into districts on the basis of political affiliation.  That does seem the most logical reading of basing challenges to partisan gerrymandering on First Amendment doctrine proscribing viewpoint discrimination by government in the provision of public employment and contracts.

Notice that this understanding of the First Amendment theory does not require saying about the need to prove partisan “vote dilution.”  If the First Amendment theory is that partisan gerrymandering is like racial gerrymandering, there is no need to prove an injury like vote dilution.  The racial gerrymandering cases are not about vote dilution and do not involve vote dilution, as that idea is legally understood.  If the First Amendment theory directly tracks the racial gerrymandering cases, it is enough that redistricters sorted people based on their political affiliations for the purpose of seeking partisan advantage, and no further harm or injury need be shown.  At that point the question shifts to whether the State has an adequate justification for doing so.

The challengers seem to think their theory does, though, require a bit more than that; they take on the obligation to show voters have been “burdened” by the political sorting in some more concrete and specific way beyond having been sorted based on political affiliation.  Thus, they say courts should ask whether plaintiffs have suffered a “real and practical disadvantage” from having been moved into out of districts based on their political affiliations.  Whatever the content of this “real and practical disadvantage” is supposed to be – and I am not clear how the plaintiffs understand this requirement — this “burden” is apparently meant to be something less than traditional vote dilution but something more than just being moved for partisan political advantage seeking.  But it’s also unclear to me why a First Amendment theory logically requires more than being moved on the basis of partisan affiliation for partisan advantage without constitutionally adequate reason.

If the First Amendment theory does ask the courts to treat partisan gerrymandering as akin to racial gerrymandering, the biggest question then becomes whether that approach would draw the courts into too many redistricting contests.  On this approach, redistricters can still take political considerations into account, if they are doing for legitimate, constitutionally permissible reasons.  But they cannot do so for the predominant purpose of seeking partisan advantage.

Nonetheless, sorting people by political affiliation would be suspect, even when partisan vote dilution was not the result, and redistricting bodies would potentially have to defend that sorting in court by being forced to provide a legitimate justification for doing so.  In Vieth v. Jubelirer, Justice Kennedy wrote that any judicial constraints on partisan gerrymandering must be “limited and precise;” the judicial concern here would be that the First Amendment approach does not offer such an approach.   Yet also in Vieth, and in the oral argument in the Wisconsin partisan gerrymandering case, he suggested that when the State moves voters based on their political affiliations for the purpose of seeking partisan advantage, that purpose itself makes the plan unconstitutional.  That purpose-based analysis fits within the framework of a First Amendment approach that sees partisan gerrymandering as akin to racial gerrymandering.

  1. Does the First Amendment Theory Treat Partisan Gerrymandering as Instead Akin to Racial Vote Dilution?

The alternative is that the First Amendment attack treats the harms from partisan gerrymandering as much like the harms in the racial vote dilution cases.  This approach asks whether the effects of a redistricting plan dilute the political power of one identifiable group – voters of one political party, in the partisan context, or of racial/ethnic minority groups, in the race context.  The mere purpose or fact of sorting voters by party would not, itself, be an impermissible act, unless adequately justified.  The plaintiffs would also have to show that this sorting had the effect of diluting the voters of those affiliated with one particular political party.  Is that what the First Amendment theory of partisan gerrymandering means?

In all the partisan-gerrymandering litigation under the Equal Protection clause, this effects prong has been the critical and challenging question all along.   This is why social scientists and lawyers have offered measures like the Efficiency Gap, or other measures, that purport to identify when the effects of a districting plan amount to intentional partisan vote dilution (indeed, plaintiffs often seek to show that this vote dilution is likely to last for most of the decade the plan is in effect).

With respect to this way of understanding the First Amendment theory, I have only a couple things to say.  First, it is not clear to me what distinctive or additional work a First Amendment approach would then do here compared to the traditional way these cases have been litigated under the Equal Protection clause.

The Equal Protection cases, starting with the one in which the Court first recognized a cause of action for partisan gerrymandering under the Constitution, Davis v. Bandemer (1986), have always addressed partisan gerrymandering as akin to the racial vote dilution cases.  If the First Amendment theory is that partisan gerrymandering violates the First Amendment because it amounts to partisan vote dilution, and is akin to the problem of racial vote dilution, then the First Amendment approach just repackages in different language and under a different clause the same issues that have been present all along regarding partisan gerrymandering.  The First Amendment might be a symbolic reminder that’s what’s taking place when partisan vote dilution occurs involves advantaging or disadvantaging voters based on their political affiliations and viewpoints, but I don’t see the First Amendment as adding any distinct value when it comes to determining when and whether impermissible partisan vote dilution has occurred.

Second, if the First Amendment theory is best understood as asserting that partisan gerrymandering is akin to racial vote dilution, then a challenge to a single district in isolation – as in the Maryland case – becomes hard to make sense of.  In the analogous context of racial vote dilution, dilution is assessed on a jurisdiction-wide basis.  You can’t really define racial vote dilution by looking at a single district in isolation.  For example, the claim might be that at-large city or county elections dilute minority voting power; here, the baseline is the city or the county as a whole.  Or when it comes to single-member districting plans, for a state legislature or Congress, the claim in racial vote dilution cases is that, based on the size of the minority population in the state as a whole, or in some distinct region of the state, minority voting power is being diluted – here again, you have to look at what’s happening on a statewide or at least region-wide basis to determine whether vote dilution is taking place.

If a plan, for example, already ensures proportional opportunities to minority groups to elect their candidates of choice – proportional to the baseline of the minority population in the state or region as a whole – then vote dilution has not taken place.  You can’t point to some other district in isolation and assert that this district, too, could be transformed into one in which minority voters are concentrated as the majority.  Racial vote dilution is not, and cannot in principle, be determined by isolating out one district from how a plan works overall.  The same would be true about identifying partisan vote dilution because dilution claims require a baseline that looks at the aggregate effects of a map across some area larger than one single district in isolation.

Thus, if the First Amendment theory views partisan gerrymandering as akin to racial vote dilution – as opposed to racial gerrymandering – I am not sure appeal to the First Amendment adds much to the way these cases are litigated already and I find it puzzling to claim that a single district in isolation can show partisan vote dilution.

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My aim here in sorting through what the First Amendment approach might mean is not to argue for a particular result in the case before the Court.  But in trying to work through what the new approach of litigating these cases through a First Amendment framework might mean, I think it’s  helpful to figure out whether the First Amendment challenge treats partisan gerrymandering more like racial gerrymandering or like racial vote dilution.  Doing so clarifies what the key elements of proof ought to be, what the nature of the asserted constitutional harm is, and what the consequences are likely to be from adopting one way or the other of understanding a purely First Amendment challenge to partisan gerrymandering.

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