From Plaintiffs-Appellees’ Brief filed in the Supreme Court yesterday:
A State may not inhibit “the political participation of some in order to enhance the relative influence of others.” McCutcheon v. FEC, 572 U.S. 185, 191 (2014). Given this insuperable principle, counsel for the State agreed last Term that if “the Maryland legislature passed a statute and said, in the next round of reapportionment, we’re going to create seven Democratic districts and one Republican district,” it would be unconstitutional “viewpoint discrimination.” Tr. 45:9- 47:22, Benisek v. Lamone, 138 S. Ct. 1942 (2018) (No. 17-333). Yet in practical effect, that is exactly what Maryland did during the 2011 congressional redistricting process….
The Court has held repeatedly that election regulations may not unduly “burden the availability of political opportunity” of particular groups of citizens on the basis of their political views. Clements v. Fashing, 457 U.S. 957, 964-65 (1982). In particular, “schemes that impose burdens on new or small political parties or independent candidates” violate “First Amendment interests in ensuring freedom of association” when they concretely inhibit individuals’ “association with particular political parties” and “mak[e] it virtually impossible for” candidates from disfavored parties to achieve electoral success. Ibid. Accord, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983); Cook v. Gralike, 531 U.S. 510 (2001). That is exactly what a partisan gerrymander does—and if those burdens are capable of principled evaluation in the ballot-access context, they are equally so here….
Application of the First Amendment to partisan gerrymandering would not outlaw politics in redistricting; mapdrawers would be free to use political data in pursuit of balanced and competitive maps, and to undo past gerrymanders. The First Amendment framework provides a more workable and analytically sound approach to evaluating the problem of partisan gerrymandering—it focuses on what kind of political considerations are impermissible, not just how much political consideration is too much. Many political considerations that play important, proven roles in redistricting remain lawful under the First Amendment.
This is the strongest brief I’ve seen from the Maryland plaintiffs at any stage. It wisely backs away from the idea that gerrymandering is a form of retaliation — a backward-looking type of injury — instead focusing on whether the state has burdened the disfavored party and its voters prospectively (p. 25). It also hews to the established First Amendment association standard set forth in Anderson v. Celebrezze and other cases (pp. 36-42), while also telling the story of how the disfavored party and its adherents were harmed both inside and outside the electoral process, as Justice Kagan recommended in her Gill v. Whitford concurrence. See this post for my thoughts on why this is the best approach.
Interesting that McCutcheon is featured prominently by all three plaintiff groups in the NC and MD redistricting cases