A three-judge court, on remand in Shapiro v. McManus, has ruled 2-1 that the first amendment-based partisan gerrymandering claim brought against Maryland’s sixth congressional district states a valid claim and now proceeds further (to summary judgment or trial). The opinion is important because, like another case out of Wisconsin and a third (already before the Court from North Carolina) will present a new Supreme Court with different theories under which the Court may finally rein in more egregious political gerrymanders. And this particular opinion is written by Judge Niemeyer, who, as Steve Klepper notes, is a respected conservative judge who serves as a feeder for clerks to the more conservative Supreme Court Justices.
There’s bound to be some jockeying and competition among the lawyers in the three cases, which will be presenting alternative theories as to how to separate permissible from impermissible consideration of political party data in redistricting.
Here is the key holding of the majority:
When applying First Amendment jurisprudence to redistricting, we conclude that, to state a claim, the plaintiff must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution. But vote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury. Instead, to establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. In other words, the vote dilution must make some practical difference. Finally, the plaintiff must allege causation — that, absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.
From the dissent:
But even accepting that the First Amendment supplies the relevant constitutional principle, and even assuming that official misconduct may be afoot on the discrete facts of this case, I cannot responsibly endorse Plaintiffs’ proposed standard (or otherwise approve continued litigation in this matter) unless I first conclude that the standard would be viable and manageable throughout the life of this case and beyond the facts of this case. Two substantial hurdles prevent me from drawing such a conclusion. The first hurdle relates to precedent: the Supreme Court has expressed some degree of tolerance for partisanship in the districting context, but that tolerance creates intractable line-drawing problems. A per se rule flatly prohibiting state legislatures from taking account of voting history or voter affiliation in their mapmaking would streamline the preliminary analysis, but it is not clear that such a rule is available in light of controlling law (or desirable in light of competing interests and objectives).
Even were this Court to implement such a per se rule, there remains a second, insurmountable barrier. Courts are simply not equipped to ascertain those unusual circumstances in which redistricting inflicts an actual, measurable burden on voters’ representational rights. Yet that is precisely what the Supreme Court has required. Compare Davis v. Bandemer, 478 U.S. 109, 127 (1986) (plurality opinion) (“We . . . agree . . . that in order to succeed the . . . plaintiffs were required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.”), and Vieth, 541 U.S. at 295 (plurality opinion) (“This Court may not willy-nilly apply standards—even manageable standards—having no relation to constitutional harms.”), with League of United Latin Am. Citizens [LULAC] v. Perry, 548 U.S. 399, 418 (2006) (Kennedy, J.) (“[A] successful claim attempting to identify unconstitutional acts of partisan gerrymandering must . . . show a burden, as measured by a reliable standard, on the complainants’ representational rights.”). Courts cannot reliably distinguish between what Plaintiffs would term impermissible “vote dilution” and the ordinary consequences of an American political process that is organic, fluid, and often unpredictable.
I think the dissent has the better of the argument that framing this injury as a First Amendment one rather than an Equal Protection one cannot solve the line-drawing problems that the Court has recognized in cases such as Vieth. That said, the Court could now be willing (especially with a 9th Justice appointed by a Democratic president) to engage in the line drawing, and this First Amendment theory offers a nice fig leaf for saying one is not overturning any cases or precedent to now allow the policing of partisan gerrymandering claims.
This case now moves to the next stage, and I expect action on this issue will shift to the North Carolina partisan gerrymandering case, which is now closer to Supreme Court review, where I expect at least amici to offer Judge Niemeyer’s theory as a plausible way to resolve these cases.
[This post has been updated.]