The following is the fifth and final in a series of guest posts on Benisek v. Lamone by Ohio State’s Ned Foley.

Edward B. Foley

This blog essay is the last in a series derived from a contribution to a University of Georgia Law Review symposium, building upon the first, second, third, and fourth installments.

             Two years ago, in March of 2016, the plaintiffs in Benisek v. Lamone filed a complaint in which they alleged that the gerrymandering of Maryland’s congressional districts violated both the First Amendment and Article I of the federal Constitution.  Paragraphs 140-142 summarized the heart of the complaint’s Article I claim:

140.    The [state] legislature, rather than Maryland’s voters, has in effect chosen the representative to the U.S. House of Representatives for Maryland’s 6^th [Congressional] District.
141.    The result is a violation of the plaintiffs’ representational rights, protected under Article I, Sections 2 and 4, of the United States Constitution.
142. The State cannot justify the cracking of the 6^th District by reference to geography or compliance with constitutionally legitimate redistricting criteria.

Although these particular paragraphs focused specifically on the state’s Sixth congressional district, other paragraphs in the complaint made clear that plaintiffs’ Article I claim – that the state’s legislature, by wrongfully manipulating district lines, was effectively depriving the state’s electorate of its Article I right to choose Representatives responsive to its changing electoral preferences – was just as applicable, if not even more so, to other congressional districts in the state.  For example, paragraphs 69-71 concerned the state’s Third Congressional District.  After citing a Washington Post piece for the proposition that Maryland’s Third was “the second most gerrymandered [congressional] district in the country,” the complaint included a visual depiction of how over time the district’s lines were increasingly distorted (“ever-worsening contortions”)—to the point where the district now resembles a “praying mantis” or a “pinwheel of death”—in order to prevent the district from falling into the opposition party’s hands as a consequence of the electorate’s changing political preferences.

After a three-judge district court rejected the state’s motion to dismiss this complaint, the plaintiffs moved for a preliminary injunction.  In this motion, however, the plaintiffs essentially abandoned any reliance on the Article I claim in their complaint, or any consideration of districts other than the Sixth, focusing exclusively instead on just a specific First Amendment theory applicable to solely to that single district. According to that First Amendment theory, the state unconstitutionally retaliated against the voters of the Sixth District, as it was previously configured, because they voted in favor of a Republican candidate and, as punishment for exercising their First Amendment right to vote this way, the state cleaved their district apart.  The same three-judge district court denied the preliminary injunction, and as this denial is an immediately appealable order under applicable jurisdictional statutes, the plaintiffs appealed the case to the U.S. Supreme Court, where they have again pressed their First Amendment retaliation theory.  The Court scheduled oral argument on the appeal for this coming Wednesday, March 28.

The way the plaintiffs have chosen to pursue their request for a preliminary injunction, by focusing exclusively on their retaliation argument and solely upon the Sixth District, is puzzling and especially so since their own complaint is so much broader (as described at the outset above).  For one thing, the retaliation argument is particularly weak and surely does not put their case’s best foot forward.  My intention in this series of blog essays is not to disparage a lawsuit that I believe ultimately should prevail, albeit on entirely different grounds. Suffice it to say that retaliation is not the problem that gerrymandering presents.  A simple observation illustrates this fundamental truth: we easily can imagine the mapmaker who perpetrates the gerrymander saying, “I had no desire to punish any voters for past votes; I only wanted to make sure that my party did not lose strength in the legislature as a result of potential shifts in the future preferences of voters.”  As I have endeavored to explain in this series of blog essays, the much stronger argument in the plaintiffs’ complaint is the one resting on Article I, which requires that the biennial elections to the federal House of Representatives be directly and genuinely responsive to shifts in the electoral preferences of the “People” of the state, and extends beyond the Sixth District to the other, even more egregiously gerrymandered districts in Maryland, including the Third.  But in any event, there is no reason that the plaintiffs could not have advanced both claims (the First Amendment retaliation theory and the Article I responsiveness requirement) in their motion for a preliminary injunction, as they did in their complaint.

The question now is what the Supreme Court should do with the case, given its current procedural posture, assuming that the Court agrees that the retaliation argument is not meritorious.  The Court could simply affirm the district court’s denial of a preliminary injunction and say nothing about the Article I claim in the complaint that was not pressed as part of the motion for a preliminary injunction.  This disposition would leave it entirely to the district court, at least in the first instance (since the case could get back to the Supreme Court on another appeal down the road), to decide whether the Article I claim remains in the case or instead has been waived by the plaintiff for failure to pursue it as part of the preliminary injunction motion.  (I would assume that there has been no permanent waiver— based on my general, but now outdated understanding, of federal court procedural rules; however, I have not researched the point specifically for the purpose of the pending Benisek appeal, and thus leave the issue to others to resolve definitively should the need arise.)

But because the case inevitably must go back to the district court for further proceedings there, given its current posture as being on appeal at the preliminary injunction stage, the Court – or at least some of the Justices – might wish to say something about the Article I claim in the complaint.  Of course, it would not be appropriate for the Court to resolve that claim definitively one way or the other.  There has been no briefing upon it.  But the Court, or some Justices, could signal that it is worthy of attention, assuming it remains properly in the case and not waived.

The Court has another case, Rucho v. Common Cause, knocking on its door that also presents a similar Article I claim concerning congressional gerrymandering.  That case, from North Carolina, may be held in abeyance awaiting the Court’s disposition of Benisek, as the North Carolina appellants themselves suggest.  But the district court sustained the Article I claim in the North Carolina case, and thus if the Supreme Court says nothing about Article I in disposing of Benisek, then it will need to schedule oral argument in the North Carolina case in order to resolve the merits of that separate issue.  As a matter of the Court’s own judicial efficiency, it might help to advance deliberation on the merits of this important issue if it uses the pending Benisek appeal to give some guidance to the parties in both these cases on why the Article I issue is distinctively significant.  Without prejudging the merits of the issue, either for Benisek on remand or for its own consideration of the North Carolina appeal, the opinion of the Court (or for one or more Justices) in Benisek could invite the development of arguments on whether Article I, or specifically its Elections Clause, requires different analysis than the Fourteenth Amendment (including its incorporation of the First Amendment).  This kind of invitation would be similar to Justice Kennedy’s concurrence in Vieth, although there he was exploring whether the First Amendment offered something distinctive relative to Equal Protection.

As explained in the first installment of these blog essays, and developed throughout the remainder of this series, a constitutional challenge to congressional gerrymanders based on Article I is structurally different from any Fourteenth Amendment claim (whether Equal Protection or the incorporated First Amendment).  By its very nature, the Article I claim applies only to congressional gerrymanders and thus sits in a very different posture in terms of federalism than any Fourteenth Amendment claim.  As also explained in these blog essays, from an originalist perspective, the idea of the federal judiciary invalidating the districts for a state’s own legislature raises fundamental structural concerns that are entirely different than if the federal judiciary invalidates congressional districts drawn by a state.

As originally understood at the time of its ratification, the federal Constitution left to the states wide latitude in deciding for themselves how to implement the principle of popular sovereignty, or what the Founders considered to be “a republican form of government.”  Nor did the Fourteenth Amendment, as originally understood when it was ratified as part of the Constitution, negate this control that states retained over how best to configure their own legislatures according to republican principles of popular sovereignty.  States could choose short legislative terms, or long ones.  A bicameral or unicameral legislature.  Term limits or not.  And on and on, all being consistent with a basic commitment to republicanism.

The original Constitution’s treatment of elections to the federal House of Representatives, however, was entirely different.  On this, fundamental choices about how to implement the republican principle of popular sovereignty were not left to the discretion of state legislatures, but instead made by the Constitution itself: directly elected biennial terms, to contrast with the indirectly elected six-year terms of Senators, in a bicameral arrangement where the House of Representatives was to be the chamber closely responsive to the changing preferences of the electorate.  In light of these originally specified structural elements of House of Representatives, for the federal judiciary to invalidate state laws fundamentally incompatible with the electoral responsiveness that these structural elements were designed to achieve would in no way present the federalism concerns that invalidation of a state’s districting for its own legislature raises.

Indeed, for the federal judiciary not to invalidate state legislation fundamentally incompatible with the Constitution’s original design for the federal House of Representatives would be a derogation of the federal judiciary’s duty under Marbury v. Madison to enforce the law that the Constitution, including its structural features, establishes.  Or at least that proposition is worthy of argument and careful consideration, as it has been the purpose of these blog essays to demonstrate.  Thus, as Benisek moves from argument to disposition, and as the North Carolina case waits in the wings, this proposition should remain very much in mind.  If not resolved immediately, because of how the Benisek plaintiffs pursued their motion for a preliminary injunction, it must not be overlooked but instead should move to center stage as consideration of congressional gerrymandering—and the distinctive constitutional problem it presents—continues.