The Independent View: Current Partisan Gerrymandering Cases

Whitford v. Gill (formerly known as Whitford v. Nichol)

United States District Court for the Western District of Wisconsin (No. 15-cv-421)

The plaintiffs, 12 Wisconsin Residents who historically have voted Democratic, filed a Lawsuit on July 8th, 2015 in the U.S. District Court for the Western District of Wisconsin challenging the Legislative District plan drawn by the Republican-controlled Legislature following the 2010 Census. They argue the map is Unconstitutional because it Discriminates against Democratic Candidates and Voters on the basis of their Political beliefs, Violating the Equal Protection Clause of the Fourteenth Amendment, and because it burdens their First Amendment Rights of Association and Speech.

Earlier this year, on April 7th 2016, the Three-Judge Federal panel ruled Unanimously to allow the Case to proceed to Trial, marking the first time in three decades that partisan Gerrymandering claims survived a motion to Dismiss. The Trial was held in late-May and posed two Major questions for the Court. The first was whether the Wisconsin State House plan had been drawn with Discriminatory Partisan intent. Second, assuming there was intent, the Trial turned to whether the Maps had a Constitutionally Discriminatory effect, an issue that Courts have thus far been unable to develop a simple Test to resolve.

The trial provided a Key Initial Test for the Efficiency Gap, a proposed Standard for determining Discriminatory effect that Counts the number of Votes each Party wastes in an Election to determine whether either Party enjoyed a systematic advantage in turning votes into Seats.

On November 21st, 2016, the Panel issued a 2-1 Opinion holding that Wisconsin’s Legislative Plan was an Unconstitutional Partisan Gerrymander because it resulted in Excessive Partisan Asymmetry that could not be explained by neutral factors such as Political Topography. Shortly thereafter, the Panel ordered the Wisconsin Legislature put a Remedial Plan in place by November 1st, 2017.

Wisconsin filed an Appeal on February 24th, 2017, asking the Supreme Court to review the decision Striking Down the Map.

Benisek v. Lamone (formerly known as Shapiro v. McManus)

United States District Court for the District of Maryland (No. 13-cv-3233)

A group of Maryland Voters filed a Complaint in the U.S. District Court for the District of Maryland on November 5th, 2013 challenging the Congressional Redistricting plan enacted by the Democratic-controlled Maryland General Assembly following the 2010 Census.

In their Amended Complaint, Plaintiffs claimed that Maryland’s 6th Congressional District was a Partisan Gerrymander that Violated their Representational Rights guaranteed by Article I of the U.S. Constitution and their First Amendment Right of Political Association. Until the 2011 Redistricting, the Sixth District routinely sent a Republican to Congress; afterward, the District flipped, going to the Democratic side. Under the Plaintiffs’ theory of the Case, the Democratic-controlled Legislature engineered this flip in an attempt to punish Republican Voters for casting their Ballots in favor of their preferred Republican Candidates.

On August 24th, 2016, the Panel denied the State Defendants’ Motion to Dismiss in a 2-1 decision, holding that the Plaintiffs had adequately alleged a Claim that they had been Disfavored and Punished for Exercising their First Amendment Rights. The Parties are now proceeding with Discovery, with a Trial in the case Expected in late Summer or early Fall 2017.

Harris v. McCrory

United States District Court for the Middle District of North Carolina (No. 13-CV-949)

This Supreme Court Appeal arises from a challenge to a Remedial Congressional Map adopted by the North Carolina Legislature in February 2016 after its original Congressional Map had been struck down by a Three-Judge Panel as a Racial Gerrymander. To guide the Drawing of the Remedial Map, Legislative Leaders adopted Rules that required the Map to Preserve the State’s existing Partisan balance of ten Republican and three Democratic Seats. After the State adopted the Map, the Plaintiffs filed objections, contending that it was an Unconstitutional Partisan Gerrymander.

Earlier this summer, the Panel denied the Plaintiffs’ Partisan Gerrymandering Objections. In the eight-page Opinion, the Court concluded that its “hands appear to be tied” because Partisan Gerrymandering Claims are Non-Justiciable. Nonetheless, the Court emphasized that its Ruling did not prevent further Challenges to the State’s Remedial Plan.

The Plaintiffs have asked the Supreme Court to Review the Panel’s decision not to consider the Partisan Gerrymandering claim. The Brennan Center filed an Amicus Curiae Brief with the Supreme Court, asking the Justices to summarily Reverse the Panel’s Justiciability Ruling and to remand the Case for further proceedings.

The Court will decide if it will take the Case sometime this Term. If the Court decides to take the Case, arguments are likely to be set for early or during the next term. In the meantime, the Court heard Argument in the State Defendants’ Appeal of the original Racial Gerrymandering Claims on December 5th, 2016. A decision is expected before the Court recesses in June 2017.

Common Cause v. Rucho

United States District Court for the Middle District of North Carolina (No. 1:16-CV-1026)

The Plaintiffs claim that North Carolina’s Remedial 2016 Congressional Map, adopted by the North Carolina Legislature after an earlier Map was struck down, is an Unconstitutional Partisan Gerrymander in Violation of the First Amendment, the Equal Protection Clause, and Article I sections 2 and 4 of the U.S. Constitution. The Plaintiffs argue that the Remedial Map Favored some Voters and Penalized others for their Political Party Memberships and Affiliations, thereby affecting the state Government’s ability to maintain Political Neutrality when Distributing Political Representation and Power.

The Three-Judge Panel hearing the Case denied the State's Motion to Dismiss on March 3rd, 2017 and has set the start of the Trial in the Case for June 26th, 2017. The Trial will be consolidated with Trial in League of Women Voters v. Rucho.

League of Women Voters v. Rucho

United States District Court for the Middle District of North Carolina (No. 1:16-CV-1164)

Race and Politics collided in North Carolina this cycle, presenting Courts with both Racial and Partisan Gerrymandering Claims.

On October 24th, 2013, Plaintiffs in Harris v. McCrory filed Suit alleging that North Carolina Packed African-American Voters into the 1st and 12th Congressional Districts when it Redrew its Congressional District lines in 2011. The District lines, they argued, Diluted African-American Voting Power and Violated the Equal Protection Clause of the Fourteenth Amendment. In early February, the Three-Judge Panel agreed and struck down the State’s Congressional Map as an Unconstitutional Racial Gerrymander.

After the Ruling, the State Defendants Appealed. Meanwhile, the North Carolina Legislature held an Emergency Special Session where it Redrew the Map. However, in Redrawing Maps, Legislative lLaders adopted Rules that required proposed Maps to maintain the State’s Partisan balance of 10 Republican and 3 Democratic Seats. A key Legislative Leader stated on the Floor that, "I acknowledge freely that this would be a political gerrymander, which is not against the law." The Challengers filed Objections to the Remedial Plan claiming the new Map was Doubly Defective. Not only did the Legislature fail to fix the deficiencies with the Original Map, they argued, but it also added an Unconstitutional Partisan Gerrymander to the still-existing Racial Gerrymander.

The Court denied the Plaintiffs’ objections on June 2nd, 2016. In the short eight-page Opinion, the Court said its “Hands Appear to be Tied” given the lack of a Judicially Management Standard to evaluate Partisan Gerrymandering Claims. However, the Court emphasized that its Ruling was not an endorsement of, nor does it prevent further Challenges to, the State’s Remedial Plan.

The Plaintiffs have Appealed the District Court’s Ruling on the 2016 Remedial Map to the Supreme Court. In the meantime, Common Cause and the League of Women Voters have filed Suits in District Court also challenging the Constitutionality of the 2016 Remedial Plan.

As stated above, both cases have been consolidated and the Trial is scheduled to begin on June 26th, 2017.