The Independent View: Supreme Court to Hear Second Partisan Gerrymandering Case

The Supreme Court added a Second Partisan Gerrymandering Case to its Docket on Friday, suggesting that the Justices are seriously considering whether Voting Maps warped by Politics may sometimes cross a Constitutional line. A ruling allowing such Challenges could reshape American Politics.

The earlier Case, from Wisconsin, was argued in October. The new Case, a Challenge to a Maryland Congressional District, differs from the first Case in several ways:

- It was brought by Republican Voters rather than Democratic ones.
- It is focused on a Single District rather than a Statewide Map.
- It relies solely on the First Amendment rather than a Legal Theory that includes Equal Protection Principles.

When the first Case, Gill v. Whitford, No. 16-1161, was argued, a Majority of the Court seemed at least Open to the possibility that some kinds of Partisan Gerrymandering are Unconstitutional. That Case was a Challenge to Voting Districts for Wisconsin’s State Assembly, which is dominated by Republicans notwithstanding very close Statewide Vote totals.

Justice Anthony M. Kennedy, who probably holds the decisive vote in both Bases, asked several questions about the First Amendment Theory relied on by the Challengers in the new Case, Benisek v. Lamone, No. 17-333, was brought by Republican Voters who said Democratic State Lawmakers had Redrawn a District to retaliate against Citizens who supported its longtime incumbent, Representative Roscoe G. Bartlett, a Republican. That retaliation, the Plaintiffs said, Violated the First Amendment by Diluting their Voting Power.

“The 2011 gerrymander was devastatingly effective,” the Plaintiffs wrote in their Appeal to the Supreme Court, saying that “no other congressional district anywhere in the nation saw so large a swing in its partisan complexion following the 2010 census.” Mr. Bartlett had won his 2010 Race by a margin of 28 percentage points. In 2012, he lost to Representative John Delaney, a Democrat, by a 21-point margin.

A divided Three-Judge Panel of the United States District Court in Maryland denied the Challengers’ request for a Preliminary Injunction.

In dissent, Judge Paul V. Niemeyer, who ordinarily sits on the United States Court of Appeals for the Fourth Circuit, in Richmond, VA, wrote that Partisan Gerrymandering was a Cancer on Democracy. “The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy. Indeed, both Democrats and Republicans have decried it when wielded by their opponents but nonetheless continue to gerrymander in their own self-interest when given the opportunity. The problem is cancerous, undermining the fundamental tenets of our form of democracy.” wrote Judge Niemeyer.