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Today’s big partisan gerrymandering case: Maryland (Benisek v. Lamone)

March 28th, 2018, 11:40am by Sam Wang

So, oral arguments in Benisek just ended. Here’s the transcript! A round-up of the case is at SCOTUSblog. . Audio will soon be available here.

Bloomberg reports that multiple justices questioned whether a First Amendment-based approach of looking at single districts (as is done for racial gerrymandering) is the right approach to regulate the Maryland gerrymander. To remind everyone…it is possible to analyze Maryland on a statewide basis to identify a statistical anomaly. See my Election Law Journal analysis here. Rick Hasen posts a pessimistic take here. He thinks there’s no consensus about how to define a partisan gerrymander, and he thinks this is a problem.

However, here at the Princeton Gerrymandering Project we see a way forward. As PGP’s Will Adler points out, in both Whitford and Benisek oral arguments, Justice Kennedy asked the same question: whether it would be permissible for a state law to mandate that partisanship be a “predominant consideration.” This seems to be a starting point. After that, sure, there’s a question of how to set a standard. In my view it would involve establishing the idea that a map is extreme. As we’ve written before, significance testing provides a path forward: t-test, mean-median difference, Monte Carlo, and map-drawing. They’re all related ideas, and they comprise a valuable toolbox for the judge.

PGP’s own Brian Remlinger was in the room for oral argument. He reports:

That was something. The liberals tore into the Republican plaintiff for not having a clear test, but Roberts tore into the Democrats for discriminating against the Republican voters, so his vote may be in play. He seems interested in doing something. Overall, I am more optimistic that it’s not game over when Kennedy retires.

I think whatever the Court does will include clear guidance on how to distinguish an unacceptable gerrymander from normal redistricting. Whitford wasn’t mentioned too much, so I didn’t get a sense of how the specific standard would be structured, except it will likely have some effects prong involving showing that a map substantially changes the electoral results.

Every justice seemed to think there’s no way that the gerrymander could be cured before November, which raises procedural issues for reversing the injunction. The Court might uphold the denial of the injunction, on the grounds that there’s no irreparable harm, but then establish a standard that would govern the Maryland trial as it goes forward.

Specific justices: The liberals won’t do anything to harm the anti-gerrymandering cause. Alito was dismissive and a vote against. Gorsuch didn’t say much.

In summary, Roberts’s vote might be in play! But we still don’t know what a standard would look like.

Tags: Redistricting

8 Comments so far ↓

  • 538 Refugee

    I’d just like to say “Thank You” to Brian for providing his insight and to Sam for making it available in a timely fashion.

  • Pechmerle

    Lyle Denniston today gives some very thoughtful analysis as to why we might not get a definite ruling from either the Whitford or Benisek cases. Both cases came up to the S. Ct. with procedural wrinkles that could allow the Court to kick the can down the road to next term (esp. Benisek, where the attorneys for plaintiffs chose – oddly, but for whatever reasons of their own – not to appeal on all the grounds they had raised before the trial court.)

    Denniston also notes the substantial effort that Breyer put into pressing – during the recent Benisek oral argument – that they ought to combine Whitford, Benisek, and Rucho (from Nor. Carolina, which will not have oral argument this term) for a single reargument next term, which could then result in a definitive ruling One reason for that is the evident lack of consensus on the Court, at the Whitford and Beniske oral arguments, as to how a remedy for overly partisan gerrymandering might be formulated as a manageable judicial rule. Always hard to read the tea leaves, but those hearings showed the justices still wrestling with how to resolve the issue and what firm rule might look like.

    Denniston also goes on to suggest opposing factors why the Court might issue a definite ruling in one of this term’s two cases. If Kennedy is planning to retire at the end of this term, that would be such a factor of course. (He has hired a full complement of law clerks for next term though.)

    Denniston’s post is well worth a read.

    • LondonYoung

      Denniston’s post is a good read, and very sobering.

      I would add: If Vieth only left us with the question “is there a standard that can be used?” then so far we have zero evidence that there is any progress since Vieth.

      Sure the judges don’t like partisan gerrymanders – but we already knew that.

    • Pechmerle

      I’ve downloaded a copy of the Gobbledygook 101 draft, and will read with keen interest. I’ll send over my comments – if any – as soon as I can. Might not be until the weekend, though.

    • LondonYoung

      Well, Brian is editing even as I am reading ;-)

      But I need to understand two legal points before I offer my opinion. Have the following been decided yet:

      Voter A is a democrat in a city, and he is packed so he always gets represented by the party of his choice.
      Voter B is a democrat in the suburbs; without voters like A in her district the republicans win and she is never represented by the party of her choice.
      Voter C is a democrat in a nearby single district state.

      In world “1” the democrats control the house, in world “2” the gop has narrow control due to the packing of Voter A.

      First question: of A1, A2,, B1, B2, C1 and C2 which are being unconstitutionally harmed? Is this decided yet?

      Next. Assume urban democrats want federal grants for better subways and are hostile to tunnels which lead to a plague of commuters. Assume suburban democrats love tunnels but don’t care about subways. If Voter A is redistricted (cracked) into a district with many suburban voters such that more democrats are elected but those democrats build the much hated tunnels – has he been unconstitutionally harmed?

      To know if the toolkit addresses the problem I need to know what the court is thinking the problem is … and the number one issue I see is whether or not to crack cities …

      I think the gobbledygook title expresses the problem you really want to address. Non-mathematical people are going to ask about the practical effects of this math on simple issues that they can understand. And if they don’t get a clear answer they will assume it is all gobbledygook empowering a partisan judge to favor his own party.

    • LondonYoung

      at the moment the paper emphasizes partisan symmetry – and that is gonna commit you to city cracking

  • Matthew McIrvin

    The next frontier after gerrymandering seems to be sabotaging the Census itself. Any thoughts on detecting the effects of that?

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