Judge Niemeyer’s dissent is the real headline in Maryland political gerrymandering case

By Steve Klepper (Twitter: @MDAppeal)

Today, a three-judge panel of the U.S. District Court for the District of Maryland stayed proceedings in Maryland’s political gerrymandering case, Benisek v. Lamone, pending the Supreme Court’s decision in the Wisconsin political gerrymandering case, Gill v. Whitford. The real headline, though, is Fourth Circuit Judge Paul Niemeyer’s dissent, which could have real implications for Gill.

The central question in Gill is whether, contrary to Justice Scalia’s 2004 plurality opinion in Vieth v. Jubelirer, there are “judicially discernible and manageable standards for adjudicating political gerrymandering claims.” Justice Kennedy, who prevented that plurality opinion from becoming a majority opinion, concurred because he “would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”

Judge Niemeyer’s dissent (which begins on page 25) seeks to establish that Justice Kennedy was right to hold out hope for such a standard:

I believe that the record could not be clearer that the mapmakers specifically intended to dilute the effectiveness of Republican voters in the Sixth Congressional District and that the actual dilution that they accomplished was caused by their intent. Accordingly, the motion should be granted.

The record demonstrates, without any serious contrary evidence, that the Maryland Democrats who were responsible for redrawing congressional districts in 2011 specifically intended to dilute the votes of Republicans in the Sixth District and in fact did so. They identified likely Republican voters and moved them in large numbers into the Eighth District, which had a safe margin of Democratic voters. They simultaneously replaced these Republican voters with Democratic voters from the Eighth District. More specifically, they moved 360,000 persons (roughly one-half of the District’s population) out of the former Sixth District — when only 10,000 had to be moved in response to the 2010 census — and simultaneously moved 350,000 into the “new” Sixth District. And critically, in making those moves, they focused on voting histories and party registration to move 66,400 registered Republicans out of the Sixth District and replace them with 24,400 registered Democrats, creating a Democratic voter majority in the new Sixth District of 192,820 Democrats to 145,620 Republicans. Prior to the massive shuffle, the Sixth District had 208,024 Republicans and 159,715 Democrats. This 2011 shuffle accomplished the single largest redistricting swing of one party to another of any congressional district in the Nation.

Consistent with this evidence, the State’s Democratic leadership stated that their reshuffling of voters by voting history was specifically intended to flip the Sixth District from Republican to Democratic so as to create a 7 to 1 Democratic congressional delegation. For example, Maryland Governor Martin O’Malley, who led the effort to develop a new congressional map after the 2010 census, stated that he wanted to redraw the lines of the Sixth District to “put more Democrats and Independents into the Sixth District” and ensure “the election of another Democrat.” He added, “Yes, this was clearly my intent.” And other Democrats involved in the process similarly revealed their intent with statements indicating, for example, that the Sixth District was redrawn to “minimize the voice of the Republicans” and to “hit[]” Republican Congressman Roscoe Bartlett from the Sixth District “pretty hard.” Moreover, the firm hired to draw the map was given only two instructions — to come up with a map (1) that protected the six incumbent Democrats and (2) that would produce a 7 to 1 congressional delegation.

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Building on the Supreme Court’s previous holdings that ensure “one person, one vote” and that prevent racially motivated gerrymanders, we held earlier in this case that when district mapdrawers target voters based on their prior, constitutionally protected expression in voting and dilute their votes, the conduct violates the First Amendment, effectively punishing voters for the content of their voting practices. See Shapiro, 203 F. Supp. 3d at 595–96. This First Amendment test focuses on the motive for manipulating district lines, and the effect the manipulation has on voters, not on the result of the vote. It is therefore sufficient in proving a violation under this standard to show that a voter was targeted because of the way he voted in the past and that the action put the voter at a concrete disadvantage. The harm is not found in any particular election statistic, nor even in the outcome of an election, but instead on the intentional and targeted burdening of the effective exercise of a First Amendment representational right. Recent comments of Supreme Court Justices made both in this case and in Vieth have suggested that this standard is available for assessing the constitutionality of a gerrymander. And under this standard, I respectfully conclude, the plaintiffs have succeeded in carrying their burden.

Some background on Judge Niemeyer helps to understand why his voice is likely to be heard in Gill. Based in Baltimore, Judge Niemeyer is possibly the most conservative member of the Fourth Circuit. Over the years, ten of his clerks have gone on to the clerk on the Supreme Court, mostly for conservative justices (three with Justice Scalia, two each with Chief Justice Roberts and Justice Kennedy, and one each with Chief Justice Rehnquist and Justices O’Connor and Sotomayor). He was most recently in the national news for siding with the Trump Administration in a dissent in International Refugee Assistance Project v. Trump.

Judge Niemeyer’s dissent is critical in highlighting that—even though Republican-drawn maps in North Carolina, Texas, and Wisconsin have drawn the most attention—partisan gerrymandering should not be a partisan issue. No one knows now whether Democrats will enjoy a “wave” election in 2018, but there is a real chance that they could flip control over numerous state legislatures in time for the 2020 census and subsequent redistricting. The forthcoming briefs of the challengers and their amici in Gill are sure to point to Judge Niemeyer’s dissent. It deserves, and likely will receive, significant attention from the justices.