Benisek v. Lamone – an End Run for No Gain in Redistricting Challenges?
A three-judge panel of the federal district court for Maryland recently concluded another round in the longstanding legal fight over the state’s 2011 congressional redistricting plan and, in particular, the plan’s restructuring of Maryland’s Sixth Congressional District. In a 2-1 decision, the panel denied plaintiffs’ motion for a preliminary injunction against use of the redistricting plan in the upcoming 2018 midterm congressional elections. Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (Aug. 24, 2017) (“Benisek II”). In Benisek v. Lamone sub nom. Shapiro v. McManus, 203 F. Supp. 3d 579 (D. Md. 2016) (“Benisek I”), the same district court panel denied defendants’ motion to dismiss plaintiffs’ second amended complaint.
The Benisek II panel’s denial of a preliminary injunction is directly appealable to the Supreme Court under 28 U.S.C. § 1253, and the plaintiffs have appealed. No. 17-333 (U.S. docketed Sept. 1, 2017). The Benisek litigation now takes on a new light, not just because of its docketing in the Supreme Court but also because the panel stayed proceedings in the case, pending review and decision by the Supreme Court of another redistricting case pending there, Gill v. Whitford, 218 F. Supp. 3d 837 (W.D. Wis. 2016), appeal docketed, No. 16-1161 (U.S. Mar. 24, 2017). In Gill, Wisconsin’s 2011 state legislative redistricting is being challenged on Equal Protection and First Amendment grounds. Gill has been set for argument on October 3, 2017.
It is not unreasonable to urge that, as in Gill, the facts plead and alleged in the Benisek litigation make a compelling case for some level of judicial review of legislative redistrictings, particularly in the face of the uncertainty as to the justiciability of Equal Protection challenges to redistricting since the Supreme Court’s decision in Vieth v. Jubelirer, 541 U.S. 267 (2004). Vieth undermined the Court’s prior decision in favor of justiciability in Davis v. Bandemer, 478 U.S. 109 (1986). Although the Benisek litigation, on its facts, is really an Equal Protection controversy, the plaintiffs have brought it, and the panel has accepted it, under the guise of a First Amendment retaliation case. The continuing uncertainty regarding the justiciability of redistricting challenges on Equal Protection grounds is, no doubt, the motivation for the ruse, but the maneuver is actually a danger to the First Amendment and hardly advances the case or search for a justiciable standard for determining when a redistricting violates Equal Protection.
The Underlying Constitutional Landscape
Because the Elections Clause in Article 1, Sections 2 and 4, of the United States Constitution and state constitutions expressly grant to state legislatures broad power to prescribe the procedural mechanisms for holding congressional and state legislature elections, redistricting cases have always raised difficult questions regarding not just the geographic boundaries of election districts but also the boundary between state legislative powers and judicial power, state and federal, in actions to enforce the protections of the First and Fourteenth Amendments. Although a majority of the Supreme Court held that constitutional challenges to redistricting were justiciable in Bandemer, the Court struggled in the years that followed to articulate and apply an enduring standard for determining when a redistricting violates constitutional limitations.
In light of this experience, eighteen years later, in Vieth, a plurality of the Court ruled that redistricting actions were not justiciable because there were no judicially manageable standards for determining when constitutional limitations had been exceeded. Justice Kennedy denied the plurality the vote it needed for a majority on this point, however, stating that 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.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment) (emphasis added).
Justice Kennedy cautioned, however, that “[a] decision ordering the correction of all election district lines drawn for partisan reasons would commit federal and state courts to unprecedented intervention in the American political process.” Id. So, likewise, did the district court panel position itself in Gill:
We begin with a principle that is beyond dispute. State legislative apportionment is the prerogative and therefore a duty of the political branches of the state government. We must “recognize the delicacy of intruding on this most political of legislative functions.” Bandemer, 478 U.S. at 143. We also know that we cannot rely on the simple finding “that political classifications were applied.” Vieth, 541 U.S. at 307 (Kennedy, J., concurring in the judgment). Similarly, “the mere lack of proportional representation will not be sufficient to prove unconstitutional discrimination.” Bandemer, 478 U.S. at 132 (plurality opinion).
218 F. Supp. 3d at 883. In both Gill and Benisek, the district court panels held that judicial challenges to redistricting were justiciable and offered, in each panel’s view, reliable standards for determining constitutional violations attributable to redistricting. The panel’s view in Gill may be correct, but it is hardly the case in Benisek.
Gill and Benisek Compared and Contrasted
1. Gill – Judicial Protection of the Fair and Meaningful Functioning of Electoral Processes
In Gill, which involves state legislative redistricting, the three-judge court, after a careful consideration of prior Supreme Court precedents, formulated a three-element cause of action for unlawful congressional redistricting. It held:
[T]he First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.
218 F. Supp. 3d at 884. The court did not distinguish between the First Amendment and the Equal Protection clause as grounds for the cause of action.
The Gill cause of action, as applied in that case, is predominantly functional in its approach to distinguishing between acceptable and unconstitutional redistricting. It requires not just evidence proving legislators’ intention and purpose through redistricting to severely impair voting strength geographically on the basis of political affiliation but also evidence proving that the challenged redistricting has that effect and will continue to have that effect for the foreseeable future. Id. at 884-910. The second prong of this two-prong standard for assessing whether a constitutional violation has occurred renders the specified intention and purpose of the first prong necessary but not sufficient for finding a constitutional violation. Doing so no doubt reflects the district court panel’s recognition that “[t]he [Supreme] Court’s members appear to acknowledge that some level of partisanship is permissible, or at least inevitable, in redistricting legislation.” Id. at 885. The harm and violation only occurs, however, where redistricting renders the electoral process dysfunctional and unlikely self-correcting over reasonable time.
Importantly, the objective required for the intent and purpose in the first prong also focusses on the functionality of the electoral process. That is, the objective required is impairment of the fairness of the electoral process going forward, not partisanship or retribution and punishment for past voting. In other words, the unlawful objective required is not an intention and purpose to retaliate against or harm an opposing party or voters for their past voting or any past expression of their views but instead the intention and purpose to “entrench [the dominant p]arty in power.” Id. at 887. It bears noting that by focusing on intended effect, not motive for the intention, the panel avoids curtailing what is itself constitutionally protected, that is, animus born of political beliefs and views. Importantly, too, with respect to intention and objective, the panel recognized that avoiding overt or apparent partisanship did not suffice as a safe harbor for redistricting plans, noting that “[h]ighly sophisticated mapping software now allows lawmakers to pursue partisan advantage without sacrificing compliance with traditional districting criteria. A map that appears congruent and compact to the naked eye may in fact be an intentional and highly effective partisan gerrymander.” Id. at 889.
Finally, though the Gill panel did not give it a label, the level of proof on which the panel proceeded and at least implicitly required as to the first two prongs of its cause of action was on the “compelling” or “clear and convincing” evidence end of the spectrum, as opposed to the “preponderance” end. Its standard, as applied, relies on not just clear and convincing evidence of legislators’ intention and purpose through redistricting to severely impair voting strength geographically on the basis of political affiliation but also clear and convincing evidence that the challenged redistricting has that effect and will continue to have that effect for the foreseeable future. Id. at 884-910. Thus, in assessing intention and purpose, the court noted that when direct evidence of an entrenchment objective is not available because “the legislature … surreptitiously attempts to create legislation on the basis” of party affiliation, it is necessary to “engage in a careful inquiry of circumstantial evidence.” Id. at 890.
In Gill, the care that the panel took in finding an intention and purpose to entrench party control comprised an exhaustive examination of several iterations of the Wisconsin districting plan, including the history of each iteration’s development and, with the aid of expert testimony, the effects on likely voting outcomes resulting from each change to an iteration. The panel also extensively examined alleged shortcomings in the evidence, in order to assess the reliability of the evidence on which it based its findings of unlawful intention and purpose and unlawful effect.
2. Benisek – Continued Liability for Lawful Partisan Conduct and Continued Failure to Reach Unlawful Conduct
The facts and the theory of plaintiffs’ cause of action blessed by the district court panel in Benisek are best laid out not in Benisek II, the panel’s recent decision denying plaintiffs’ request for a preliminary injunction, but in its decision last year in Benisek I denying defendants’ motion to dismiss plaintiffs’ second amended complaint. There, the panel, unlike the panel in Gill, relied only on the First Amendment, not also Equal Protection, and opined that, by doing so, it offered a judicially manageable standard for adjudicating constitutional challenges to redistricting. In particular, in his majority opinion denying defendants’ motion to dismiss, Judge Niemeyer held that “the well-established standards for evaluating ordinary First Amendment retaliation claims can also be used for evaluating claims arising in the redistricting context.” 203 F. Supp. 3d at 596. Herein, however, lays both Benisek’s own threat to the First Amendment and its inefficacy as an approach for determining when a redistricting should be deemed unlawful under the Constitution.
To be sure, Benisek I correctly states that “[a] plaintiff bringing a garden variety retaliation claim under the First Amendment must prove that the responsible official or officials were motivated by a desire to retaliate against him because of his speech or other conduct protected by the First Amendment and that their retaliatory animus caused the plaintiff’s injury.” Id., citing Hartman v. Moore, 547 U.S. 250, 260 (2006) (“any … plaintiff charging official retaliatory action . . . must prove the elements of retaliatory animus as the cause of injury”). Benisek I also correctly elaborates:
With respect to the causation element, a retaliation claim requires proof of “but-for causation” or a showing that “the adverse action would not have been taken” but for the officials’ retaliatory motive. Hartman, 547 U.S. 260 …. “[A]ction colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway.” Id.
203 F. Supp. 3d at 596. Benisek I’s focus, however, on First Amendment retribution actions as the means for addressing unlawful redistricting risks its being both under inclusive in reaching what should be prohibited conduct and over inclusive, by reaching, as prohibited, conduct that should not be prohibited.
As applied, Benisek I treats unintended but foreseeable consequences of conduct as a specific intention to cause those consequences and, thereby, threatens protected First Amendment conduct. Those allegations in plaintiffs’ second amended complaint that do expressly mention retaliation and punishment are entirely conclusory. None of the specific facts alleged in that complaint warrant the conclusion that the defendants there acted with the objective of punishing or retaliating against voters because of the content of their views or party affiliation, except in the very trivial sense that, say, a competitor in the market place who, by an exorbitant but truthful and effective advertising campaign, succeeds in promoting its product or service and succeeds over another competitor. The losing competitor is harmed by the prevailing competitor’s conduct, maybe even driven out of business, but there is no punishment or retaliation involved. The competitor seeks to advance its own interests and, in doing so, is not punishing or retaliating against its competition, indeed, even if it does so by unlawful means.
The panel in Gill recognized this, carefully observing when it spoke of “intention” in connection with the cause of action on which it proceeded there that:
“A ‘discriminatory purpose’ … implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker … selected or reaffirmed a particular course of action at least in part, ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Pers. Admin. Of Mass. V. Feeney, 442 U.S. 256, 279 (1979); see also Chavez v. Ill. State Police, 251 F.3d 612, 645 (7th Cir. 2001) (quoting same).
218 F. Supp. 3d at 887.
The intention to advance one’s interests, even if by doing so one will knowingly diminish another’s interests, is not an intention to punish or retaliate. Were it otherwise, then every redistricting case in which partisanship has been a factor would ultimately be an act of punishment or retaliation, even though the Supreme Court has been clear that partisanship per se is not unconstitutional in the redistricting context. Indeed, even in denying defendants’ motion to dismiss, the panel in Benisek I itself recognized:
[B]ecause “[p]olitics and political considerations are inseparable from districting and apportionment,” a court cannot invalidate a map merely because its drafters took political considerations into account in some manner. See Gaffney [v. Cummings], 412 U.S. [735,] 753 [(1973)]. Indeed, such an approach “would commit federal and state courts to unprecedented intervention in the American political process.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).
203 F. Supp. 3d 590-91. If Benisek I means that an unlawful intention to punish or retaliate may be shown simply by being aware that a redistricting plan will significantly dilute some votes with respect to others, few redistricting plans will be safe from legal challenge. As Justice Breyer admonished in Vieth:
[T]raditional or historically-based boundaries are not, and should not be, “politics free.” Rather, those boundaries represent a series of compromises of principle–among the virtues of, for example, close representation of voter views, ease of identifying “government” and “opposition” parties, and stability in government. They also represent an uneasy truce, sanctioned by tradition, among different parties seeking political advantage.
541 U.S. at 360 (Breyer, J., dissenting). By focusing on entrenchment and structural dysfunction, the real harms to the political process that redistricting threatens, as opposed to the impetus leading to harm, Gill avoids Benisek I’s shortcomings and provides a constitutionally safe path to obtaining judicial relief, particularly in the most harmful redistricting cases.
To be sure, there are First Amendment cases where an individual or some group is targeted for harm or punishment because of a view they have expressed, but that is not what has allegedly occurred in the Benisek litigation. In such cases, the harm or injury is inflicted on account of a view expressed by word or conduct, not as the unintended consequence of conduct taken for some purpose other than harming or punishing. Indeed, unlike in the redistricting context, the harm or injury inflicted is not the diminishment of the view expressed. Rather, the harm or injury is distinct from the diminishment of the view and is inflicted because of the content of the expression of the view. In Elrod v Burns, 427 U.S. 347, 355-56 (1976), for example, the harm was the loss of a job on account of one’s party affiliation or support, not diminishment of the affiliation or support. Similarly in Rutan v. Republican Party, 497 U.S. 62 (1990), the harm inflicted was adverse employment actions made on account of political affiliation or support but not diminishment of that affiliation or support, as occurs with pernicious redistricting. See also Crawford-El v. Britton, 523 U.S. 574 (1998) (mishandling of prisoner’s personal property on account of his litigiousness); NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (economic tort liability imposed on organizer of peaceful business boycott to protest racial discrimination); Perry v. Sindermann, 408 U.S. 593 (1972) (state college’s failure to renew professor’s contract on account of his criticism of governing board); NAACP v. Button, 371 U.S. 415 (1963) (state statute punishing, as legal malpractice, organization’s solicitation of civil rights cases).
Not only does the First Amendment retribution analysis as applied in Benisek I and pursued in Benisek II risk proscribing conduct that should not be unlawful but also it risks failing to reach conduct that should be unlawful, that is, where partisan entrenchment has been achieved but by conduct whose objectives have not just been retaliation or by conduct whose purpose has been retaliation but veiled as otherwise. Benisek’s First Amendment approach to redistricting risks leaving unreachable and unremedied cases where evidence and experience make it clear that one party through its actions has managed successfully to entrench itself in the political process without open and notorious partisan conduct in doing so, just as the Gill panel, quoted above, was concerned. See Gill, 218 F. Supp. 3d at 889. Indeed, because the first prong of the Benisek cause of action requires proof of retribution or punishment and because retribution or punishment in the redistricting context (as opposed to pursuit of partisan interest) is a fiction, certainly on the facts plead so far in Benisek, the Benisek cause of action may be ultimately unavailing to plaintiffs in redistricting actions, even where partisanship in connection with a redistricting is quite evident.
The standard for unconstitutionality articulated in Benisek I also suffers from Bandemer’s shortfall. It says nothing about how to ascertain when the effects of partisanship in connection with redistricting are actionable and when they are not, the search for which such standard Justice Kennedy was unwilling to abandon in his concurring opinion in Vieth. Indeed, some of the phrasing in which Benisek I is couched shows it really to be an equal protection action at heart, aimed at one form of denial of equal protection, but without a standard, except in uselessly vague, qualitative terms, for determining when the denial is of enough consequence to be actionable. In particular, Benisek I states:
[V]ote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury. Instead, to establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. In other words, the vote dilution must make some practical difference.
203 F. Supp. 3d at 596-97. Unlike in Gill, where the vote dilution must be shown to result in entrenchment, this standard continues, as have the failed cases of the past, to leave courts and litigants without an objective means of verifying when vote dilution arising from partisanship, although making a difference, does or does not make a “practical difference.” None of this is to say that the facts and evidence alleged in and to be developed in the Benisek litigation, if scrutinized in the manner and according to the standard with which the Gill panel scrutinized the facts and evidence there, would not amount to a constitutional violation. It is just to say that the end run around justiciability essayed in Benisek will likely be no gain for redistricting, if not also a loss.
 Maryland citizens and voters commenced the Shapiro/Benisek litigation in November 2013, alleging that the 2011 redistricting plan violated their rights under the First Amendment and Article I, § 2, of the U.S. Constitution. A single district court judge granted the State’s motion to dismiss on jurisdictional grounds, Benisek v. Mack, 11 F. Supp. 3d. 516 (D. Md. 2014), summarily aff’d, 584 F. App’x 140 (4th Cir. 2014). The Supreme Court reversed, however, concluding that the plaintiffs’ constitutional challenge was not “wholly insubstantial” and that, therefore, it had to be decided by a district court composed of three judges, as required by 28 U.S.C. § 2284. Shapiro v. McManus, 577 U.S. ___136 S. Ct. 450, 456 (2015). Two of the original plaintiffs later agreed to their dismissal from the action.
 Section 1253 provides: “Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”
 There is room for doubt that the Supreme Court will take up Benisek II for briefing on the merits, argument and decision. The Supreme Court has declined to note probable jurisdiction of the appeal under 28 U.SC. § 1253 in Gill, instead postponing the question of jurisdiction until hearing on the merits. Given that the relationship of Gill to Benisek II is, at best, only arguable (as discussed below, the cases involve very different causes of action), it seems likely that a decision on the question of jurisdiction in Benisek II would be postponed at least until the Court’s decision in Gill.
Further, the posture of Benisek II before the Court is a decision denying a preliminary junction, not a decision on the merits, and, unlike Gill, not the final opinion and order of a three-judge panel on the merits after trial. Accordingly, dismissal of the jurisdictional statement in Benisek II, returning the case to the three-judge panel for further proceedings on the merits, upon the Court’s decision in Gill, would not be surprising or unreasonable, particularly if, in Gill, the Court retreats from the ground staked out for nonjusticiability in Vieth v. Jubelirer, 541 U.S. 267 (2004), discussed below. The interlocutory status of Benisek II below is all the more problematic for jurisdiction being noted because, as also discussed below, plaintiffs are proceeding on a theory, novel as applied, of retaliatory burdening of representational rights under the First Amendment, without a full and final determination of the facts and law in that case. Indeed, the Court itself acted very recently to keep in place the Texas state and federal redistricting plans by imposing a stay on two lower court orders to revise the plans in time for the 2018 midterm elections. Orders in Pending Case, Abbott v. Perez, Nos. 17A225 and 17A245 (U.S. filed Sept. 12, 2017). Given that the Court ordered a stay of redistricting challenges in that case, it does seem unlikely that the Court would be in any hurry to examine the denial of a preliminary injunction in Benisek II, thereby temporarily blocking the redistricting challenge there.
 Defendants/appellees’ deadline to respond to plaintiffs/appellants’ jurisdictional statement is October 31, 2017.
 See Steve Klepper’s post in this blog on August 24, 2017.
 Gill, 218 F. Supp. 3d at 884 (“It is clear that the First Amendment and the Equal Protection Clause protect a citizen against state discrimination as to the weight of his or her vote when that discrimination is based on the political preferences of the voter.”).
 A review of the panel’s opinion at the pages cited will demonstrate that the evidence before the panel satisfied a clear and convincing standard.
 See also Gill, 218 F. Supp. 3d at 903 (describing the evidence before it as a “firm case” for discriminatory effect that was “further bolstered” by other probative evidence).
 See Vieth, 541 U.S. at 286; Gaffney v. Cummings, 412 U.S. 735, 753 (1973).
 Compare Benisek I, 503 F. Supp. 3d at 597 (“[W]hat implicates the First Amendment’s prohibition on retaliation is not the use of data reflecting citizens’ voting history and party affiliation, but the use of such data for the purpose of making it harder for a particular group of voters to achieve electoral success because of the views they had previously expressed.”) (emphasis added); id. (“[T]he plaintiff must produce objective evidence, either direct or circumstantial, that the legislature specifically intended to burden the representational rights of certain citizens because of how they had voted in the past and the political party with which they had affiliated.”) (emphasis added).