Oral Argument in Benisek v. Lamone: An Alleged Wrong Without a Remedy, Regardless?
The Supreme Court’s most pressing dilemma today is, arguably, the choice between heeding constitutional and practical considerations of justiciability, on the one hand, and, on the other, applying constitutional cures for the evident dysfunction by which partisan redistricting has defiled electoral processes and our democracy. The views of the majority of the electorate on several major policy issues facing this country are demonstrably out of line with the current holders of power in Congress and the Presidency, gun control and health care, being, perhaps, the best examples of this.
In other matters involving the integrity of the electoral process, the Court has often not cowed at confronting the dilemma. See, e.g., Citizens United v. FEC, 558 U.S. 310 (2010); Elrod v. Burns, 427 U.S. 347 (1976); Buckley v. Valeo, 424 U.S. 1 (1976); Reynolds v. Sims, 377 U.S. 533 (1964) and Baker v. Carr, 369 U.S. 186 (1962). The institutional risk, still, to federal courts is their supplanting state legislatures in a function that the Constitution expressly assigns to those bodies and the assumption of that function’s burdens by a judiciary ill-equipped, ill-informed and ill-positioned to perform it.
Most recently, the Court recurred to the problem of reviewing redistricting challenges in last month’s oral argument in Benisek v. Lamone, 2017 U.S. Dist. LEXIS 136208 (D. Md. Aug. 24, 2017), appeal docketed, No. 17-333 (U.S. Sept. 1, 2017). The Benisek case arose here in Maryland from the congressional redistricting after the 2010 census and was previously discussed in this blog on September 29, 2017 and June 6, 2016. The March 28 oral argument was not short on debate between counsel and the Court and among the justices themselves about both justiciability concerns and the Court’s ability to establish principles for ascertaining when one party’s partisanship prerogative in redistricting has degraded into the polity’s poison.
Potential constitutional cures for electoral dysfunction have been identified in both the Equal Protection Clause and the First Amendment, the former, most currently, in the Court’s pending consideration of Gill v. Whitford,  which was argued last October, and the latter, most currently, in Benisek. Unlike the oral argument on October 3, 2017 in Gill, where the Court focused on the utility and soundness of quantitative tests for ascertaining when legislative allocation of voting power was no longer equal, the argument in Benisek focused on whether workable principles exist for determining whether legislative treatment of voting power unconstitutionally infringes interests that the First Amendment protects.
Appellants’ counsel staked out early in his argument Appellants’ challenge: “government officials may not single out particular individuals for disfavored treatment on the basis of the views that they have expressed at the ballot box in prior elections.” The justiciability of challenges to legislative redistrictings, however, remains as much and as major a concern of the Court as it was in in Vieth v. Jubelirer, 541 U.S. 267 (2004). In Jubelirer, the Court undermined, but did not overrule, its prior decision Davis v .Bandemer, 478 U.S. 109 (1986), which held that redistricting was a justiciable matter. The primary justiciability problem that redistricting challenges pose for the Court is whether, as Justice Breyer put it during argument, “there [is] a practical remedy that won’t get judges involved in every — or dozens and dozens and dozens of very important political decisions.”
Not surprisingly, therefore, questions to counsel for Appellants about whether the Court should even consider their case occupied fully one third of the time taken in counsel’s opening argument. Questions posed on matters of mootness, fact of injury and undue delay, all within the broad category of concerns that justiciability comprises, evidenced that the Court has more than ample grounds to avoid decision in Benisek on the merits. Indeed, Justice Breyer, at one point in the argument, questioned whether it would be better for the Court to set Gill and Benisek for reargument with argument after allowing briefing in Common Cause v. Rucho, 279 F. Supp. 3d 587 (D.N.C. 2018), application docketed, No. 17A745 (Jan. 12, 2018). That case raises both Equal Protection and First Amendment challenges to redistricting in North Carolina.
First Amendment challenges to redistrictings seem particularly to pique the Court’s concerns about justiciability. Expressing his own concern in particular about the First Amendment theory of Appellants’ redistricting challenge, Justice Alito pointedly wondered during argument “how any legislature will ever be able to redistrict.” He demurred to counsel’s “answer . . . that favoring the political party of the majority in the legislature in a way that’s more than de minimis is a violation of the Constitution”
Similarly, Justice Ginsburg was concerned that any redistricting that resulted in significant vote dilution could be challenged under Appellants’ theory, which, in effect, posits districts before redistricting as the baseline from which to measure injury to First Amendment interests. Even legislative efforts through redistricting to remedy what was gerrymandering in the first place could, Justice Ginsburg observed, be stymied.
Justice Kagan seemed to express doubts with the use of a hypothetical. She proposed “taking 15,000 of the bluest blue voters [in one district], [and] parking them in this [other] district in order to convert the district from a safe Republican district to a competitive district. How do you analyze that?” Because, under Appellant’s standard, this hypothetical redistricting would necessarily have involved looking at and acting on the way citizens previously voted in the two districts, the innuendo in Justice Kagan’s question, of course, was why Republican voters in each of the two districts wouldn’t have a grievance? In other words, under Appellant’s First Amendment standard, courts would become embroiled in controversies whose genesis was purely and simply an objective to improve the functioning of the electoral process.
The notion that redistricting is an “attack” on First Amendment values when it is done in consideration of past voting patterns, as is always and unavoidably the case, is more an overreaching play on words, if not essentially a fiction. In a multitude of contexts, a person or a group will always seek to maximize the spoils of his or their advantages relative to others. That is not an “attack” on the interests of others, even on the interests of a minority, or, more to the point here, a “purpose” to disadvantage First Amendment interests. It is only the tendency to use advantages to maximize and protect interests, without any purpose necessarily to punish the interests of others. It is not an assault on those whose interests or values are simply collaterally diminished.
Any objectively measurable normative limitations on the aggregation of political advantage, therefore, are to be found not in the First Amendment’s protection of expressive freedom but in the constitutional meaning of Equal Protection, on its face, a quantitative concept. Any normative limitations based on subjective and, therefore, objectively immeasurable notions of intent to injure and degree of injury to First Amendment values are misplaced and unmanageable in the redistricting context. It is perhaps this realization, implicit in the questions of most of the Justices during the Benisek argument, that accounts for Justice Kennedy’s handful of questions during argument, even though it was Justice Kennedy, who first suggested, in Vieth, 541 U.S. at 314, that a manageable judicial standard for reviewing challenges to redistricting might be found in already established First Amendment principles. The First Amendment may simply not turn out to be a host for divining those standards that led Justice Kennedy in his concurrence in Vieth to hold out for the possibility of justiciable standards for reviewing the constitutionality of redistrictings.
The existential problem for a democracy is the reality that political advantage at any given time, whether in the form of wealth or voting power, is not necessarily commensurate with the will of the majority. For this reason, the focus should not be on the effect of redistricting on First Amendment interests but on the well-functioning of democracy. That is, whether, over time, the majority is able to effect its will. Inevitably, this should lead to primary concern not about the protection of First Amendment interests but to concern about protecting the interest essential ary for the preservation and health of a democracy, the individual value of the right to vote, to have an equal say in how one will be governed and what interests government will advance.
The First Amendment is, foremost, about the privilege of expression and permissible burdens on its exercise. Its doctrines, however, harbor no edicts about equality or the permissible allocation of political advantage, particularly given that, as Justice Alito observed during argument, “this Court [has] said time and again you can’t take all consideration of partisan advantage out of districting.” The constitutional propriety of any allocation of political advantage is the province of Equal Protection and, understandably therefore, why judicial review of the functioning of the electoral process began with the “one person, one vote” standard enunciated last century in Gray v. Sanders, 372 U.S. 368, 381 (1963).
Although the tenor of the Court’s questioning during oral argument raised substantial doubts about the capacity of Appellants’ First Amendment theory of constitutional wrong to provide a suitable standard for judicial review, the remarks of a majority of the Justices did suggest, to greater and lesser degrees, their belief that a constitutional wrong had been committed with the changes made to Maryland’s Sixth District after the 2010 Census. Given this discomforting set of circumstances, one would reasonably have expected during oral argument some focus from the Court on whether Maryland’s redistricting would have passed muster under the quantitative types of Equal Protection tests under consideration in Gill, obviating the need for the qualitative, somewhat “I-know-it-when-I-see-it” standard being advanced in Benesik.
Justice Breyer surmised that Maryland’s Sixth District would fail those Equal Protection tests, prompting him to note more than once during argument that the Court’s better course might be to set Benisek and Gill for reargument with argument after briefing in Rucho. Were it to do so, the Court could, of course, ask for briefing specifically on how the circumstances in Benisek would fare under the Equal Protection analyses involved in Gill or other analytical equal protection analyses. At any rate, whether or not Maryland’s current Sixth Congressional District would pass muster under one or more potentially emerging analytical standards under Equal Protection, better to leave the hard case unaddressed, particularly given Benisek’s interlocutory status, than to make bad constitutional law. For that matter, even if the Sixth District would pass muster, might that only be because, viewed at the state instead of district level, Equal Protection would not be violated? That question, too, was raised in Benisek during oral argument but will have to await comment for another time.
 Transcript of Oral Argument, Benisek, at 3 LL 20-23 (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/17-333_3e04.pdf) (Mar. 28, 2018) (“Benisek Tr.”).
 See also Transcript of Oral Argument, Gill (https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1161_bpm1.pdf) (Oct. 3, 2017).
 Benisek Tr. at 26 LL 16-19.
 See id. at 3 L 24 – 14 L 14.
 Id. at 25 L 24 – 27 L 7. At the moment, having denied Applicants’ motion to construe their application for a stay pending appeal as a jurisdictional statement, the Court is holding further action in Rucho pending disposition of Gill and Benisek.
 Id. at 14 LL 20-21.
 Id. at 16 LL 22-25.
 Id. at 20 L 22 – 21 L 11.
 Id. at 30 LL 18-23.
 As counsel for Appellees, Steven M. Sullivan, Maryland Solicitor General put it, “[W]hat they’re really relying on is the intent, which they would equate with retaliation. But it’s the same intent which the court recognized in Bandemer is ever present.” Id. at 39 LL 7-11.
 Vieth, 541 U.S. at 306 (Court should “not foreclose all possibility of judicial relief if some limited and precise rational were found to correct an established violation of the Constitution in some redistricting cases”) (Kennedy, J., concurring in the judgment) (emphasis added).
 Id. at 16 LL 1-4.
 Id. at 26 LL-13-15 (“It seems like a — a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering.”) (Breyer, J.); at 38 LL 2-4, 7-9 (evidence that Maryland acted for no purpose other than to dilute Republican voting strength in the Sixth District is “some pretty damning evidence” by “ your own governor . . . saying that he felt duty-bound to ensure that his party won.”) (Sotomayor, J.); at 39 LL 18-21 (“[L]let’s say you’re right, that they have not shown us how much is too much . . . . But we don’t have to . . . deal with [that in] this case because, however much you think is too much, this case is too much.”) (Kagan, J.); at 39 L 25 – 40 L 4 (“from the Governor, from Congressman Hoyer, people were very upfront about what they were trying to do here, which was to create another Democratic district.”) (Kagan, J.); at 42 LL 9-12 (“No other reason for doing this other than partisanship. That’s an example of extreme gerrymandering.”) (Breyer, J.); at 48 L 23 – 49 L 7 (“Is it appropriate in a case like this to look at what the district looks like in terms of the boundaries and the extent to which it complies with traditional redistricting criteria? I mean, part of the issue here is you have people from, you know, Potomac joined with people from the far west panhandle. I mean, they both have farms but the former, hobby farms.”) (Roberts, C.J.); at 51 LL 5-8 (“[I]t seems to me that what we have here is ‘max-Democratic.’ And if ‘max-black’ was no good, why should ‘max-Democratic’ be okay?”) (Ginsburg, J.).
 Id. at 44 LL 7-21.
 The appeal in Benisek, being from the denial of a preliminary injunction by a three-judge district court panel, is interlocutory.