Lamone v. Benisek: Round Three in the Supreme Court for Partisan Gerrymandering Challenges to Maryland’s Sixth Congressional District
The Supreme Court will hear oral argument on March 26, 2019 for the third time in the ongoing legal challenge to the 2011 changes in Maryland’s Sixth Congressional District. Lamone v. Benisek, No. 18-726 (“Benisek”). Boundary changes to the Sixth District were made after the 2010 census, and Appellees in Benisek successfully challenged before a three-judge panel of the federal district court below the changes as retaliation for their voting as Republicans in the Sixth District during past general elections. Benisek will be argued in conjunction with Rucho v. Common Cause, No. 18-422 (“Rucho”), in which, in addition to the First Amendment grounds asserted in Benisek, Appellees successfully challenged before another three-judge court, on Equal Protection grounds, South Carolina’s Congressional redistricting after the 2010 census.
The elements of a First Amendment based prima facie claim in Benisek, as articulated by the three judge court there, are:
Memorandum Opinion, Benisek v. Lamone, No. 1:13-cv-03233-JKB, at 37 (D. Md. Nov. 7, 2018).
The elements of an Equal Protection based prima facie claim in Rucho, as articulated by the three-judge court there, are that the redistricting:
Memorandum Opinion, Common Cause v. Rucho, No. 1:16-CV-1026, at 128 (M.D.N.C. Aug. 27, 2018) (“Rucho Opinion”)
The difference between the first element of each claim is apparent on the face of the statement of each. Under the First Amendment claim, the required state of mind is one of maliciousness, that is, retaliation on account of another’s viewpoint. Under the Equal Protection claim, the required state of mind is not maliciousness but merely awareness that one’s actions will have the effect of vote dilution (“on the basis of [(not because of)] their political affiliation”). In their application, the first elements further diverge in their import, because the First Amendment claim, in its application, largely equates partisanship with viewpoint retaliation, even though there is a marked difference between furtherance of one’s partisan interests in disregard of another’s, which is not malicious, and an intention to harm another’s interests, simply for the sake of inflicting harm, which is exclusively malicious.
The difference between the claims as to their second element is not apparent on the face of the statement of each but is very apparent in their manner of application, qualitatively assessed in Benisek and strongly quantitatively assessed in Rucho. In addition, as applied in Rucho, the second element requires some significant level of temporal persistence in the challenged dilution. See Rucho Opinion, at 136-37. The First Amendment claim in Benisek, by contrast, would allow episodic dilutions, consistent with that claim’s driving rationale of retaliation.
The differences between the First Amendment and Equal Protection claims, in both their statement and, more so, their application, will likely bear on the continuing hurdle to the Court’s reaching their merits, and that is whether these partisan gerrymandering claims are justiciable. As discussed in an April 24, 2018 post to this Blog, the Supreme Court left open this question in Vieth v. Jubelirer, 541 U.S. 267 (2004). There, Justice Kennedy declined to join Justice Scalia’s four-justice plurality opinion, maintaining that such claims, at least under the Fourteenth Amendment’s Equal Protection Clause, were not justiciable because, in the plurality’s view, there were no judicially discernible and manageable standards by which political gerrymandering cases could be decided using that provision. That view ran contrary to and proposed to overrule what, technically, is still the controlling precedent, the Court’s 6-3 decision in Davis v. Bandemer, 478 U. S. 109 (1986), holding that partisan gerrymandering claims under the Equal Protection Clause are justiciable.
In his separate opinion in Vieth, Justice Kennedy, though concurring in the Court’s judgment, declined fully to join the plurality’s view, 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.” 541 U.S. at 306. Justice Kennedy suggested:
The First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.
Id. at 314. The four dissenting justices in Vieth would have held that constitutional challenges to partisan gerrymandering were justiciable under the Fourteenth Amendment.
Interestingly, in Benisek, a redistricting favoring Democratic voters was invalidated below, but in Rucho, a redistricting favoring Republican voters was invalidated. Accordingly, it would appear at least very difficult for the current Court to hold that constitutional challenges to partisan gerrymandering are not justiciable, regardless of the basis for challenge, without also reversing and vacating the decisions below in both Benisek and Rucho.
The April 24, 2018 post to this Blog suggested that the challenge in Benisek, based on the First Amendment alone, should be considered nonjusticiable, because it offers no manageable standard for separating the wheat of redistricting challenges from what would be abundant chaff. Instead, the First Amendment would become a fountainhead for considerable and constant litigation against virtually every redistricting to come, for any diminishment in voting strength of the opposing party’s members achieved by the party controlling redistricting could be shoe-horned into allegations of political retaliation and give rise to litigation and because the First Amendment claim, as applied, treats vote dilution on the basis of political affiliation with vote dilution because of political affiliation. Under the First Amendment, after all, any injury whatsoever to the interests it protects is cognizable.
Consider, for example, the established case law preventing prior restraints on speech, which essentially views any pre-publication impairment of speech that the First Amendment protects, including temporary restraints, as actionable, even if the speech to be restrained, once expressed, may be subject to criminal or civil liability. See Nebraksa Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976) (“A prior restraint … has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication ‘chills’ speech, prior restraint ‘freezes’ it at least for the time.”); New York Times Co. v. United States, 403 U.S. 713 (1971). It is also notable in this regard that the First Amendment interests involved are political speech, arguably the speech most valued and, therefore, most protected under the First Amendment. See Elrod v. Burns, 427 U.S. 347, 356 (1976) (“[P]olitical belief and association constitute the core of those activities protected by the First Amendment.”); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270 (1964); Near v. Minnesota, 283 U.S. 697, 713-14 (1931).
Indeed, the Vieth plurality recognized the threat of unbridled litigation: “Moreover, the fact that partisan districting is a lawful and common practice means that there is almost always room for an election-impeding lawsuit contending that partisan advantage was the predominant motivation ….” Vieth, 541 U.S. at 286 (emphasis in original). Likewise, as recounted in the April 24, 2018 blog post, some justices’ questions during oral argument last year in Benisek evidenced the same concern, though, after vacating a preliminary injunction below as improper, the Court remanded the case, without reaching the justiciability issue.
The State of Maryland’s recently filed opening brief in Benisek nicely elaborates the manageability deficiency and the risk of burgeoning litigation under the First Amendment theory of gerrymandering voting harm:
[I]n plaintiffs’ view—adopted by the district court—the problem can be solved by using the . . . elements of “a garden variety retaliation claim,” . . . and by simply deeming the injury to be vote dilution (for their representational rights claim) or some “burden on their associational rights” (for their associational-rights claim). . . .
But plaintiffs’ test does not offer a standard that promises to be limited, precise, clear, manageable, politically neutral, and reliably fair. Instead, the first element of the test (intent) deems any degree of partisanship excessive, while the second element (injury) perpetuates the existing problem by embedding a standardless excessiveness inquiry. . . .
[The intent] element, though phrased in terms of retribution for plaintiffs’ past voting and political affiliation, essentially asks whether those who adopted the plan intended to favor one political party over another. . . . Any degree of partisan intent and almost all political aims of any nature will suffice, because any intent to draw a boundary in a way that marginally benefits one political party, even as it serves another redistricting goal, can be characterized as an intent “to impose a burden” on members of a competing political party “because of how they voted or the political party with which they were affiliated.”
None of this is to say that, arguably at least, there has not been a wrong to be righted in Benisek. It is not inconceivable that a Fourteenth Amendment challenge to the redistricting in Benisek, assessed using the methodologies employed in Rucho, would have also succeeded. Counsel for the Appellees in Benisek, for strategic reasons, however, decided not to include a Fourteenth Amendment challenge, in view of the Court’s prior leanings in Vieth on the matter of Fourteenth Amendment justiciability and the conservative makeup of the current Court. Instead, counsel chose to heed Justice Kennedy’s suggestion in Vieth that the path to a judicially manageable standard might be found through the First Amendment and precedents involving impermissible burdening of First Amendment interests.
In contrast to the First Amendment claim, objective and manageable standards for assessing whether the degree of vote dilution effected by a redistricting violates Equal Protection would seem to be readily available by using the methodologies now used and accepted in Equal Protection challenges to redistrictings involving race. Justice Stevens advanced this approach in his dissent in Vieth. 541 U.S. at 321-27. Indeed, the very advances in computer power and applications for data gathering, analysis and graphing that permit redistricting bodies expediently to prepare districting maps that enhance the likelihood of one party’s success at the ballot box should also provide the same level of ability and facility to determine and quantify the impacts of various redistricting proposals on voting power, in order to separate material and inveterate voting power distortions from incidental harms. See Vieth, 541 U.S. at 212-13 (Kennedy, J., concurring).
To be sure, in Vieth, the plurality rejected, for purposes of assessing the constitutionality of redistricting with respect to voter strength, standards and methodologies proposed for assessing the constitutionality of redistricting with respect to race. It gave as one reason for doing so the view that the Constitution permits some reference to partisan interests in the districting process, so that strict scrutiny is not applicable to Equal Protection claims based on political affiliation. The rationale of the First Amendment claim that prevailed below in Benisek and Rucho (essentially, that any significant and adverse regard to political affiliation in making districting decisions is tantamount to retaliation and First Amendment harm) undercuts the Vieth plurality’s notion that strict scrutiny standards for assessing racial harm are inapplicable to assessing, under Equal Protection, harm to voter strength that a redistricting effects.
Indeed, discriminatory injury to First Amendment interests, has, like race and religion, always been subject to strict scrutiny under Equal Protection. Justice Stevens observed as much in Vieth in response to the plurality’s view that some reference to partisan interests in connection with redistricting has been and is acceptable, stating that the Court’s precedents “have squarely rejected the notion that a ‘purpose to discriminate on the basis of politics’ . . . is never subject to strict scrutiny.” Vieth, 541 U.S. at 324. The Court has long maintained that discriminatory conduct that impacts fundamentally protected interests, such as First Amendment interests, is subject to strict scrutiny under the Equal Protection Clause. See Bush v. Gore, 531 U.S. 98 (2000); San Antonio School Dist. v. Rodriquez, 411 U.S. 1, 17 (1973) (state action that “impinges upon a fundamental rights explicitly or implicitly protected by the Constitution . . . requir[es] strict judicial scrutiny”); M.L.B. v. S.L.J., 519 U.S. 102 (1996); Kramer v. Union Free School Dist., 395 U.S. 621 (1969); Harper v. Virginia State Bd. of Elections, 383 U.S. 63 (1966).
With regard to Equal Protection challenges, it is doubtful today that there is or should be any difference between the scrutiny and, therefore, methodology applied to alleged racial gerrymandering and the same scrutiny and methodology applied to alleged partisan gerrymandering. In this age of computational power and sophisticated software applications, any commonly applied methods for measuring the dilution of some group’s vote that is effected by a redistricting should be invariant in their results, regardless of whether the defining characteristic of that group is race, religion, political affiliation, or gender. In short, if Equal Protection challenges to voter dilution based on race are justiciable, so are such Equal Protection challenges based on political affiliation. At the very least, it cannot be said, as the Supreme Court has been saying, that there are no judicially manageable standards for assessing partisan gerrymandering challenges under Equal Protection, whatever other bases might be offered for holding such challenges nonjusticiable.
The Vieth plurality countered, however, that political affiliation, unlike race, is not immutable over time and is difficult to determine geographically. Voters, for example, can and do change affiliation from time to time or have multiple affiliations, depending on the subject. The distinction, however, is not material or, at least, not insurmountable. Geographic voting patterns or voter registration with regard to party affiliation do function as an accurate proxy for measuring party voting power in a given area. Even, geographic voting power with regard to race changes over time on account of mobility and for other reasons.
First Amendment challenges to redistricting based on strained and subjective notions of retaliation, as in Benisek, should be rejected not just on justiciability grounds but also because their rationale would likely lead to findings of unconstitutional harm where Equal Protection challenges in the same case would not, even though the relevant harms in First Amendment vote dilution challenges are at their core and in substance Equal Protection harms. Put otherwise, it may be that, given the qualitative nature of the harms under First Amendment theory compared to quantitative measures of voting power dilution under Equal Protection theory, a First Amendment challenge to a given redistricting may or may not yield its invalidation, whereas an Equal Protection challenge more likely always would or always would not.
Ostensibly, the assessment of harm under Equal Protection theory focuses on the discriminatory effects of redistricting on voting power, whereas the assessment of harm under First Amendment theory focuses on depressive effects on representational and associational interests. Given that these depressive effects, however, are allegedly and ultimately attributable to dilution of voting power (the more a party’s vote is diluted, the more the impairment of representation and the more the decline in its voters’ interest in politics), it would seem that Equal Protection is the best approach for distinguishing cases of material and, therefore, unconstitutional voting power distortions from partisan conduct incidental to and, therefore, lawful in any redistricting.
Because Benisek involves only dubious claims of retaliation under the First Amendment, the judgment below there, if not simply vacated on grounds of justiciability, should, at least, be vacated and remanded for reconsideration in light of Rucho, should the Court sustain Equal Protection but not First Amendment challenges to redistricting there.
 The Sixth District litigation began in November 2013, with a complaint seeking the empanelment of a three-judge federal district court, on grounds that Maryland’s 2011 redistricting plan violated the First Amendment and Article I, § 2, of the U.S. Constitution. See 28 U.S.C. § 2284. The district court granted the state’s motion to dismiss on jurisdictional grounds, and the Fourth Circuit summarily affirmed. 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 and remanded, however, concluding that plaintiffs’ constitutional challenge was not “wholly insubstantial” and was, therefore, within a three-judge court’s jurisdiction. Shapiro v. McManus, 577 U.S. ___, 136 S. Ct. 450, 456 (2015). In round two before the Supreme Court, after the district court ruled on remand that plaintiffs’ First Amendment partisan gerrymandering claim was justiciable but denied plaintiffs a preliminary injunction, the Court avoided the opportunity to address the merits of plaintiffs’ claim, ruling instead that plaintiffs were not entitled to a preliminary injunction against use of the 2011 redistricting in the 2018 general election, because they had unduly delayed in seeking that relief. Benisek v. Lamone, 585 U.S. ___, 138 S. Ct. 1942 (2018).
 The Governor’s Emergency Commission on Sixth Congressional District Gerrymandering has recently proposed a revised Sixth District map for the 2020 general elections, in order to address the federal district court’s invalidation of the existing map. See “Commission picks new map for Maryland’s gerrymandered 6th District,” Wash. Post (Mar. 2, 2018). It is unlikely that the proposal will be adopted, if at all, before the March 26 Supreme Court argument date or before the Court decides the case, likely no later than June 2019. Even if it were, given the Court’s apparent desire to address gerrymandering further, indicated by its entertaining the Benisek and Rucho appeals, it is a good bet that the Court would not declare the case moot, invoking the “capable of repetition but evading review” exception to mootness, which has been applied in election cases. See, e.g., Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson v. Celebrezze, 460 U.S. 780, 784 n.3 (1983); Moore v. Ogilvie, 394 U.S. 814, 816 (1969).
 Similarly, the three-judge district court in Rucho stated the prima facie elements to be “discriminatory intent” and “discriminatory effects.” Memorandum Opinion, Common Cause v. Rucho, No. 1:16-CV-1026, at 259 (M.D.N.C. Aug. 27, 2018),.
 Both claims also include as a third element the absence of a cause or justification for the vote dilution that is independent of the harm the claim, whether First Amendment or Equal Protection based, is intended to address. Because the initial burden of going forward to satisfy this element would seem to be on the defendant, however, the element is not necessary for a prima facie case. The three-judge court said as much in Rucho. Rucho Opinion at 141, 274.
 One may argue that the litigation hair trigger offered by Benisek-type First Amendment claims is not antithetical to First Amendment interests, because it, as a practical matter, operates to retard consideration or implementation of even the slightest changes in voting power effected in a partisan context. By the same token, however, it also chills partisan speech and conduct, whose protection, again, is paramount under the First Amendment. Whether some change in voting strength is material, therefore, is better addressed with the quantitative and, therefore, more objective tools available with Equal Protection analysis, instead of the subjective assessments that characterize the First Amendment analysis under review. To be sure, such Equal Protection methods could be made an element of First Amendment claims by, for example, using Equal Protection methodology to assess whether the burdening of partisan interests in a particular case violates the First Amendment, but that is essentially recognizing that it is ultimately Equal Protection, not First Amendment, claims that are justiciable. In addition, assessing, in the inflammatory light of artificial notions of retaliation, the significance of changes in voting power, risks biasing those assessments in favor of finding constitutional wrongs.
 See “1-0? Supreme Court Win Likely for Big Law Associate,” Bloomberg Bureau of National Affairs (Nov. 1, 2015); “D.C. law student takes case against Md. gerrymandering to Supreme Court,” Wash. Post (Nov. 10, 2015).
 With respect to the growing capability and sophistication of computer based analysis of voting demographics, Justice Kennedy observed in Vieth, 541 U.S. at 212-13:
Computer assisted districting has become so routine and sophisticated that legislatures, experts, and courts can use databases to map electoral districts in a matter of hours, not months. See, e. g., Larios v. Cox, 305 F. Supp. 2d 1335 (N.D. Ga. 2004) (per curiam). Technology is both a threat and a promise. On the one hand, if courts refuse to entertain any claims of partisan gerrymandering, the temptation to use partisan favoritism in districting in an unconstitutional manner will grow. On the other hand, these new technologies may produce new methods of analysis that make more evident the precise nature of the burdens gerrymanders impose on the representational rights of voters and parties. That would facilitate court efforts to identify and remedy the burdens, with judicial intervention limited by the derived standards.
 According to the plurality, “[a] purpose to discriminate on the basis of race receives the strictest scrutiny under the Equal Protection Clause, while a similar purpose to discriminate on
the basis of politics does not,” 541 U.S. at 293, and “[t]o say that suppression of political
speech (a claimed First Amendment violation) triggers strict scrutiny is not to say that failure to give political groups equal representation (a claimed equal protection violation) triggers strict scrutiny.” Id. at 294. Whether or not equal protection guarantees political groups equal representation, however, is not the issue. The issue is whether redistricting conduct whose effect is to significantly dilute the voting strength with respect to political affiliation constitutes unlawful discrimination in violation of the Equal Protection Clause.
 Given that there is no practical difference between assessing vote dilution due to racial gerrymandering and dilution due to partisan gerrymandering, the Court’s assessment of the justiciability of partisan gerrymandering claims arguably has become more attitudinally than practically based. For persuasive commentary that this “narrative of nonintervention” has become nothing more than a talismanic judicial incantation for avoiding assessing constitutional challenges to partisan gerrymandering, ultimately counterproductive to the objective of judicial restraint rather than intervention, see Charles & Fuentes-Rohwer, “Judicial Intervention as Judicial Restraint,” 132 Harv. L. Rev. 236 (2018). In other contexts, the Court has not shied from applying even amorphous standards for distinguishing between lawful and unlawful conduct. See, e.g., Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (implying a constitutionally based cause of action for unreasonable searches and seizures).