Benisek v. Maryland Recap – The Forgotten Early 1900s Congressional Statute and How this Lafollette “Progressive Era” Reform, Supported Federal Judicial Interests against Political Party Gerrymandering
By Michael Wein
Last June in Ocean City, Maryland, the Supreme Court panel discussion for the Maryland State Bar Association (MSBA) convention, (which included guest panelists Kelsi Corkran, Prof. Shon Hopwood and Beth Brinkman) seemed to agree on one thing–the two pending political gerrymandering cases of Benisek v. Maryland and Gill v. Whitford, were likely to be the blockbuster decisions for the Court. That didn’t happen last year, with the Supreme Court not deciding the merits of those cases and remanding the Benisek case on procedural grounds.
Still, that left open the possibility the merits of the legal issue would come up again this year, and a decisive Majority opinion, particularly with the North Carolina Rucho case waiting in the wings. Unfortunately, for those who have studied the corrupting consequences on democracy and good government created by severe partisan redistricting, a year didn’t help. Instead, the clarity the Supreme Court decided, came in the form of a 5-4 opinion consolidating the Redistricting challenge of Benisek with that of North Carolina’s Rucho decision, concluding partisan gerrymandering will not be addressed by the Federal Courts as a “political question.”
As MdAppBlog contributor Alan Sternstein explained in a piece last week analyzing Rucho, excessive partisan gerrymandering, would appear to be quite justiciable, and logically makes sense, consistent with prior Supreme Court cases. Justice Elena Kagan’s Dissent, in favor of justiciability, discussed the little doubt, without Court intervention, the potential permanent possibility, of the lack of competitive Congressional elections, and an unnatural number of elected partisan Democrats and Republicans, as opposed to moderates, centrists, and independents. Chief Justice John Roberts’ Majority Opinion, perhaps ironically as a more optimistic perspective, in determining that the issue was non-justiciable in the federal courts, seemed to support alternatives, through Congressional action, or through the “state by state” approach of non-partisan redistricting Commissions. This piece focuses on the Congressional action alternative, particularly as related to the history of the Populist movement also known as the “Progressive Era” movement from the early 1900s. Part Two, when published will discuss the “state by state” approach alternative in more detail, both historically, and how that can be a guide for today.
The Importance of Congress’ Redistricting Statutes in 1901 and 1911 Including “Compactness.”
The decision issued on Rucho v. Common Cause, et al., (Slip Op. at 9-10), the only discussion of the Congressional statutes was one paragraph in Chief Justice John Roberts’ Majority opinion, with no mention in Justice Kagan’s Dissenting opinion.
Congress has regularly exercised its Elections Clause power, including to address partisan gerrymandering. The Apportionment Act of 1842, which required single- Opinion of the Court member districts for the first time, specified that those districts be “composed of contiguous territory,” Act of June 25, 1842, ch. 47, 5 Stat. 491, in “an attempt to forbid the practice of the gerrymander,” Griffith, supra, at 12. Later statutes added requirements of compactness and equality of population. Act of Jan. 16, 1901, ch. 93, §3, 31 Stat. 733; Act of Feb. 2, 1872, ch. 11, §2, 17 Stat. 28. (Only the single member district requirement remains in place today. 2 U. S. C. §2c.)
Rucho, Slip. Op. at 9. It’s unfortunate that Congressional statute aspect of the case, was not more closely examined. While it is true that Congressional redistricting and gerrymandering, have since the dawn of the Country, been treated as a political issue, an understanding of that history, is also emblematic of the inherent conflict of interest that Congress has always had on this issue. History, and self-interest instead teach, for over 200 years, Congress refuses to voluntarily adopt Redistricting reform, unless forced to do so by other self-interests. Not what’s best for the country, or inherently or obviously right.
The first time, as noted correctly by Chief Justice Roberts, was the 1842 legislation. Redistricting was instituted because the country was continuously growing, and there needed to be an upper limit in the House, which is today, 435 members of the House of Representatives. (The legislation also mandated that the Districts, be “contiguous” and be “single member” as opposed to some Congressional districts having multiple Congressional representatives, as exist still in most States’ lower houses) This piece, however, focuses on the Apportionment Acts of 1901 and 1911, an under the radar issue, that was alluded to at the oral arguments in the earlier Benisek case last year, but has not been addressed significantly in the appellate and amici Briefings. 
As Section 3 of the 1911 Act states,
Sixty-third and each subsequent Congress shall be elected by districts composed of a contiguous and compact territory…
This is identical language to the 1901 Act, cited to in Rucho, et al., and which had been preceded by and substantially different from the previous Apportionment Act of 1891. That Act, only had a contiguity requirement, which had been in effect since the 1842 Act. (A listing of all the Reapportionment and Redistricting Legislation can be found on the U.S. Census Bureau’s web site, located here)
It’s important to note that this language from 1911 remained in the statute, until it was taken out in 1929 by Congress without any specific refutation of the previous version. This was discussed by the Supreme Court in the abbreviated Wood v. Broom decision when originally the 3-judge panel found the gerrymandering improper under the Federal Statute. The Wood Court stated as follows, in not addressing (what most people studying the Supreme Court today would call “punting”) the Reapportionment statute’s applicability and enforceability.
The Act of June 18, 1929, however, in providing for the reapportionment under the Fifteenth Census […] omitted the requirements as to the compactness, contiguity, and equality in population, of new districts to be created under that apportionment. It did not carry forward those requirements as previous apportionment acts had done. There was, it is true, no express repeal of §§ 3 and 4 of the Act of 1911 and, as the Act of 1929 did not deal with the subject, it contained no provision inconsistent with the requirements of the Act of 1911. Smiley v. Holm, 285 U.S. 355, 373. No repeal was necessary. The requirements of §§ 3 and 4 of the Act of 1911 expired by their own limitation. They fell with the apportionment to which they expressly related. The inquiry is simply whether the Act of 1929 carried forward the requirements which otherwise lapsed. The Act of 1929 contains no provision to that effect. It was manifestly the intention of the Congress not to re-enact the provision as to compactness, contiguity, and equality in population with respect to the districts to be created pursuant to the reapportionment under the Act of 1929. […] This appears from the terms of the act, and its legislative history shows that the omission was deliberate.
The Supreme Court, while noting in Wood that it would not examine the applicability of the Act in 1932 also noted it was not deciding any justiciability concerns on the broader issues. This is unfortunate, as it may have been at least persuasive to the Supreme Court of today as precedent on the justiciability of Federal Courts on extreme partisan redistricting in Congress. 
There is thus no ground for the conclusion that the Act of 1929 re-enacted or made applicable to new districts the requirements of the Act of 1911. That act in this respect was left as it had stood, and the requirements it had contained as to the compactness, contiguity and equality in population of districts, did not outlast the apportionment to which they related. […] In this view, it is unnecessary to consider the questions raised as to the right of the complainant to relief in equity upon the allegations of the bill of complaint, or as to the justiciability of the controversy, if it were assumed that the requirements invoked by the complainant are still in effect.
Wood, 287 U.S. at 8 (emphasis added).
To be clear, the relevance on this point, is not about statutory interpretation, at least not directly. Congress, Article I in the United States Constitution, took out this provision, without explanation when it redid the Apportionment Act in 1929.  However, both logically and as a matter of consistency, the fact that Congress had in the past such a provision, which would by its very nature, allow judicial intervention, has to mean something, even if that something is Congress has previously specified that they had delegated to the Supreme Court the ability and power to enforce redistricting challenges between 1901 and 1929. That does not support non-justiciability on what is arguably the exact issue of having some standards that are enforceable. It is a proper subject of Federal Court intervention, and not an impossibility to be avoided.
While the Supreme Court had never before held that extreme partisan gerrymandering is unconstitutional, many State appellate courts have had redistricting challenges, on compactness and contiguity grounds, often for a combination of concerns, including Federal constitutional, State constitutional, and State statutory grounds. And ironically for the challengers in Benisek v. Maryland, the State of Maryland and many of the elected officials are well familiar with the process and procedures, and what is “too much” having previously been rebuffed for excessive gerrymandering in violation of standards including compactness, in State legislative redistricting, which was invalidated by the Maryland Court of Appeals in 2002, and maps redrawn by the Court with expert witness assistance. See In re Legislative Districting of the State, 370 Md. 312, 327-328 (2002)(Chief Judge Bell)(“the redistricting process is a political exercise for determination by the legislature and, therefore, that the presumption of validity accorded districting plans applied with equal force to the resolution of a compactness challenge. Id. Thus, we instructed, “the function of the courts is limited to assessing whether the principles [“the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, § 2 of the Voting Rights Act, and the concepts of contiguity, compactness, population equality, and due regard for natural boundaries and the boundaries of political subdivisions, expressed in Article III, § 4 of the Maryland Constitution”] have been fairly considered and applied in view of all relevant considerations,” and not to insist that the most geometrically compact district be drawn.”) Again, this does not support non-justiciability, if State Courts, acting within their domain and sphere of influence, after giving extraordinary due deference to the legislative process, felt it necessary to intervene, and did, redrawing the maps in accord with State and Federal requirements.
The 1901 and 1911 Reapportionment statutes, and Wood’s discussion confirming that the Supreme Court did not deal with the merits of the broader questions, would seem to suggest in Benisek and Rucho, the justiciability concern does not translate to a prohibition on the Federal Judiciary’s involvement and not an overwhelming basis to decline Federal judicial intervention, when the same thing has occurred in many State Courts. Previously a statute existed specifying that there were standards, subjecting Congress to such judicial review for violations of the principles of fair and reasonable redistricting, such as compactness and contiguity.
The 1901 and 1911 legislation was also not done in an historical and political vacuum. As noted by the Justice Department’s Brief in the Arizona State Legislature v. Arizona Independent Commission on Redistricting case from the 2017 Term,
The new language [of 1911] was drafted on the view that “[i]f there is anything which is clearly a distinct denial of the rights of popular government it is a gerrymander,” and that to the extent a State generally provided for legislation to be considered by “the whole electorate,” such procedures should also be effective in the context of redistricting. 47 Cong. Rec. at 3436 (statement of Sen. Burton).
During the “Progressive era” 1900s-1920s, a “populist” movement championed by Senator LaFollete of Wisconsin, and included Teddy Roosevelt’s rise to seek the presidency as a 3rd party candidate, sought to help broaden and expand citizenry participation throughout the country. This included: (1) the direct election of United States Senators by Constitutional amendment (resulting in the 17th Amendment), (2) Women’s suffragist and voting rights (resulting in the 19th Amendment), (3) increased use of referendums in State Courts, and (4) other attempts to allow more direct participation of American voters such as resisting self-interested redistricting. There were all related and amongst the founding concerns of LaFollete and similar Progressive Era adherents. Redistricting, as confirmed by the 1901 and 1911 Reapportionment Act reform, was a function of that historical setting, which included a fairer ability to directly elect people in the House of Representatives, whilst the 17th Amendment made the Senate more accountable and democratic. By 1929, the “pressure” of reform, with other economic concerns taking root, was no longer as vital a concern to Congress. However, the fact that these codified reforms existed, justifies the logical extrapolation that the Federal Courts may properly reign in, severe partisan gerrymandering, and that it is justiciable.
Perhaps uniquely among legislative actions, redistricting can be almost entirely self-interested by the draft-makers, to help assure re-election. That has always been a concern since the founding of the United States, but with advancements of computer technology, a simple push of a computer with voter preference data, any political party entity, can pick an “ideal” voting plan, that maximizes their re-election chances. Thus, for states that take undue advantage of this data to craft election districts, it can be fairly stated that it’s no longer the voters who pick the elected officials, but the elected officials, who pick the voters. While democratic ideals on one hand suggest reasonable deference should be afforded to Congress on most every legislative issue under the sun, the conflict of interest motive, the same self-interested motive that about a century ago required two Constitutional Amendments to adjust the pendulum, may similarly require a pendulum shift to remedy the danger of undemocratic extreme partisan gerrymandering.
While some partisan gerrymandering was perhaps originally envisioned by the Framers to allow some political shenanigans, as former Governor of Massachusetts Elbridge Gerry demonstrated 200 years ago, it respectfully could not and should not be at the cost of Democratic-Republic system itself. As one of the political cartoons that helped create the portmanteau “gerrymander” in 1822—warned, inspired, and immortalized even then, (in a manner similar to the ancient mariner maps (“Here be Dragons”)) –- “[a]ll believe it is a creature of infernal origin, both from its aspect and from the circumstance of its birth…The monster shall be denominated a Gerry-mander.” This hasn’t changed in 200 years, and unfortunately still is alive today.
Part Two of this Article will focus on what Chief Justice Roberts agreed at Slip. Op. 33 in Rucho are the different “avenue[s] for reform established by the Framers, and used by Congress in the past.” As noted supra, the legislative solution is extremely unlikely to be passed in Congress. (As way of example, the 17th Amendment, was not even approved by Congress for submission to the States, until the States were one State away under the alternative method of passing Constitutional Amendments, under Article V, from forcing for the first time, a Constitutional Convention of States on the issue of direct election of Senators). However, a state by state approach has more promise at reform, and similar to a century ago, this can be combined with reasonable and moderate reforms, such as to the Electoral College, while maintaining the overall “federalism” aspects of that institution.
MR. SULLIVAN: Well, there’s a lot in the record that you’ll find. The Census considers most of the people in the western Maryland part of the state to actually live in urban areas, according to the Census. But I - the — Congress abandoned the geographic requirements as early as 1911, was the last time they put contiguity and compactness in a apportionment statute. So it’s not in the - it’s not in the Constitution. It’s not in the governing statute.
 It should also be noted that this took place before many of the blockbuster 1960-era voting rights cases such as Baker v. Carr, 369 U.S. 186 (1962)(Redistricting was justiciable, on “One Person–One Vote”) and Wesberry v. Sanders, 376 U.S. 1 (1964)(requiring States to provide Congressional Districts of roughly equal population).
 In Davis v. Bandemer, 478 U. S. 109 (1986), six (6) Supreme Court justices agreed that there was justiciability for hyper-partisan state-redistricting challenge from Indiana, but could not reach a majority decision on the rationale for justiciability. Only three (3) Supreme Court Justices concluded there was not justiciability in the Bandemer case.
 The 1929 Act, was described by the Census as occurring at a time when a different “Congress, dominated by rural politicians who stood to lose clout in a quickly urbanizing nation, failed to reapportion its seats following the 1920 census, this law set the process in place so that apportionment would occur automatically following the 1930 enumeration. The size of the House remained at 435 seats.”
 To be justiciable, any claim identifying vote dilution as the injury must set “a manageable standard by which to measure the effect of the apportionment” before it can be concluded that a State “impose[d] a burden or restriction on the rights of a party’s voters.” Vieth, 541 U.S. at 315 (Kennedy, J., concurring).