Rucho v. Common Cause – Allowing the Constitution to Sow the Seeds of Democracy’s Demise?
April 24, 2018 and March 14, 2019 posts in this blog argued that achieving and guarding political equality at the ballot box should, under the Equal Protection Clause of the Fourteenth Amendment, be no less justiciable than achieving and guarding racial equality there. Measuring and predicting the effects of legislative districting implementing classifications based on political beliefs and affiliations are endeavors not materially different from measuring the predicting the effects of conduct implementing classifications based on race. Except where a classification both protects and diminishes protected interests,[1] as with partisan gerrymandering, classifications burdening the expression or effectuation of political beliefs, equally as classifications based on race, have been carefully scrutinized and eschewed in Supreme Court equal protection decisions under the Fourteenth Amendment.[2] The prior posts, however, also argued that the partisan “retaliation” standard in actions brought under the First Amendment did not provide a justiciable standard for separating constitutional partisan gerrymandering from unconstitutional partisan gerrymandering. Read More…
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”).[1] 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.[2] Read More…
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). Read More…
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”).[1] 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. Read More…
Maryland Appellate Blog 