Month: June 2019

On March 26, 2019, the Supreme Court heard argument in Rucho v. Common Cause and Benisek v. Lamone, two cases involving gerrymandering.
Rucho v. Common Cause involves whether North Carolina’s 2016 congressional map involves unconstitutional gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, and Article I. In March 2017, a three-judge district court ruled that North Carolina’s 2016 Congressional Redistricting Plan constituted unconstitutional gerrymandering because the state General Assembly improperly relied on “political data” to draw districts to increase the number of Republicans in North Carolina’s congressional delegation. The court ordered new maps to be drawn for use in future elections. Following the court’s instructions, the General Assembly drew a new congressional district plan according to criteria identified by the Joint Select Committee on Redistricting. One such criterion was “partisan advantage,” which, relying on population data and political data, would “make reasonable efforts to construct districts in the 2016 plan to maintain current partisan makeup of North Carolina’s congressional delegation.” The plan was approved by the committee, the North Carolina Senate and North Carolina House of Representatives, all along party lines. Others filed objections to the plan and asked that the court reject it as partisan gerrymandering. The court held that the plan constituted unconstitutional partisan gerrymandering, enjoined North Carolina from using the plan in any election after November 6, 2018, and directed the parties to submit briefs relating to whether the court should allow the plan to be used in the 2018 election and allow the General Assembly a third opportunity to draw a plan. Although the U.S. Supreme Court vacated the district court judgment and remanded the case for reconsideration in light of its 2018 decision in Gil v. Whitford on standing, the district court subsequently concluded that the plaintiffs had standing and reasserted its earlier determination on the merits. In August 2018, the district court concluded that there was not enough time to review a new plan before the seating of the new Congress in 2019 as well as determined that a new schedule for elections would interfere with North Carolina’s electoral machinery. Thus, the court declined to enjoin use of the plan in the November 2018 election.
The Supreme Court thereafter granted certiorari to consider (1) whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.

Lamone v. Benisek involves Maryland’s 2011 redistricting plan, particularly whether the State redrew the boundary of one district to burden Republicans. Following the 2010 census, Maryland redrew the lines of its congressional districts and state legislative districts. The Sixth Congressional District had grown by approximately 10,000 residents, which required adjustment of the district boundaries. If only a slight adjustment for population had been applied, the district would have been unquestionably Republican. Instead of this slight adjustment, the plan swapped half the population of the former Sixth District with about 24,000 voters. The change created in effect a difference in 90,000 Democratic votes. Plaintiffs argued that in enacting 2011 law, the State deliberately diluted Republican votes in violation of the First Amendment. A three-judge district court agreed with plaintiffs, enjoining the State from using the 2011 congressional redistricting plan after the 2018 congressional election and requiring it promptly to adopt a new plan for use in the 2020 congressional elections.
The Supreme Court granted certiorari to consider (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
To discuss the cases, we have Derek Muller, Associate Professor at Pepperdine University School of Law.

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