Once again, someone is asking the Supreme Court to end partisan gerrymandering of congressional districts based on a violation of the Equal Protection clause. Specifically, they asked the Court to evaluate whether the 2010 Wisconsin legislature drafted a map of congressional districts that effectively eliminated the voting power of Wisconsin Democratic voters. (This is a great explanation of how politicians use gerrymandering to keep power). There is no question that, at the moment, Republicans win the award for the most gerrymandered congressional districts. Perhaps, given how widespread the problem has become, the Court will finally decide to stop the practice. However, the outlook isn’t great. The Court ruled in 1986 that partisan gerrymandering violates the Equal Protection clause, but could not decide, either in that ruling or again in 2004, how to fix the problem. I think it’s time for a new strategy, and a law student from American University, Steve Shapiro, may have just the one. He has filed a suit arguing that gerrymandering violates the First Amendment, and sued the perfect test case – the heavily Democratic State of Maryland.
Suing a Democratic state could persuade conservative Justices
Maryland is a quiet little state nestled on the eastern seaboard, and most other Americans may only know it for its excellent crab cakes (but seriously, the crab cakes are really good). One of the interesting things about Maryland is that a fluke of history has made it one of the most gerrymandered states in the country. Democrats have held power in both houses of the legislature since 1918. This is because Maryland was once a loyal, Democratic, segregated state in the Solid South, but since desegregation, it has gone its own way. As the rest of the South responded to Nixon’s Southern Strategy, Maryland became gradually more liberal, and today it is one of the bluest states.
Because it is a Democratic state, Maryland offers an opportunity to present the case against gerrymandering without attacking the Republican Party and its interests. Why does that matter? Four out of the five sitting Supreme Court Justices are dedicated conservatives, and Anthony Kennedy frequently sides with them. Obviously, Supreme Court Justices know that any gerrymandering decision will subsequently be applied to all states, but it doesn’t take a leap of imagination to suppose that a case brought on behalf of Republican voters might be persuasive. Supreme Court Justices are, after all, only human.
The First Amendment might be an easier sell than the Equal Protection clause
For one thing, it may be an easier argument because Anthony Kennedy seems open to it, and this is Anthony Kennedy’s Court. In the last gerrymandering case brought under the Equal Protection clause (arguing that political parties are a class of persons being deprived of equal protection of the laws) Justice Kennedy indicated he might be amenable to a free speech argument. It is no wonder – the Court has been unable to make Equal Protection work. Unlike racial classifications under the Voting Rights Act, classifying people by political party – by what they think – is a hairy prospect. It is hard to figure out when Democrats or Republicans have been discriminated against as a class and when it is appropriate for a court to intervene. Moreover, how is the Court supposed to invent a way for legislatures to re-draw the districts, without becoming overly involved in the political process?
Violations of Free Speech and Free Assembly rights under the First Amendment create a simpler metric and a simpler analysis than Equal Protection. The question is: did the Maryland General Assembly silence Republican voters deliberately? All Marylanders, like all Americans, have the right to freely form political associations and band together to have their political speech heard. If Shapiro can prove that the Maryland General Assembly took voting patterns into account when it re-drew the districts, that forms a pretty strong argument it deliberately infringed on the Free Speech and Free Association rights of Maryland Republicans. If so, the Court does not need to come up with formulas for distribution of voters, it can simply say “no legislature may take voting records into account when drawing congressional districts.”
A First Amendment argument may not solve everything, but it’s a start
You may be wondering whether simply ending the use of voter data in redistricting will fix the gerrymandering problem. It’s possible that it will not – politicians are known to be awfully tricksy, and they may find some sort of proxy for voting records that allows them to estimate voter behavior. However, that may be harder over time. People move around, demographics change, and a ban on using voter data may gradually even out congressional districts, even if it does not automatically bring an end to gerrymandering. We may never get a magic solution from the Court. The truth is, this is a problem we are supposed to be addressing through advocacy to our elected officials. The Court is in a Catch-22: it is certainly supposed to protect us from attempts by those elected officials to silence our votes and voices, but it is also not supposed to usurp the political process. Mr. Shapiro et. al. has given the Court a chance at a simpler rule against gerrymandering. Let’s hope the Court takes it.