Despite the powerful sense of his absence from our temporal world, the mortal Justice Scalia is very present in these pages.
Will a suggestion and the citing of only one “precedent” by Justice Kennedy in a concurring opinion in 2004 be the basis for a new First Amendment doctrine forbidding “partisan gerrymandering?” Today, the Supreme Court will hear oral arguments in the case of Benisek v. Lamone, a case involving an allegation of partisan gerrymandering by the Democrat-controlled legislature concerning one Congressional district in Maryland. During this same term, the Court has already heard the case of Gill v. Whitford, in which plaintiffs in Wisconsin have alleged that the redistricting plan for the Wisconsin state house drawn up by the Republican-controlled legislature was unconstitutionally gerrymandered in violation of the First Amendment.
Likewise, in Common Cause v. Rucho, a case which the Supreme Court put on hold in January, a three-judge district court panel found that the North Carolina 2016 re-districting plan drafted by the Republican-controlled state legislature was unconstitutional under the First and Fourteenth Amendments and under Article One of the Constitution. And the Pennsylvania Supreme Court, citing Pennsylvania’s state constitution, in January took over from the Republican-controlled legislature and itself undertook a reapportionment of the maps of all eighteen of that state’s Congressional districts.
Partisan Gerrymandering and the Courts
Under Article One, Section Four, of the Constitution, state legislatures have the first authority (and the Congress secondary authority) over the “Times, Places and Manner of holding Elections for Senators and Representatives” for the United States Congress. For election of representatives, this includes the re-drawing of Congressional districts after each decennial census. As the result of federal legislation and Supreme Court rulings over the last sixty years, the power of the state legislatures has been qualified by the requirement that Congressional districts be of equal population and not discriminate by race. Until now, the “politics” of re-districting has never been a constitutional issue.
In Vieth v. Jubelirer (2004), Justice Scalia, writing only for the plurality, referred to the only precedent of the Court, Davis v. Bandemer (1986), in which the Court had found “political gerrymandering” justiciable but had concluded that there were not manageable judicial standards to find a violation under the Equal Protection Clause. Scalia said that “eighteen years of judicial effort” in lower-court cases brought under Bandemer ought to lead to the conclusion that political gerrymandering was non-justiciable. The Vieth case, brought by Democrats, concerned the 2001 re-apportionment plan adopted by the Republican-controlled Pennsylvania state legislature for the state’s Congressional districts.
As for the practicality and the ability of courts to handle claims of “partisan gerrymandering,” Scalia strongly argued that such cases were practically impossible because “partisan districting is a lawful and common practice” and because “political affiliation is not an immutable characteristic, but may shift from one election to the next; and even within a given election, not all voters follow the party line.” If partisanship becomes justiciable, Scalia asserted, then there will be no end to lawsuits about partisanship, and he wondered whether even in the case of “severe partisan gerrymanders,” it would be proper for the courts to remedy the problem. He said that the Court’s cases in racial gerrymandering were based on the single characteristic of race and were, thus, simple compared to the complexities and subjective uncertainties of political gerrymandering. Scalia averred that the partisanship claim “rests upon the principle that groups (or at least political-action groups) have a right to proportional representation,” an allegation which the Vieth plaintiffs denied.
In all these cases, present and past, the plaintiffs have uniformly denied that they were seeking the result of having the number of elected officials reflect the proportions of Republicans and Democrats – “partisan symmetry” – in a district or a state.
Justice Kennedy’s Invitation
The concurrence of one Justice in Vieth has kept the issue of partisan reapportionment alive. Concurring in the decision of the Court and essentially agreeing that partisan gerrymandering cannot be adjudicated under the Equal Protection Clause and the Fourteenth Amendment itself, Justice Kennedy declared that he was unwilling to accept Justice Scalia’s conclusion that partisan gerrymandering was not a constitutional issue. Instead, he brought up the notion that the “First Amendment may be the more relevant constitutional provision in future cases that allege unconstitutional partisan gerrymandering.” Pointing to the case of Elrod v. Burns (1976) (discussed below), he said that a First Amendment analysis would concentrate on whether partisan gerrymandering has the effect of burdening the rights of “voters for reasons of ideology, beliefs, or political association.” In his dissent in Vieth, Justice Stevens agreed with Kennedy and also mentioned Elrod and some related cases.
Kennedy’s Vieth concurrence is the basis for Maryland’s suit, as it was for the Wisconsin suit, Gill v. Whitford, the still undecided case that the Supreme Court heard in the fall of 2017, and the decision in which will undoubtedly be a companion to the Court’s decision here.
The Maryland Plaintiffs Argue the First Amendment
As a result of the re-drawing by the Democrat-controlled legislature of one of the two Maryland congressional districts held by Republicans, the Republican Congressman who had represented Maryland’s Sixth District since 1991 and who had won the 2010 election there by a 28 percent margin, lost the re-apportioned district in 2012 by a 21 percent margin. Taking up the issue of partisan gerrymandering, some Republican voters sued. A three-judge district-court panel held that the issue was justiciable but denied the suit and ruled that the Republican plaintiffs could win “only if they could prove” that the defeated Republican congressman “would have won re-election in 2012 had the prior district remained intact.”
The Benisek plaintiffs, taking up Kennedy’s invitation about associational rights under the First Amendment, maintain that their suit is based on what they have identified as “the First Amendment “retaliation doctrine.” They assert that Elrod v. Burns controls, and they use that case and an appeals court case to make the dramatic and sweeping statement that partisan gerrymandering “is inimical to the process which undergirds our system of government and is ‘at war with the deeper traditions of democracy embodied in the First Amendment.’”
Elrod was a suit brought by Republican employees of the sheriff’s office of Cook County (Chicago), Illinois, who had been fired by the newly-elected Democrat sheriff. A badly divided 5-3 Court in which there was no majority opinion ruled in favor of the discharged employees. In his plurality opinion for the Court, Justice Brennan said vaguely, with reference only to Buckley v. Valeo, the case overturning limitations on donations to political candidates, “that the practice of patronage dismissals clearly infringes First Amendment interests,” for, “political belief and association constitute the core of those activities protected by the First Amendment.” The words “retaliate” and “retaliation” do not occur in the text of the Elrod decision.
In dissent, two of the Elrod justices, in a manner similar to what Justice Scalia has said about political gerrymandering in Vieth, spoke of the uncertainty of the possible constitutional principles that would govern political patronage. Justice Powell said the “the Court holds unconstitutional a practice as old as the Republic, a practice which has contributed significantly to the democratization of American politics.” The decision of the Court “exaggerates the perceived burden on First Amendment rights” and may “well disserve – rather than promote – core values of the First Amendment.” He said that patronage was actually an improvement on older practices in which government employment was permanent and “aristocratic.” In his own dissent, Justice Burger said that the plurality had caused “a significant intrusion into the area of legislative and policy concerns.” In “strain[ing] the rational bounds of First Amendment doctrine,” Burger said that the Court had found something in the Constitution “it has not been thought to require for 185 years.”
The Republican plaintiffs in Benisek now propose using the “doctrine” of this minor First Amendment case with its tentative conclusion and vote division of the Justices as a means of effecting a fundamental constitutional change. Citing Justice Kennedy in Vieth and the inability of the Fourteenth Amendment approach to produce their desired goal, the Benisek plaintiffs argue that “the First Amendment approach is different,” It requires a showing of intent and effect, they say. As for “intent,” they state that the dramatic change in the result of the Sixth District’s 2012 election compared with the 2010 election is all that is necessary to prove the requisite intent.
As for the necessary “concrete and practical [effect] to warrant judicial intervention,” the plaintiffs cite five “routine” First Amendment retaliation cases, all of which are decisions of the lower federal courts, not the Supreme Court. The plaintiffs do not bother to lay out the facts of those cases. They go on to rely on Anderson v. Celebrezze (1983), still another 5-4 decision, for the rest of their brief. Celebrezze concerned the state of Ohio’s refusal in 1980 to allow third-party presidential candidate John Anderson onto the presidential ballot because he had filed his ballot petition after the deadline under Ohio law. The Supreme Court ruled that Ohio had impinged on the “associational choices protected by the First Amendment” because it had unequally “burdened” a small independent party and its candidate. In his concurrence, Justice Brennan said that the decision was in keeping with “the primary values protected by the First Amendment.” The effect of the Ohio law was “concrete and practical,” the Benisek plaintiffs argue. It completely eliminated a candidate from running for office. The same strong effect is evident here, they contend.
The Right of Association
Unlike the words “speech . . . religion . . . press … assemble,” the word “association” does not appear in the First Amendment. Sometimes imperfectly associated with the First Amendment’s right to “assemble . . . and petition . . . for the redress of grievances,” a “right” of association did not occur in constitutional law before the decision of the Supreme Court in NAACP v. Alabama (1958). However, in that case, the Court said that the right dwelled in the Due Process Clause of the Fourteenth Amendment. Five years later, in NAACP v. Button (1963), the Court, speaking of “modes of expression and association,” extended the analysis to the First Amendment.
There is not any doubt that the Democrat-controlled legislature of Maryland together with the Democrat governor sought to eliminate – that is, sought to gerrymander – one of the two congressional seats held by Republicans. By contracting the wide east-west configuration of the rural district and extending it down to include the liberal northern suburbs of Washington, D.C. the Democrats accomplished their objective. But, in a colloquial re-phrasing of Justice Scalia in Vieth, “so, what?” As Scalia said in Vieth, “partisan districting is a lawful and common practice,” No plaintiff or party in any of these cases, present or past, has ever denied that. Nor did Justice Kennedy deny it when he said in his Vieth concurrence that “political classifications” were “generally permissible.”
So, how to make partisan gerrymandering illegal, or partially illegal, or sometimes illegal? The switch to the First Amendment from the Fourteenth Amendment allows the courts to avoid classifications that require the most exacting scrutiny and to speak in broad and sweeping terms that involve prudential, discretionary, and almost intuitive judgments – or opinions. And, as opposed to formal classifications, it enables the identification of at least something that everyone is familiar with, an association, and not just any association but one “which undergirds our system of government” and involves “the deeper traditions of democracy embodied in the First Amendment.”
The problem is that the “right of association” is a new right only derivative of the free speech right in the First Amendment. The right of association has been used mostly by the Court in limited and specific circumstances to protect free speech that is connected to or occurs in or about private organizations or groups. Until now, it has never been concerned with the basic functioning of our democratic system. The political patronage of the Elrod case, is, by comparison, a trivial subject.
Making Partisanship Subject to the Judiciary?
There cannot be any doubt that both the standard for and the result of constitutionalized gerrymandering will be proportional representation by political party. There is no other way – for everyone, not just the average citizen – to comprehend it. Although Benisek involves only one congressional district, the basis for it and of the cases of Wisconsin, North Carolina, and Pennsylvania are that state redistricting plans give one party an electoral advantage out of proportion to the registered voters of the Republican Party versus the Democratic Party. “Partisan symmetry” is the goal, and affirmative judicial action is needed to achieve that goal.
The initial and major cases in this thirty-year strategy trying to get the Supreme Court to take over re-districting as a judicial power have been brought by Democrats. It is probable that the Supreme Court took up the Benisek case brought by Maryland Republicans but only put on hold the Rucho case brought by North Carolina Democrats in order to issue a ruling that, together with its ruling on the already-argued Gill case brought by Wisconsin Democrats, will have the public appearance of involving both political parties.
“Partisan symmetry,” that.