It was a tale of two different types of amicus briefs – both trying to influence two crucial Supreme Court decisions on partisan gerrymandering in two different ways.
The first case comes from Pennsylvania, where the state Supreme Court earlier this month said that the state’s congressional districts “clearly, plainly and palpably” violated the Pennsylvania constitution and ordered that new maps be drawn immediately and used in this November’s election.
The second case, from Maryland, is the best example of a Democratic gerrymander during this redistricting cycle. Just as plainly and palpably, Democrats worked to squeeze themselves an extra congressional seat, turning a map that had favored them 6-2 into a 7-1 advantage by radically remaking the state’s 6th congressional district.
The Maryland briefs had a bipartisan sheen; the ACLU filed one and noted on Twitter that “gerrymandering is wrong no matter which party does it.”
But one Pennsylvania brief in particular stood out for its unique argument. It was filed by six GOP secretaries of state, and funded by the Republican State Leadership Committee – the strategists who pulled off REDMAP (short for the Redistricting Majority Project) and reinvented the gerrymandering wars in 2010.
It comes from the secretaries of state of Alabama, Arizona, Arkansas, Kansas, Missouri and South Carolina, and it’s quite surprising, considering the traditional role of that office in guarding the franchise.
Their argument suggested that new maps at this stage would cause electoral chaos and confuse voters and election administrators alike. But then they also suggested there was no need for new maps until after the 2020 census.
While the state Supreme Court wants new maps drawn by February – or the court says it will draw them itself – these secretaries of state are advocating that the process be slowed down for several years. Go ahead, the argument essentially goes, and run two more elections on these maps that the state Supreme Court deemed unconstitutional.
Here’s the key paragraph:
“The relief ordered by the court will last only until the next Census results are distributed to the states. The census will be conducted in 2020, the results distributed in the first quarter of 2021, and the states will have to put new congressional plans in place for elections in 2022. In that next round of redistricting, any newly developed parameters of any limitation on partisan gerrymandering can be taken into account. Put simply, there is no need to hurry.”
There is no need to hurry. It’s an astonishing argument from these secretaries of state – urging another state to run two more congressional elections on maps that the state’s Supreme Court has invalidated as unconstitutional.
Surely, the RSLC’s support – and the like-minded affiliation of these six office-holders – has nothing to do with the fact that the current maps give Republicans a 13-5 edge in this otherwise battleground state. Democrats have not flipped a single seat in Pennsylvania all decade on these maps.
The filings felt higher-minded and sounded less off-pitch notes in the Maryland case, Benisek v Lamone.
The amicus briefs here followed a more traditional playbook. As in the Gill v Whitford case from Wisconsin heard by the court this fall (about a state assembly map gerrymandered by Republicans), an ideological hodgepodge of current and former members – representing most of the famous centrists of recent decades – expressed their concern about the damage gerrymandering does to democracy. And former California Governor Arnold Schwarzenegger again applied star power to a brief, this time alongside Ohio Governor John Kasich and Maryland Governor Larry Hogan.
The bipartisan assortment of past and present members – including Republicans Thomas Davis, Christopher Shays and Connie Morella, and Democrats such as Seth Moulton, Dave Loebsack and Jim Cooper -- made an argument known to appeal to Justice Anthony Kennedy ever since his decision in a Pennsylvania partisan gerrymandering case more than a decade ago: That the First Amendment’s protections of political speech and association might prove the best way to show that partisan gerrymandering is unconstitutional.
“Partisan gerrymandering is at war with these fundamental First Amendment principles,” the members wrote.” The drawing of district lines, not to further a legitimate objective, but simply to entrench one party in power burdens the representational rights of citizens, and violates the “core principle of representative government.”
And because the Maryland case deals with an insidious gerrymander of a single congressional seat by the Democrats in 2011, they’re able to pin responsibility on both sides.
“The First Amendment does not permit the government to discriminate against voters because of their political viewpoint or affiliation. These fundamental First Amendment principles apply whether Democratic voters (as in Gill v. Whitford), or Republican voters (as in this case), are systematically subordinated by a partisan gerrymander. Partisan gerrymandering—whether the aim is to subordinate Democratic or Republican voters,” they conclude, is not only toxic, but undermines democracy itself.
The three governors, in their amicus filing, recognized that legislatures play the primary role in map drawing in most states. But they urged the court to play a role it has been reluctant to take on: a neutral arbiter of nonpartisan review. While the courts have feared entering the “political thicket,” Schwarzenegger, Kasich and Hogan seem to assert “you must, for who else is there?” Save us, they beseech, before partisans who cannot stop themselves do this again.
“As elected officials with statewide constituencies, we have had to reach out to all voters and build consensus with legislators across the aisle in order to win elections and govern effectively. At the same time, as elected officials, we recognize the … natural incentives elected officials have to entrench their party’s power by adopting partisan-gerrymandered redistricting plans and the natural resistance those officials may have to any effort to police redistricting decisions.”
Politicians, they insist, cannot address this without the courts’ help. And, they fear, gerrymandering is only about to get worse.
“As governors, we can certainly understand the attraction. Presented with the opportunity to enhance one’s future electoral fortunes and those of his or her party,
governors will feel intense pressure to sign redistricting bills that promise to solidify electoral majorities for their party’s legislators, and fear the backlash that surely will come from their refusal to do so. And unified party control of a state’s
executive and legislative branches substantially increases the ability of governors and legislators to enact their agenda, unimpeded by any viable political opposition.”
The Supreme Court will hear oral arguments in the Benisek case on March 28.