By Tom Fitton
President, Judicial Watch
The Supreme Court took up the issue of gerrymandering this week – and Judicial Watch once again was in the thick of the debate.
We joined with Allied Educational Foundation (AEF) in an amici curiae brief in the United States Supreme Court seeking to overturn Maryland’s 2011 congressional redistricting plan, which the brief calls “the most extreme and effective congressional gerrymander in the nation” (Benisek, et al. v. Lamone, et al., (No. 17-333)).
The Benisek case is on appeal from the U.S. District Court for the District of Maryland after the lower court ruled for the state in dismissing the plaintiffs’ claims. The Supreme Court heard oral arguments in this case on March 28.
Critics of the Maryland plan have charged that the new congressional map was designed specifically to minimize the voting power of particular voters. The Washington Post editorialized:
We and AEF argue that the test applied by the lower court in this case was inadequate to determine whether Maryland’s redistricting scheme constitutes an unconstitutional, partisan gerrymander that violates the First Amendment. It further argues that if the lower court ruling is allowed to stand, it “will ensure that every redistricting case will become a federal case.”
In our brief, we argue that courts must be able “to distinguish unconstitutional gerrymandering from ordinary political redistricting,” which will require “manageable and politically neutral standards for detecting gerrymandering.”
Our brief further explains traditional districting principles about the standards adopted by the lower courts in both the Benisek and Gill cases. And it argues that the lower court ruling in this case should be overturned for ignoring them.
We had earlier filed a lawsuit seeking to overturn Maryland’s 2011 gerrymandering scheme. In August 2016, the United States District Court for the District of Maryland ruled for the state in dismissing the plaintiffs’ claims. Judicial Watch filed an appeal with the Supreme Court in October 2016. On January 9, 2017, the court dismissed the appeal.
We’re pursuing a similar case in Wisconsin. In August 2017 we and AEF filed an amici brief in the gerrymandering case Beverly R. Gill, et al. v. William Whitford, et al., (No. 16-1161), urging the U.S. Supreme Court to reject the arbitrary method of drawing Wisconsin’s electoral districts adopted by the lower court, which ignored traditional districting principles. We argued that the lower court ruling relied, in part, on a novel test for gerrymandering found nowhere in the Constitution known as the “the efficiency gap,” which focuses on a purely hypothetical estimate of what each party “should” win in a “fair” election and amounts, in practice, to court-ordered, proportional party representation scheme.
The Supreme Court would be on a very dangerous course if it endorses the lead of the lower courts on gerrymandering. The lower courts in Maryland would tell the Supreme Court to ignore the most abusive gerrymander in the country, while the lower courts in Wisconsin would have the courts overturn district lines if not enough Democrats win.
The Supreme Court should pick a reasonable judicial standard for evaluating gerrymanders to ensure that voters can pick their politicians – not the other way around.