Featured News

Supreme Court to Reject Maryland’s Gerrymandering


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:

The map … mocks the idea that voting districts should be compact or easily navigable. The eight districts respect neither jurisdictional boundaries nor communities of interest. To protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies in cubism.

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.”

Traditional districting principles, such as compactness, contiguity, and respect for established political boundaries have been bedrock considerations under this Court’s redistricting jurisprudence for decades, and there is no reason to discard them in favor of untried standards that rely entirely on what legislators say (or, in future, learn not to say) and on the unpredictable fortunes of political parties. Much less is there any reason to follow currently favored social science theories that disregard decades of practical knowledge and jurisprudence concerning the process of drawing district lines.

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.

Make a donation to Judicial Watch

About the author

Frank Parlato


Click here to post a comment

  • Too bad Judicial Watch’s lopsided activism will never advocate that Republican gerrymanders be declared unconstitutional also. I also find it amusing that they advocate “traditional districting principles, such as compactness, contiguity, and respect for established political boundaries” in this age of computerized maps, in which exactly zero gerrymandered districts, whether Replubican or Democrat, follow those principles, and likely won’t ever do so in the future. In my view, districts should not be drawn by any political parties, but by a non-partisan commission. Some states have that.