In a landmark decision, the United States Supreme Court today ruled that partisan-gerrymandering challenges to electoral maps are political questions and thus beyond the reach of the federal courts, dismissing challenges by voters in Maryland and North Carolina.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” Chief Justice John Roberts wrote on behalf of the 5-4 majority. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh joined Roberts’s majority opinion.

In dissent, Justice Elena Kagan wrote that “the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people… These gerrymanders enabled politicians to entrench themselves in office as against voters’ preferences. They promoted partisanship above respect for the popular will. They encouraged a politics of polarization and dysfunction. If left unchecked, gerrymanders like the ones here may irreparably damage our system of government. And checking them is not beyond the courts.”

Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor sided with Kagan’s dissent.

The ruling means that Maryland does not have to redraw congressional election districts prior to the 2020 elections. Instead, the maps will be redrawn in time for the 2022 elections — in accordance with 2020 United States Census data.

“Today’s ruling was terribly disappointing to all who believe in fair elections. I pledge to vigorously continue this fight, both in Maryland and across our nation,” Governor Larry Hogan said in a statement. “Gerrymandering is wrong, and both parties are guilty. It stifles real political debate, contributes to our bitter partisan polarization, and deprives citizens of meaningful choices. The voters should pick their representatives, not the other way around. I will do everything in my power to restore free and fair elections for the people.”

Courts have traditionally struggled to develop a workable test that will define constitutional limits on partisan gerrymandering — voting districts that are redrawn to benefit one political party over another in elections. The U.S. Supreme Court has addressed the constitutionality of partisan gerrymandering in a series of cases, most arising under the Equal Protection Clause, and has never invalidated a district on that basis or even settled on a clear standard for doing so.

Redistricting is the means by which new congressional and state legislative district boundaries are drawn. Each of Maryland’s eight United States Representatives and state legislators is elected from political divisions known as districts.

District lines are redrawn every 10 years, in accordance with the United States Census. The federal government mandates that districts must have nearly equal populations and must not discriminate on the basis of race or ethnicity.

In Maryland, the General Assembly has primary authority to draw both congressional and state legislative district lines. The governor, aided by an advisory commission, submits a state legislative redistricting proposal.

The legislature may pass its own plan by joint resolution, which is not subject to a gubernatorial veto. If the legislature fails to approve its own plan, the governor’s plan takes effect. Congressional lines are drawn solely by the legislature and may be vetoed by the governor.

Benisek v. Lamone

Following the 2010 Census, Maryland enacted its newly minted redistricting plan. After a series of legal challenges, voters ultimately approved the maps by referendum in 2012.

Seven plaintiffs — all of whom lived and voted in Maryland’s Sixth Congressional District prior to its reconfiguration in the 2010 redistricting cycle — filed a complaint in the U.S. District Court of Maryland in 2013, crying foul over the redistricting of the sixth district. In the complaint, plaintiffs argued that the plan was a partisan gerrymander which violated the right to representation guaranteed by Article 1 Section 2 of the United States Constitution, and the First Amendment’s protection of political association.

The First Amendment to the United States Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

A district judge dismissed the case in 2014, but did so without convening a three-judge panel. The U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s decision, and the plaintiffs appealed to the U.S. Supreme Court.

The U.S. Supreme Court in 2015 ruled that the district judge was wrong to dismiss the challenge, noting that federal statute requires objections to statewide redistricting plans be heard by a three-judge panel. The ruling allowed the case to continue in the lower courts.

Last November, a three-judge panel of the U.S. District Court for the District of Maryland struck down the 2011 congressional redistricting plan. The order permanently banned the State from using the 2011 plan and would have required new maps in time for the 2020 elections.

The court was set to appoint a three-person commission headed by a magistrate judge to redraw the congressional map if the state did not submit a valid plan by March 7, 2019. However, the court agreed to stay the ruling pending the decision of the U.S. Supreme Court.

Stay tuned to Conduit Street for more information.