In Maryland, it was not the Republicans getting sued this time. It was the Democrats. The Democrats were in control of the re-districting process, and the Republicans accused them of illegal gerrymandering to effectively take away one particular U.S. House district.
The Maryland plaintiffs took an interesting route to arguing their case. Instead of using the Equal Protection Clause to frame the violation of law, they used the First Amendment’s right to Free Speech and Expression. By having their votes diluted through gerrymandering, the plaintiffs said they were having their First Amendment rights violated. We explained the difference between this argument and the Equal Protection argument here.
The case is still ongoing, but it’s already had some appellate action. The Republicans had sought a preliminary injunction from the Maryland lower court. They argued they had a good chance of winning and would face irreparable harm if the court did not stop the unfair maps from going into effect immediately. They lost (the request for temporary relief) in the trial court.
But the Court did no such thing. The Court decided this case on other grounds, like it did in Gill v. Whitford (the Wisconsin case). This time, the Court used some factors that are only relevant to preliminary rulings in order to reject the appeal.
So the parties are back in Maryland federal court battling out all the important issues so that the Court can make a real (non-preliminary) decision on the case. And then we could see it back up at the Supreme Court.
But for now, no new maps. Maryland remains pretty expectedly blue for the midterms.
Michigan could end up very competitive if the Democrats can convince the court of their gerrymandering claims. The case is set for trial early next year.
Here we have the youngest of our political gerrymandering cases. Young but nevertheless maturing quickly through some appeals court action (nothing too major, and not in the Supreme Court yet).
In Michigan, Democrats alleged Republicans unfairly drew state legislative and congressional district lines so the Democrats’ votes would be diluted. The case was filed in December 2017, and the parties are proceeding with pre-trial stages. The Michigan state defendants already have successfully gotten one part of the challengers’ claims thrown out. The plaintiffs had alleged the lines were drawn unfairly on a state-wide basis and also on a district-wide basis, and the court has rejected the state-wide claims already. That all happened before the evidence was gathered.
Now that the evidence has been dug up, the Michigan state defendants have filed another request to get the case dismissed (motion for summary judgment). The Michigan district court will be hearing arguments on the motion for summary judgment early in November. If the defendants can’t get the case kicked, trial is set to start in February 2019.
This case will not affect district lines for the 2018 midterms, but we’ll see what comes of it.
For a full set of legal documents on this case, see the Brennan Center’s case page.
Part II: Understanding Political Gerrymandering Claims
These political gerrymandering cases seem to have a lot of appeals and technical issues to resolve. What’s with that?
The obvious answer: They are big-deal cases. They could affect the distribution of political power for years to come. The parties will put plenty of resources into them and won’t give up easily.
The other answer: There is confusion within the federal courts about how to analyze the cases. Here’s why.
It’s fair until it’s not
The biggest question for a court in deciding whether gerrymandering is legal or illegal is the extent to which the partisan line-drawing happens. Parties in power can’t be expected to completely ignore politics (party affiliation) when they draw district lines. At least, that’s how it’s been for all of our nation’s history. To some extent, political gerrymandering is allowed. But it’s hard to know when gerrymandering goes too far. And the Supreme Court has hard a hard time articulating the rule.
How much is too much political gerrymandering?
The last couple of decades has exhibited the Supreme Court’s impotence in addressing political gerrymandering in the courts. While some lower courts have attempted to stop in-power parties from being too excessive about their selfish line-drawing, the cases that have reached the Supreme Court have been met with uncertainty.
The Justices usually are good about setting nationwide standards on how courts can determine legal claims. For example, as similar claims start to get appealed from different jurisdictions around the nation, and if lower courts are deciding the cases with inconsistent rules, the Supreme Court will take the issue and tell all the lower courts how to deal with it from then on.
So in this context, a political gerrymandering claim takes the form of:
The state government officials in the other political party are discriminating against me because I am a member of the opposing political party.
The question is, then, what about the line drawers’ actions crosses the line from legitimate selfish line drawing (just a part of politics) to unfair line drawing (violating the Equal Protection Clause)? How can courts make one single rule that determines exactly when gerrymandering becomes invalid?
That is the question that the Justices have failed to answer. In 2004, it looked like the Court was going to admit defeat (Vieth v. Jubelirer). And this recent term, the 2017-2018 term, the Court addressed two cases in which it might have taken another stab, but the Court decided the cases on technicalities (Gill v. Whitford and Benisek v. Lamone).
The PA case distinction
The federal court confusion over gerrymandering claims could be the reason why the Pennsylvania case is the only one that is final and going into effect. The Pennsylvania case was not brought in federal court with an argument based on the federal Equal Protection Clause. It was brought in Pennsylvania state court based on the Pennsylvania State Constitution. Because of the Supreme Court’s judicial impotence discussed above — for political gerrymandering as a federal claim — that could be the essential difference of the plaintiffs’ success.
Explaining our competitiveness analysis
We got our competitiveness ratings from Cook Political Report. Here is the list of House races that the organization has labeled “competitive” for the 2018 midterms.
We wanted a clearer way to label states as a whole (rather than by race specifically), so we analyzed the number of seats open in each state to determine how competitive the state is as a whole. Because Cook characterizes some races as not quite competitive but decided they were important to note nonetheless because of their potential to swing, we wanted to give those races credit, just not full credit.
Thus, our state characterizations on the infographic (very competitive, competitive and mildly competitive) take into account a full factor for races that Cook calls truly competitive and a half factor for those borderline races.
Accounting for borderline races is relevant to this report because the gerrymandering lawsuits could affect the borderline races for the four of the gerrymandering cases which have not yet been decided.