Benisek v. Lamone

IS THE ISSUE JUSTICIABLE?

Benisek argues that the test for First Amendment claims of retaliation in the context of political gerrymandering is whether the State has imposed a real and practical burden on a group of voters in retaliation for that group’s historical support for a particular political party. Benisek claims that First Amendment doctrine poses objective questions that are answerable with traditional evidence and ordinary legal standards. Further, Benisek maintains that a claim of First Amendment retaliation, unlike an Equal Protection claim, does not require a unifying definition of “fairness” nor a determination of whether the redrawn lines go too far. Benisek contends that lower courts have struggled to determine what fairness means in the context of redistricting, quantify deviations from the ideal fairness in redistricting, and determine at what point deviation from the ideal fairness is impermissible. Benisek asserts that instead of relying on a substantive definition of fairness or a statistical measure of severity, the questions are why and how the map was drawn, and whether there was a practical burden on the impacted voters as assessed by a pragmatic and functional review of the State’s conduct. Therefore, Benisek argues that the applicable test is: (1) whether the State considered citizens’ protected First Amendment conduct, in this case voting histories, in deciding how to redraw the district lines, and if so, was it done with the intent to dilute the votes of citizens who had alternative political beliefs; (2) if so, did the redistricted map actually dilute citizens’ votes and were such voters burdened in a concrete, practical way; and (3) can the map’s effects be explained by a constitutional acceptable explanation that is independent from any intent to discriminate? Benisek contends that the contested part of the test, the second question, is in fact justiciable because it is a practical and functional inquiry.

Lamone counters that because the impact of partisan gerrymandering cannot be identified according to principled judicial standards, Benisek’s First Amendment retaliation claim is non-justiciable under the Political Question Doctrine. Lamone argues that the standard for political gerrymandering is when the redistricting process has “gone too far.” Here, Lamone contends that Benisek offers no “clear, manageable, and politically neutral” standard for the burdens imposed, and, as Justice Kennedy warns in his concurrence in Vieth v. Jubelirer, the judicial outcomes for challenges to partisan gerrymandering would be “disparate and inconsistent.” To argue vote dilution as an injury, Lamone asserts, there must be a clear standard by which the court can measure such dilution. Lamone argues that Benisek has not proposed such a standard of measure. Further, according to Lamone, Benisek’s proposed standard of any vote dilution as too much vote dilution would prohibit all schemes of political and partisan classifications except those only with de minimis effects. This standard, Lamone proposes, cannot be correct because redistricting plans have no inherent impact on what candidates are on a ballot, what citizens can cast a vote, and when the votes may be cast. Therefore, Lamone argues, redistricting plans do not inherently impose a tangible restriction that should be prohibited in all circumstances. Finally, Lamone claims that Benisek wrongfully assumes that the preexisting redistricting scheme was constitutionally preferable, and thus any change from it would be unconstitutional. This assumption, Lamone asserts, erroneously suggests that people newly in a political minority could challenge a redistricting scheme while those who were previously in the political minority, whether the preexisting districts were drawn for partisan reasons or not, could not challenge a partisan gerrymander. This outcome, Lamone declares, would mean preserving and furthering the political dominance of one party over another despite current voters’ preferences.

WHAT ARE ACTIONABLE BURDENS IN POLITICAL GERRYMANDERING?

Benisek argues that although changing electoral outcomes is not necessary to show identifiable, actionable, more-than-de-minimis burdens imposed on citizens as a result of political gerrymandering, in this case, election outcomes were affected. Benisek further argues that, in this case, the actionable burden requirement is met not only because election outcomes were affected, but also because the gerrymander put the targeted Republican voters at a concrete disadvantage, thus making a Republican victory practically impossible. Benisek contends that the same Democratic Performance Index (“DPI”) and Partisan Voting Index (“PVI”) technology used to create the new districts in Maryland can be used to show that a real and practical disadvantage was imposed on Republican voters in Maryland’s Sixth Congressional District. This political disadvantage, Benisek asserts, is enough to demonstrate a justiciable burden. Finally, Benisek contends that discouragement from participation in the political process and pressure to join the dominant party as a result of the redrawn lines are actionable burdens, and such burdens are proved using ordinary evidence and analysis.

Lamone contends that the lower court correctly applied the standard for injury in the present case. This standard, according to Lamone, requires Benisek to show that the redistricting was for purposeful dilution in Maryland’s Sixth Congressional District and that the redistricting was the but-for cause of Republican Representative Roscoe Bartlett’s loss in 2012 and for Republican losses in 2014 and 2016. The losses must be directly attributable to the gerrymandering, Lamone asserts, because otherwise they would be the result of democracy, not constitutional injury. Lamone challenges Benisek’s assertion that anything more than a de minimis burden on voters constitutes an injury by emphasizing that Benisek offers no standard of measure for such burden. Further, Lamone argues, use of predictive evidence such as the DPI and the PVI are not determinative of but-for causation, and thus cannot be used to satisfy Benisek’s burden.

DOES MT. HEALTHY’S BURDEN-SHIFTING FRAMEWORK APPLY?

Benisek argues that First Amendment retaliation claims are supported by but-for causation without which the action at issue would not have been taken. Further, Benisek asserts that Mt. Healthy City School District Board of Education v. Doyle (“Mt. Healthy”) held that when plaintiffs make a prima facie showing of retaliatory harm, the burden shifts to the defendants to show that they would still take the same actions even without the motivation of retaliation. Benisek contends that they have met their two burdens: first, they showed that the district drawers intended to dilute Republican votes because of such voters’ political affiliation and second, they showed that there was a concrete and practical injury because the map drawers succeeded in diluting Republican votes. Therefore, according to Benisek, the burden, rather than remaining with Benisek to show that the maps would not have been drawn that way without retaliation, shifts to the State to show that the map would have been drawn that way even without retaliatory motivations.

Lamone responds that the lower court correctly refused to apply Mt. Healthy’s burden-shifting framework in this case. The burden-shifting framework, Lamone argues, does not apply because traditional First Amendment retaliation claims do not fit with claims of partisan gerrymandering. Lamone highlights that in traditional First Amendment claims, the action itself is the injury, citing, for example, a refusal to renew a teacher’s contract. Here, however, according to Lamone, the alleged official action is facially neutral—redistricting that was petitioned to referendum and approved by voters. Therefore, Lamone contends that Benisek cannot meet his burden of proving that the facially neutral official act diluted the votes of targeted citizens causing tangible and concrete adverse consequences, and thus the burden-shifting framework does not apply. Lamone argues that the Mt. Healthy burden-shifting framework is only triggered upon a prima facie showing of retaliatory harm. In such cases, Lamone asserts, the court assumes an injury and thus focuses on motive and intent. Here, however, Lamone argues, unlike in traditional First Amendment contexts, no such assumption can be made because the action is only injurious if the action alters the outcome of an election, which Lamone contends it did not. Finally, even if the burden-shifting framework applied, Lamone alleges that the Court should depart from it, as it did in Moore v. Hartman¸ because the alleged causation between the action and injury more attenuated and complex than that found in typical retaliation claims, the identity of the injured parties and injuring parties is unclear, and there is a rebuttable presumption of validity in gerrymandering barring invidious discrimination based on racial criteria or “other immutable human attributes.”