Lamone v. Benisek [SCOTUSbrief]
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Lamone v. Benisek [SCOTUSbrief]


The Supreme Court has been wrestling with
the issue of gerrymandering for decades and the Court has been closely split, uh, for
several decisions in a row on what the Constitution expects to be done when the Court identifies,
uh, a severe, partisan gerrymander. And the inability of the Court to, uh, reach any
real consensus on that has meant that the issue, uh, was always going to come back,
and here it is again this year. This is Lamone versus Benisek and it was based
on a First Amendment retaliation theory. Now, that’s interesting, because the Court
has never had to squarely face that theory for why gerrymandering might be unconstitutional. The First Amendment, uh, has spun off a category
of cases called First Amendment retaliation cases, and that is when the government treats
you less well because of your opinions or the way you’ve voted or things that you’ve
said. In the gerrymandering situation what the argument
is, maybe they would have some other reasons to draw a line, but if their reason was that
they were annoyed that western Maryland, in that part of the state, had been voting for
the opposite party from them, and they wanted to punish them by diluting their political
influence, they wanted to strike back against western Maryland for having elected the “wrong”
candidate in the past, then that was retaliation against voters, uh, for their previous votes. Now, when the Maryland map was devised, the
governor then was Martin O’Malley, a Democrat who used the process to, uh, bring advantage
to Democratic candidates. Uh, in particular, for the sixth district,
it had an incumbent Republican, Roscoe Bartlett, and by drawing the lines in a very clever,
uh, and rather convoluted way, uh, they managed to split up Bartlett’s district, so that Democrats
captured one more, uh, of the seats. The best argument for Lamone is look before
you leap, because you may want to fix this map because it looks so bad to you, but anything
that you announce is going to have to be implemented by lower courts. You could open the floodgates. Not just congressional maps would be challenged,
but state legislative maps for thousands of seats, uh, county council maps, city council
maps, um, school board seats. Uh, people could be filing hundreds, even
thousands of lawsuits. And then you’ve placed a very difficult burden
on the courts, and every time they rule they’re going to be suspected of being political. Much better to keep the courts out of it. The best argument for Benisek is gerrymandering
makes the outcome of elections depend on cleverness and games-playing, rather than on the real
will of the voters. Now, it’s one thing if you draw normal districts
for other reasons and let the chips fall where they may, and one party happens to be lucky
in getting more seats than, uh, its votes. It’s another thing if you’ve stacked the deck
on purpose. We’re not arguing, Benisek would say, for
perfection. We’re not arguing for the courts to get involved
in, uh, the gray areas and the difficult cases. But if you can’t act in cases where an election
was taken away from the people who should have decided it, uh, for the most crass political
reasons, uh, that will itself undermine confidence in the system. No one really argues that politics can be
taken out of the process entirely. No one really argues that every map can be
made perfect, but at least we can clean up some of the most obviously valid abuses here.

4 Comments

  • Michael Hill

    This is one where I have to side w/the liberals. Gerrymandering is a scourge and leaving eliminating it to the legislators who benefit from it is having the fox guard the henhouse. That 1st amendment theory makes a ton of sense to me and I tend to agree with it.

  • Mister Sauga

    Congress can make more strict regulations regarding partisan gerrymandering through law as they have with racial gerrymandering. This would only apply to Congressional districts. We would avoid having to litigate the constitution entirely and would allow the states to handle their own issues of gerrymandering on their own.

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