If You Don’t Like Gerrymanders, You Should Care About Shapiro

Every ten years legislatures across the country redraw the boundaries of both state and congressional districts, and they typically do so in a way that protects incumbents and the majority party from real political competition. Democrats and Republicans both play this game, in essence choosing their constituents by drawing the lines to favor themselves and their political parties.

Of course, voters should choose their representatives, not the other way around. Decades ago, Congress created a forum for voters to complain about the worst abuses in redistricting—the three-judge court.

Yet the U.S. Supreme Court could make it significantly harder to bring such cases if it rules in favor of Maryland in Shapiro v. McManus, which it heard on November 4, 2015.

The 2011 Maryland congressional map is widely viewed as one of the most egregious partisan gerrymanders in recent memory. Democrats, who controlled the state legislature, drew district lines to ensure that 7 of the 8 congressional seats would be “safe” for Democrats. They largely succeeded by manipulating districts into extremely odd shapes – one which a judge described as a “broken-winged pterodactyl, lying prostrate across the center of the state.”

But a district judge quickly dismissed the case challenging that map by holding that the plaintiff had not presented a valid legal theory.

The problem, however, is that the single judge did not have the authority to make that decision. Under the statute, redistricting cases must go before a three-judge panel comprised of two district judges and one court of appeals judge. A single district judge may decide only preliminary issues and may not render a decision on the merits. The dismissal here was not on a preliminary issue but incorrectly dismissed the case outright, as I argued (along with Professor Michael Solimine) in a “friend of the Court” amicus curiae brief in this case.

There are two significant benefits to the three-judge court process for redistricting cases: first, Congress determined that three judges are better than one in avoiding actual or perceived bias in certain cases involving politics; and second, Congress allowed a direct appeal to the U.S. Supreme Court from a three-judge court’s decision, skipping the intermediate court of appeals stage. This speeds up the process so that states may prepare for their elections, and it ensures that the Supreme Court will weigh in on these highly contentious and difficult issues. Decisions of a single judge, by contrast, go to the intermediate court of appeals, and the Supreme Court does not have to hear the dispute at all.

The U.S. Supreme Court could significantly hamper these benefits of the three-judge court process if it rules for Maryland in Shapiro. If it affirms that a single judge can dismiss a case when the judge disagrees with the plaintiff’s legal theory, without referring the case to a three-judge court, then it will be much harder to bring claims against the worst gerrymandering abuses.

To be sure, it is already exceedingly difficult to challenge political gerrymandering. In a 2003 case, the Supreme Court was unable to agree on a principled standard for finding a partisan gerrymandering unconstitutional. Four justices said that the courts should never hear these cases, as they were better resolved through the political process; four justices proposed various standards to overturn partisan gerrymanders; and Justice Kennedy, in the middle, would not go along with any of the proposed standards but also would not close the door to finding a standard in the future. He also expressly suggested that a partisan gerrymander might violate the affected voters’ First Amendment rights.

That is exactly what the Maryland plaintiffs argued here, invoking the First Amendment to challenge Maryland’s map. Yet the single district judge failed to engage with the argument, instead simply dismissing the case because the Supreme Court has never agreed on a standard to use for partisan gerrymandering.

If the Supreme Court upholds that decision, it will mean that a legal standard to consider partisan gerrymanders will never emerge – leaving politicians to their political devices without any meaningful oversight. Any claim of political gerrymandering must rely on a new legal theory. But if the single judge can dismiss the case without sending it to a three-judge court because the plaintiff is proposing something new, then there will never be a considered and deliberate ruling on the plaintiff’s proposed standard. And the failure to consider the claim might be seen as the product of the single judge’s ideology – the very concern Congress sought to avoid by creating the three-judge court process. Moreover, by dismissing the case without sending it to a three-judge court, the issue is much less likely to reach the U.S. Supreme Court, giving the Court fewer opportunities to pass upon the question.

Of course, requiring the Court to weigh in for every redistricting case could have its own problems. It could increase the Court’s docket in highly political cases where the justices might rather stay out of it or at least allow the issue to “percolate” in the lower courts before having to weigh in. Several justices mentioned this very concern during the oral argument in this case. Yet the numbers belie that concern. Although the Court typically hears a few election law cases every year, redistricting disputes coming from mandatory appeals of three-judge court decisions do not dominate the Court’s attention. In addition, the Court has a mechanism by which it can summarily affirm a three-judge court’s decision without using up the resources of oral argument. So the Court’s workload will not increase very much. Although limiting the ability of a single judge to dismiss these cases, and instead requiring the judge to refer to them to a three-judge court, could possibly expand the Court’s docket when the cases are appealed, the opposite result is far worse: the inability of plaintiffs to propose ways to ferret out unlawful partisan gerrymandering.

Without meaningful judicial oversight, politicians will be politicians, creating election rules that will help their and their parties’ chances in the next election. The seemingly-arcane procedural issue in Shapiro can have a major impact on the judiciary’s ability to stop these abuses. The Court should recognize this fact and send the case back to a three-judge panel to decide the merits. It should keep the courthouse door open so judges may police the worst political gerrymanders.

Joshua A. Douglas

Joshua A. Douglas is a professor of election law and civil procedure at the University of Kentucky College of Law.