Will Gerrymander Reform Remain Possible?

Joshua A. Douglas, a professor of election law and civil procedure at the University of Kentucky, has a piece up at Ten Miles Square on the importance of the Shapiro v. McManus case that the Supreme Court heard on November 4th. The case originates in Maryland where the Democrats who controlled the redistricting process after the 2010 census created a doozy of a gerrymander. One judge who looked at it described one of the resulting congressional districts as a “broken-winged pterodactyl, lying prostrate across the center of the state.”

Prof. Douglas argues that a lower court judge unjustifiably dismissed a challenge to the Maryland redistricting, and that if his decision is allowed to stand it will cut off reformers’ ability to ever establish “a legal standard to consider partisan gerrymanders.”

Here’s the heart of his argument:

Decades ago, Congress created a forum for voters to complain about the worst abuses in redistricting—the three-judge court…

…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.

You should read the whole thing, particularly if you are interested in reforms that will make it so voters get to choose their representatives again, rather than the other way around.

Martin Longman

Martin Longman is the web editor for the Washington Monthly and the main blogger at Booman Tribune.