Supreme Court Gives New Life To MD Gerrymander Case

I’ve written about this previously, and today the Supreme Court breathed new life into a gerrymandering claim against Maryland’s 2011 congressional redistricting plan. By a unanimous vote of 9-0, the Court (per Justice Scalia) sent the case back to the district court to convene a three judge panel to hear the case on the merits. As previously noted, the precise issue before the court was procedural so this doesn’t mean that the claim will prevail. But please note this language - you can bet a dollar the three judges hearing the case will:

Without expressing any view on the merits of petitioners’ claim, we believe it easily clears Goosby’s low bar; after all, the amended complaint specifically challenges Maryland’s apportionment “along the lines suggested by Justice Kennedy in his concurrence in Vieth [v. Jubelirer, 541 U. S. 267 (2004)].” App. to Brief in Opposition 44. Although the Vieth plurality thought all political gerrymandering claims nonjusticiable, JUSTICE KENNEDY, concurring in the judgment, surmised that if “a State did impose burdens and restrictions on groups or persons by reason of their views, there would likely be a First Amendment violation, unless the State shows some compelling interest. . . . Where it is alleged that a gerryman- der had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.” Vieth v. Jubelirer, 541 U. S. 267, 315 (2004). Whatever “wholly in- substantial,” “obviously frivolous,” etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a Justice of this Court and uncontradicted by the majority in any of our cases. Accordingly, the District Judge should not have dismissed the claim as “constitutionally insubstantial” under Goosby. 

I was an appellate law clerk here in Maryland and I’ve been doing appeals my entire career. When an appeals court sends a case back to a lower court on procedural grounds and finds a way to address the merits of the case, that’s a total giveaway. Scalia is sending a clear message to the three judge panel who will hear the case that this is a legitimate claim that needs to be taken seriously.

You hear that ringing noise in the distance? That’s the death knell for Maryland’s 2011 redistricting plan. It just got a whole lot louder this morning - let’s watch and see what happens. This was a big first step in the right direction, not just for Maryland but for the entire country.

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