Washington D.C. – This Wednesday, the U.S. Supreme Court heard oral arguments in one of the three partisan gerrymandering cases before the court this term (Benesik v. Lamone). The transcript is available here. In this novel first amendment challenge to Maryland’s sixth congressional district, the court appears to remain befuddled at how to apply neutral standards when measuring just how much political gerrymandering is too much, although almost all of the justices seem to agree that Maryland’s sixth district is “too much.” Even the officials involved in redrawing the district unapologetically confirm that the intent was to secure Democratic partisan advantage, something that the sixth has done consistently.
If this were a simple criminal case, it would be a slam dunk in court; the defendants confess to the crime and there is ample proof a crime was indeed committed. So why do the Justices have such a hard time? The crime of partisan gerrymandering is not defined at all. The court up to this point has tentatively labeled unchecked partisan gerrymandering a “crime” so to speak, but have no reliable way to gauge exactly at what point it becomes a crime. In other words, because some partisan gerrymandering is acceptable practice, there is great difficulty in pinpointing when it crosses the line.
As we wait for the audio release of the argument, below is a list of topics discussed / considered by the Justices and attorneys arguing the case. You can also read reviews of the oral argument by Scotusblog, NPR, NYT, Wash. Post, and the Election Law Blog.
Topics Discussed in Oral Argument
- The efficiency gap measure was not discussed in much detail.
- The looming prospect of unhinged partisan gerrymandering in the 2020 cycle of redistricting.
- Whether it’s too late in the decade to do anything about Maryland’s sixth congressional.
- How partisan gerrymandering compares to racial gerrymandering.
- A suggestion (by Justice Breyer) for a reargument in the Fall along with companion gerrymandering cases from WI and NC.
- How the court should grapple with defining “partisan retaliation” under First Amendment theory.
- Since the plaintiffs waited so late in the decade to challenge the district drawn in 2011, whether there is any harm in waiting for the next round of redistricting in 2021.