Lamone v. Benisek

IS PARTISAN GERRYMANDERING A FORM OF RETALIATION IN VIOLATION OF THE FIRST AMENDMENT?

Lamone argues that partisan gerrymandering is not a form of First Amendment retaliation. Lamone explains that a typical First Amendment retaliation case occurs in an executive context and prohibits public employers from firing or otherwise taking adverse action against a “non-policymaking employee”—that is, a public employee whose job does not require political affiliation—because of the employee’s political views. Here, Lamone maintains that the mapmakers involved in the redistricting process did not intend to punish citizens because of their voting patterns or political affiliation. Indeed, Lamone characterizes Benisek’s First Amendment retaliation claim as a “legal fiction.” Lamone contends that, although partisan mapmakers may be biased towards their own political party, biased redistricting does not necessarily indicate an intent to punish citizens who vote for or associate with the opposing party. Lamone asserts that equating a political party’s “natural inclination to serve its members’ interests” with “malicious retribution against members of a competing party” is unfair. If the Supreme Court holds otherwise, Lamone posits, it will encourage every losing party in a political battle to claim that the winning party enacted legislation that the loser opposed in response to the loser’s constitutionally-protected speech. Regardless, Lamone claims that there is no evidence in this case that any legislator or mapmaker intended to punish voters by redrawing Maryland’s electoral maps.

Further, Lamone maintains that First Amendment retaliation principles do not apply to legislative enactments. Instead, Lamone argues that courts apply First Amendment retaliation principles to executive actions—instances where a government official retaliates against a specific individual for that individual’s exercise of constitutionally-protected speech. Unlike executive action, Lamone explains, legislative action “always involves consideration[s] of speech,” and the legislative process frequently involves references to members’ political affiliation. Therefore, Lamone claims, “the retaliation analysis . . . was never intended to work [] in challenges to legislation enacted by legislators.” Lamone extends this reasoning to referendum situations where citizens directly vote on legislative matters. Lamone notes that more than 1.5 million voters approved Maryland’s redistricting, and that attributing to these voters an intent to punish a subset of voters based on the subset’s political views would be difficult to prove and would undermine the referendum as a “basic instrument of democratic government.”

Benisek counters that partisan gerrymandering violates the First Amendment because it is retaliatory in nature. Benisek explains that, as a foundational First Amendment principle, the government may not impose a burden on a citizen in response to the citizen’s political views. Benisek notes that a citizen’s political views are often reflected in the citizen’s voting history and party affiliations. Benisek contends that if the government imposes a burden on a citizen because of the citizen’s voting history or prior party affiliations, the government’s First Amendment violation is “retaliatory” in nature. Applying this framework to partisan gerrymandering, Benisek claims that that the question “is not whether lawmakers acted with vengeance or ‘malicious retribution’”—as Lamone claims—but rather, whether lawmakers burdened a subset of voters “because of [the subset’s] political association, participation in the electoral process, voting history, or expression of political views.” Benisek acknowledges that the government may sometimes impose a burden on a citizen (for example, when a police officer arrests a pedestrian), but argues that the government may never impose a burden on a citizen because of the citizen’s political views.

Here, Benisek argues that the Maryland government deliberately remapped the congressional districts in a way that benefitted the favored political party and burdened the disfavored political party because of voters’ “expressive conduct,” which is a form of First Amendment retaliation. Indeed, Benisek contends that the Maryland government “methodically dismantled” and reassembled congressional districts based on citizens’ voting history and party affiliations. Benisek maintains that the congressional redistricting inflicted a “concrete burden” on citizens who expressed their views by voting for or affiliating with the disfavored party, which made it “virtually impossible” for those citizens to achieve electoral success. Because of the redistricting, Benisek asserts that the disfavored party experienced substantial vote dilution, which discouraged citizens from participating in congressional politics, caused citizens to feel “disenfranchised,” and precipitated a nosedive in the disfavored party’s fundraising. Therefore, Benisek claims that the Maryland government’s partisan gerrymander “is a burden upon protected speech” in violation of the First Amendment.

WHAT TEST SHOULD THE COURT ADOPT FOR ADJUDICATING PARTISAN GERRYMANDERING CLAIMS?

Lamone urges the Court to replace the district court’s First Amendment retaliation test with a test that is “limited, precise, clear, manageable, politically neutral, and reliably fair.” To be sure, Lamone acknowledges that “excessive partisanship” in redistricting is impermissible because it unjustifiably bestows upon a political party the ability to entrench its power over the populace. Nonetheless, Lamone argues that redistricting necessarily involves political considerations. The challenge, Lamone explains, is in distinguishing “acceptable” from “excessive” political considerations. Lamone recognizes that the Court has yet to develop a test that addresses this vexing issue. However, Lamone maintains that the Court can draw on well-developed principles of fairness, precision, and political neutrality to guide it in formulating a new test.

Lamone contends that the “garden variety” First Amendment retaliation test adopted by the district court fails to provide the “much needed standard” for adjudicating partisan gerrymandering cases. Lamone states that to establish a First Amendment claim under the district court’s test, a plaintiff must prove three elements: intent, injury, and causation. Regarding the first element, Lamone argues that any degree of partisanship will satisfy the intent requirement, because any intent to benefit one political party can be construed as an intent to burden another political party. Therefore, plaintiffs in every partisan gerrymandering case could likely satisfy the intent element, meaning that this element fails to distinguish between “acceptable” and “excessive” political consideration. Regarding the second element, Lamone asserts that the district court’s test cannot precisely measure injury from vote dilution and devolves into a question of whether the injury was “at least somewhat more than de minimis or trivial.” Likewise, Lamone posits that associational injuries “are even more open-ended and imprecise” because the associational injury standard only requires a showing that a citizen’s ability to associate with the citizen’s political party of choice was “somehow indirectly burdened.” Finally, regarding the causation element, Lamone contends that the district court has not offered a reliable standard for determining whether injuries were caused by partisan gerrymandering or something else, “irrespective of redistricting or party affiliation.”

Benisek counters that the First Amendment partisan gerrymandering claim is justiciable. Benisek explains that “justiciability” is a concept that reflects a limitation imposed by the Constitution’s “case or controversy” requirement, which restricts the types of cases that a federal court may adjudicate. One such limitation, Benisek notes, is represented in the political-question doctrine, which requires a court to have legal, rational standards for deciding a case and prohibits a court from deciding purely political questions. Here, Benisek acknowledges that the Court may be tempted to “shirk” its duty to adjudicate this partisan gerrymandering case because its decision “may have significant political overtones.” However, Benisek contends that the Court is obligated to hear and decide a case if “familiar constitutional principles and manageable legal standards” provide a workable framework for the Court to decide the case.

Benisek asserts that the First Amendment retaliation framework provides the “familiar constitutional principles and manageable legal standards” for adjudicating the partisan gerrymandering claim. Regarding “intent,” the first element of the three-prong First Amendment retaliation test, Benisek maintains that the Court should focus on whether officials targeted a subset of citizens because of their protected speech. Benisek contends that this test for discerning “intent” is “precise and limited,” rendering it distinct from a test that focuses on the ordinary “tit-for-tat of capital-city politics,” which Lamone decries. Regarding the second element, “injury,” Benisek argues that the injuries here—vote dilution and associational burdens—are “practical and functional” and amenable to Court evaluation. Vote dilution, Benisek claims, “is undeniably a justiciable harm” because there are several well-developed tests for determining vote dilution, including the test under Section 2 of the Voting Rights Act and the Court-sanctioned electoral opportunity test. Further, Benisek posits that an array of Court cases—specifically, ballot-access cases—provide clear guidance to the Court for determining associational burdens in a partisan gerrymandering case. Finally, Benisek asserts that courts regularly determine whether “unconstitutional factors are a but-for-cause of official conduct,” thereby rendering the causation prong justiciable.