The Supreme Court has been wrestling with the issue of gerrymandering for decades and
the Court has been closely split, uh, for several decisions in a row on what the Constitution
expects to be done when the Court identifies, uh, a severe, partisan gerrymander.
And the inability of the Court to, uh, reach any real consensus on that has meant that the
issue, uh, was always going to come back, and here it is again this year.
This is Lamone versus Benisek and it was based on a First Amendment retaliation theory.
Now, that's interesting, because the Court has never had to squarely face that theory
for why gerrymandering might be unconstitutional.
The First Amendment, uh, has spun off a category of cases called First Amendment retaliation
cases, and that is when the government treats you less well because of your opinions or
the way you've voted or things that you've said.
In the gerrymandering situation what the argument is, maybe they would have some other reasons
to draw a line, but if their reason was that they were annoyed that western Maryland, in
that part of the state, had been voting for the opposite party from them, and they wanted
to punish them by diluting their political influence, they wanted to strike back against
western Maryland for having elected the "wrong" candidate in the past, then that was retaliation
against voters, uh, for their previous votes.
Now, when the Maryland map was devised, the governor then was Martin O'Malley, a Democrat
who used the process to, uh, bring advantage to Democratic candidates.
Uh, in particular, for the sixth district, it had an incumbent Republican, Roscoe Bartlett,
and by drawing the lines in a very clever, uh, and rather convoluted way, uh, they managed
to split up Bartlett's district, so that Democrats captured one more, uh, of the seats.
The best argument for Lamone is look before you leap, because you may want to fix this
map because it looks so bad to you, but anything that you announce is going to have to be implemented
by lower courts.
You could open the floodgates.
Not just congressional maps would be challenged, but state legislative maps for thousands of
seats, uh, county council maps, city council maps, um, school board seats.
Uh, people could be filing hundreds, even thousands of lawsuits.
And then you've placed a very difficult burden on the courts, and every time they rule they're
going to be suspected of being political.
Much better to keep the courts out of it.
The best argument for Benisek is gerrymandering makes the outcome of elections depend on cleverness
and games-playing, rather than on the real will of the voters.
Now, it's one thing if you draw normal districts for other reasons and let the chips fall where
they may, and one party happens to be lucky in getting more seats than, uh, its votes.
It's another thing if you've stacked the deck on purpose.
We're not arguing, Benisek would say, for perfection.
We're not arguing for the courts to get involved in, uh, the gray areas and the difficult cases.
But if you can't act in cases where an election was taken away from the people who should
have decided it, uh, for the most crass political reasons, uh, that will itself undermine confidence
in the system.
No one really argues that politics can be taken out of the process entirely.
No one really argues that every map can be made perfect, but at least we can clean up
some of the most obviously valid abuses here.