Berks Barrister Winter 2018 - 13

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Why is Everyone Talking About Gerrymandering?
Continued from page 11

The Elections Clause states: "The Times, Places and Manner of
holding Elections for Senators and Representatives, shall be prescribed
in each state by the Legislature thereof; but the Congress may at time by
Law make or alter such Regulations, except as to the Places of chusing
Senators."19
Plaintiffs argued that legislators are only allowed to use neutral
factors in redistricting. Anything more violates the "Times, Places and
Manner" limitations of Elections Clause. Judge D. Brooks Smith held
that the plaintiff 's claim was non-justiciable as a matter of law and that
change in the electoral regulations governing the redistricting process
can be achieved "only through the legitimate functioning of the political
process." 20 There is no standard in the Elections Clause that would allow
a court to determine that a citizen's right to vote has been infringed by a
partisan gerrymander.
Writing in dissent, Judge Baylson noted that "Gerrymandering is a
wrong in search of a remedy."21 Judge Baylson opined that advancements
in technology have made partisan gerrymandering much worse and
the law must keep up.22 He believes that partisan gerrymandering
is justiciable. Judge Baylson proposed an objective, visual test for
impermissible political gerrymandering that does not require any partisan
evidence. Judge Baylson cited the famous adage that "[w]hen I see a bird
that walks like a duck and swims like a duck and quacks like a duck, I call
that bird a duck."23 Judge Baylson agreed with plaintiffs that legislators
are bound under the Elections Clause to use neutral factors during the
redistricting process.24 Access to the pleadings filed in Agre v. Wolf can
be found at https://www.brennancenter.org/legal-work/agre-v-wolf.
Gill vs. Whitford25 and Benisek v. Lamone26
There are two cases currently before the Supreme Court of the
United States, one alleging an unconstitutional gerrymander by
Republicans in the Wisconsin state assembly redistricting and one
alleging an unconstitutional gerrymander by Democrats in Maryland
congressional redistricting. Gill vs. Whitford was argued before SCOTUS
on October 3, 2017 and oral argument in Benisek v. Lamone is expected
to be scheduled some time in March.
In Gill vs. Whitford, a federal court panel found that the state
assembly plan adopted by Wisconsin's Republican-controlled legislature
in 2011 was an unconstitutional partisan gerrymander and that the plan
violated the Equal Protection Clause and the plaintiffs' First Amendment
freedom of association. As in Pennsylvania, Democrats in Wisconsin won

Agre v. Wolf, Memorandum of Judge Smith, pages 6, 50.
Agre v. Wolf, Memorandum of Judge Baylson, page 1.
22
Agre v. Wolf, Memorandum of Judge Baylson, page 110.
23
Agre v. Wolf, Memorandum of Judge Baylson, page 122 (internal citation
omitted).
24
Agre v. Wolf, Memorandum of Judge Baylson, page 124.
25
137 S. Ct. 2268, 198 L. Ed. 2d 698 (2017)
26
No. 17-333, 2017 WL 3839474, at *1 (U.S. Dec. 8, 2017)
27
No. 1:16-CV-1026, 2017 WL 3981300, at *1 (M.D.N.C. Sept. 8, 2017)
20
21

a majority of the statewide assembly vote in 2012, but that majority vote
did not translate into assembly seats. Despite capturing only 46.5% of
the vote, Republicans won 60 of the 99 assembly seats. The federal court
panel found that the Wisconsin map displayed both bad intent and bad
effect. Access to the pleadings filed in Gill vs. Whitford can be found at
https://www.brennancenter.org/legal-work/whitford-v-gill.
In Benisek v. Lamone it is Republican voters crying foul and alleging
that a Democratic gerrymander violated both the plaintiffs' right to
representation guaranteed by Article 1 Section 2 of the U.S. Constitution
and their First Amendment right to protection of political association.
Access to the pleadings filed in Benisek v. Lamone can be found at
http://www.brennancenter.org/legal-work/benisek-v-lamone-amicusbrief .
Common Cause v. Rucho27 and League of Women Voters of North Carolina
vs. Rucho28
Pursuant to a Memorandum Opinion filed January 9, 2018, a threejudge panel of the United States District Court for the Middle District
of North Carolina concluded that the 2016 congressional redistricting
plan enacted by the North Carolina legislature was an unconstitutional
partisan gerrymander that did not advance "any democratic,
constitutional, or public interest."29 The court found that partisan
gerrymandering "runs contrary to numerous fundamental democratic
principles and individual rights enshrined in the Constitution."30 This
ruling is reportedly a first where a redistricting plan was struck down
based on partisan gerrymandering.
The panel found that the 2016 plan violates the Equal Protection
Clause because the plan was enacted with the intent of discriminating
against voters who favored non-Republican candidates, the plan had
that discriminatory effect, and there is no legitimate state interest to
justify it. 31 Further, the 2016 plan "violates the First Amendment by
unjustifiably discriminating against voters based on their previous
political expression and affiliation." 32 And finally, the 2016 plan "violates
Article I by exceeding the scope of the General Assembly's delegated
authority to enact congressional election regulations and interfering with
the right of 'the People' to choose their Representatives." 33
The General Assembly was ordered to enact a remedial redistricting
plan by January 24, 2018.34 According to news reports, North Carolina
lawmakers plan to appeal the ruling.

No. 1:16-CV-1164 (the League of Women Voters of North Carolina case was
consolidated with the Common Cause case by Order of the Court dated February 7, 2017.
29
Common Cause, Memorandum Opinion at page 2.
30
Common Cause, Memorandum Opinion at page 3.
31
Common Cause, Memorandum Opinion at page 25.
32
Common Cause, Memorandum Opinion at page 25.
33
Common Cause, Memorandum Opinion at page 25.
34
Common Cause, Memorandum Opinion at page 189.
28

Winter 2018 | 13

http://www.berksbar.com/ https://www.brennancenter.org/legal-work/whitford-v-gill http://www.brennancenter.org/legal-work/benisek-v-lamone-amicus https://www.brennancenter.org/legal-work/agre-v-wolf

Berks Barrister Winter 2018

Table of Contents for the Digital Edition of Berks Barrister Winter 2018