Why is America’s legislative system so dysfunctional? One cause for the persistent gridlock in Washington could be partisan redistricting, also known as gerrymandering, a practice in which one party attempts to gain an electoral advantage in reapportioning districts every 10 years after Census Bureau data is released.
This fall, the Supreme Court will hear Shapiro v. McManus, a case that could have an impact in the fight against gerrymandering.
Stephen M. Shapiro, a former federal worker from Bethesda, believes that the current political map drawn by Maryland Democrats after the 2010 Census is unconstitutional because it put Republicans at a disadvantage.
In 2013, he filed suit, representing himself. A federal judge last year dismissed the case, calling it frivolous. The Supreme Court will be reviewing whether a lower court judge had the authority to dismiss the suit before it was heard by a three-judge panel. If the high court rules in Shapiro’s favor, challenges to partisan redistricting could move faster through the legal system.
“Right behind that procedural question is the substance of the First Amendment challenge,” said Atlanta attorney Jeremy Farris, who filed an amicus brief in the case on behalf of Common Cause, a liberal nonprofit political advocacy group based in Washington.
“Now, I don’t know whether or not that is going to be addressed in oral argument or in the opinion,” Farris continued. “We will see. We’ll have to also see what Maryland says in its brief. But Common Cause is very interested to argue that such extreme partisan gerrymandering of state or congressional legislative districts is unconstitutional, and one of the reasons that it is unconstitutional is because it is viewpoints-based discrimination under the First Amendment.”
Louis Seidman, a professor of constitutional law at Georgetown University, said that partisan redistricting is undemocratic and “has caused quite a bit of damage to the country.” However, given the current makeup of the top court, he doesn’t think the justices would rule on or even consider the constitutionality of gerrymandering.
“What a plurality of the justices have said is that it is a political question that’s committed to the political branches and that the courts ought not to be involved in it,” said Seidman. However, the professor said his view is that the courts should be involved in the question of gerrymandering.
Washington attorney Nathan Lewin said he does not believe that this case will have a wide impact in terms of addressing gerrymandering, saying he is “100 percent” sure that the justices will not examine the underlying claims regarding gerrymandering and focus only on whether a single judge can dismiss the case or if it merits being heard by a three-judge panel.
But the Supreme Court did recently strike a blow against gerrymandering.
In June, the high court, in a 5-4 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission, ruled in favor of that state’s bipartisan commission. The ruling, which upheld the right of Arizona voters to form a commission with authority to redistrict, is seen as one that could pave the way for other states to change their redistricting practices.
Soon after, Maryland Gov. Larry Hogan established a nonpartisan commission to explore ways to reform the redistricting process.
Supreme Court Justice Ruth Bader Ginsburg penned the majority opinion in the Arizona case, upholding the right of Arizona voters to give an independent commission redistricting authority. She wrote that “the people of Arizona turned to the initiative to curb the practice of gerrymandering. In so acting, Arizona voters sought to restore ‘the core principle of republican government,’ namely, ‘that the voters should choose their representatives, not the other way around.’”