Shapiro v. McManus

Filing 88

OPINION (filed 8/24/16) (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
STEPHEN M. SHAPIRO, et al.,
Plaintiffs,
v.
DAVID J. MCMANUS, JR., et al.,
Defendants.

*
*
*
*
*
*
*
*
*
*
*

Case No.:

1:13-cv-03233-JKB

COMMON CAUSE; THE BRENNAN CENTER
FOR JUSTICE AT N.Y.U. SCHOOL OF
LAW; THE CAMPAIGN LEGAL CENTER, INC.,
Amici Supporting Plaintiffs.

Michael B. Kimberly and Paul Whitfield Hughes, MAYER BROWN LLP,
Washington, D.C., for plaintiffs.
Jennifer L. Katz
ATTORNEY
GENERAL
defendants.

and
OF

Jeffrey Lewis Darsie,
MARYLAND,
Baltimore,

OFFICE OF
Maryland,

THE
for

Benjamin W. Thorpe, Emmet J. Bondurant, BONDURANT MIXSON AND
ELMORE LLP, Atlanta, Georgia, Gregory L. Diskant, Susan
Millenky, PATTERSON BELKNAP WEBB AND TYLER LLP, New York, New
York, and Michael A. Pretl, Riverton, Maryland, for Amicus
Common Cause.
Charles E. Davidow, Washington, D.C., Pietro
Signoracci, Robert A. Atkins, New York, New York, PAUL WEISS
RIFKIND WHARTON AND GARRISON LLP, and Michael Li, New York, New
York, for Amicus The Brennan Center for Justice at N.Y.U. School
of Law.
Paul March Smith, JENNER AND BLOCK LLP, Washington,
D.C., for Amicus The Campaign Legal Center, Inc.
Filed:

August 24, 2016

Before Niemeyer, Circuit Judge, and Bredar and Russell, District
Judges.

Judge Niemeyer wrote the opinion in which Judge Russell joined.
Judge Bredar wrote a dissenting opinion.

2

NIEMEYER, Circuit Judge:
The

plaintiffs,

who

are

Maryland

voters

and

registered

Republicans, challenge the constitutionality of Maryland’s 2011
congressional redistricting law under the First Amendment and
Article I, §§ 2 and 4, of the U.S. Constitution.

They allege in

their second amended complaint (1) that the State drew the lines
of

Maryland’s

intent

to

Sixth

punish

Congressional

and

retaliate

District
against

with
them

the
and

specific
similarly

situated voters by reason of how they voted and their political
party registration; (2) that the State, in furtherance of this
purpose, drew the Sixth District’s lines in such a manner as to
dilute their vote and burden their political expression; and (3)
that the State succeeded in its efforts, inflicting a tangible
and concrete adverse effect.
the

plaintiffs’

complaint

The question presented is whether
states

a

justiciable

claim

that

survives the State’s motion to dismiss under Federal Rule of
Civil

Procedure

12(b)(6).

We

conclude

that

it

does,

recognizing, as the Supreme Court stated in remanding this case
to this three-judge court, that the plaintiffs’ “legal theory
[is]

.

.

.

uncontradicted

by

the

majority

in

any

of

[the

Court’s] cases,” Shapiro v. McManus, 136 S. Ct. 450, 456 (2015),
and

that

their

complaint

adequately

3

employs

First

Amendment

jurisprudence

to

state

a

plausible

claim

for

relief.

Accordingly, we deny the State’s motion to dismiss.
I
A
At

this

stage,

we

take

the

factual

allegations

of

the

Maryland

was

plaintiffs’ complaint as true.
Based

on

the

results

of

the

2010

census,

entitled to eight seats in the U.S. House of Representatives,
the same number it had been allotted since the 1960 census.
Although
2010,

Maryland’s

its

throughout

population

population
the

State,

increased

growth

was

not

necessitating

districts of equal population.

by

9%

from

evenly

2000

to

distributed

redistricting

to

ensure

See Evenwel v. Abbott, 136 S.

Ct. 1120, 1124 (2016) (recognizing that because “States must
draw

congressional

perfect

equality

districts
as

with

possible,”

populations
States

as

“must

close

to

regularly

reapportion districts to prevent malapportionment”).
On

July

appointed

4,

five

2011,

individuals

Advisory Committee:
of

Appointments

Governor

and

to

Martin
the

O’Malley,

Governor’s

a

Democrat,

Redistricting

(1) Jeanne Hitchcock, Maryland’s Secretary
a

former

Deputy

Mayor

of

Baltimore,

a

Democrat; (2) State Senate President Thomas V. Mike Miller, Jr.,
a Democrat; (3) House of Delegates Speaker Michael E. Busch, a

4

Democrat;
Governor

(4)

Richard

O’Malley’s

Stewart,

reelection

a

businessman

campaign

for

who

chaired

Prince

George’s

County, a Democrat; and (5) James J. King, a businessman who had
previously served one term in the Maryland House of Delegates, a
Republican.
The
drafting
State’s

Advisory
a

Committee

redistricting

eight

plan

congressional

census results.

was

charged

and

with

proposing

districts

in

the

a

task
for

map

light

of

of
the

the

2010

To that end, it held 12 public meetings across

the State between July 23 and September 12, 2011, receiving more
than 350 comments from members of the public.

The plaintiffs

allege,

conducted

however,

that

the

Advisory

Committee

its

actual “deliberations and calculations entirely behind closed
doors.”

Second Am. Compl. ¶ 45.

When drawing its redistricting

map, the Advisory Committee had access to the Maryland Board of
Elections’

statistical

geographic
affiliation,
“voter

information
and

voter

registration

by

data,

which

provided

about

voter

turnout

across

precinct,

“highly

detailed

registration,
the

State,”

election

day

party

including

turnout

by

precinct and party, party share of vote by voting category, and
voter consistency.”
The

Advisory

Id. ¶¶ 46-47.
Committee

completed

its

map

on

October

4,

2011, with King, the Committee’s lone Republican, casting the
sole dissenting vote, and presented it to the Governor.

5

After

posting the map online and receiving additional comments from
the public, the Governor announced on October 15 that he would
submit

to

the

legislature

a

plan

that

was

similar” to the Advisory Committee’s proposal.

“substantially
Two days later,

on October 17, the Governor’s proposed redistricting map was
introduced as Senate Bill (“S.B.”) 1 at an emergency legislative
session.

That same day, the Senate Committee on Reapportionment

and Redistricting, along with the House Rules Committee, held a
joint

hearing

on

S.B.

1

before

voting

to

approve

the

bill.

After adopting minor technical amendments, the Senate passed the
bill

the

next

day,

October

18,

sending

it

to

the

House

of

Delegates, which, after making additional technical amendments,
passed it on October 19.

The Senate concurred in the House’s

technical amendments, and the Governor signed S.B. 1 into law on
October 20, 2011, three days after it had been introduced.

See

Md. Code Ann., Elec. Law §§ 8-701 to -709.
The

enacted

State

Plan

created

eight

congressional

districts that were mathematically equal in population -- seven
of the districts having an adjusted population of 721,529 and
the

eighth

changes

having

effected

extensive

than

an

by

those

adjusted

the

State

needed

to

population
Plan,

of

however,

achieve

721,528.
were

population

far

The
more

equality.

Indeed, while “six of the eight existing congressional districts
remained within 3% of the ideal size of 721,529 people[,] . . .

6

the

Plan

shuffled

district

to

nearly

another,

million people.”

one-in-three

scrambling

the

Second Am. Compl. ¶

Marylanders

from

one

of

1.6

representation

61.

The reshuffling of Maryland’s population was particularly
extensive

with

District.
Maryland

respect

to
the

Historically,
and

following

the

much

of

Supreme

Maryland’s
Sixth

District

north-central
Court’s

Sixth

included

Maryland.

1964

holding

Congressional

In
in

western

the

years

Wesberry

v.

Sanders, 376 U.S. 1 (1964), that States must conduct regular
redistricting to ensure districts of equal population, Maryland
adopted

a

series

congressional

of

elections

five

maps

held

that

from

1966

were

used

through

in

2010.

the

23

Under

those maps, the Sixth District always included the State’s five
most

northwestern

counties

in

their

entirety:

Garrett,

Allegany, Washington, Frederick, and Carroll Counties.
years,

the

Sixth

District

also

included

various

Over the

portions

of

Baltimore, Howard, Montgomery, and Harford Counties to achieve
the appropriate population count.

But the identifiable core,

consisting of the five northwestern counties, stayed constant,
constituting

not

only

a

majority

of

the

territory but also most of its population.

Sixth

District’s

Specifically, after

the State revised its district lines in 1991 using the data from
the 1990 census, 83% of the Sixth District’s population lived in

7

the five northwestern counties,

and that number rose to 88%

under the State’s 2002 Redistricting Plan.
The 2010 census showed that, compared to the ideal district
population of 721,529 residents, the Sixth District had 10,186
extra
census

residents,
data

a

would

variation
have

of

only

1.4%.

required

only

a

Yet,

small

while

the

adjustment

to

remove some 10,000 residents from one of the counties along the
District’s

eastern

edge,

but

not

from

the

five

northwestern

counties, the State completely reshuffled the Sixth District.
It

moved

360,000

residents

out

of

the

Sixth

District

--

virtually one-half of its population -- and then added to the
District 350,000 residents from Montgomery County, a Democratic
stronghold

that

includes

Washington,

D.C.

suburbs.

The

plaintiffs allege that this wholesale shifting and transfer was
done

not

“by

reference

to

geography

legitimate redistricting criteria,”

or

compliance

Second Am. Compl.

with

¶ 7(c),

but rather to dilute the Republican voters’ voice in the next
election.

The complaint alleges further that “a net total of

over 65,000 registered Republican voters” were transferred from
the Sixth District and “a net total of over 30,000 Democratic
voters” were imported into the District, for a swing of some
95,000 voters.

Id. ¶ 4.

Moreover, although Frederick County

had been included in the Sixth District continuously since 1872,
the redistricting split the County’s population roughly in half

8

between

the

Sixth

and

Eighth

Districts.

Similarly,

while

Carroll County had been included in the Sixth District since
1966,

the

redistricting

removed

it

from

the

Sixth

District

entirely and split its population between the Eighth and First
Districts.
The

plaintiffs’

complaint

alleges

that

the

major

reshuffling of the Sixth District’s population directly affected
the District’s political complexion.
District was reliably Republican.
between

January

1943

and

Historically, the Sixth

Indeed, “[i]n the 70 years

January

2013,

the

[D]istrict

was

represented in Congress by members of the Republican Party in
four out of every five years.”

Second Am. Compl. ¶ 78.

2010 election, Representative Roscoe Bartlett, the

In the

Republican

candidate who had represented the Sixth District in Congress
since 1993, won reelection by a margin of 28 percentage points.
But

because

the

areas

removed

from

the

Sixth

District

were

predominantly Republican while the area added was predominantly
Democratic,

the

parties’

respective

shares

of

the

District’s

registered voters roughly reversed so that, at the time of the
2012

general

election,

33%

of

the

new

Sixth

District’s

registered voters were registered as Republicans, while 44% were
registered as Democrats.

In that election, Democratic candidate

John Delaney, a newcomer to politics, defeated Representative
Bartlett

by

21

percentage

points,

9

with

“the

long-time

Congressman’s share of the vote dropp[ing] from 61.45% to 37.9%
in a single election cycle.”

Id. ¶ 86.

Delaney won reelection

in 2014.
Maryland’s

2011

Redistricting

Plan

also

affected

the

contours of other districts, most particularly Maryland’s Eighth
District.

That district had previously included most of the

portion of Montgomery County that was reassigned to the Sixth
District, and it also absorbed many of the citizens of Frederick
and Carroll Counties who were removed from the Sixth District.
After

redistricting,

registered

the

Republicans

Democrats

continued

sizeable

margin.

to

Eighth

rose

District’s

significantly,

outnumber

registered

Specifically,

prior

proportion
but

registered

Republicans
to

of

by

a

redistricting,

registered Democrats outnumbered registered Republicans in the
Eighth District by three to one; after redistricting, the ratio
was roughly two to one.

After redistricting, Representative

Chris Van Hollen, a Democrat, continued to win reelection to
represent the Eighth District after redistricting.
B
Three

Maryland

citizens,

acting

pro

se,

commenced

this

action in November 2013, naming as defendants the Chair and the
Administrator of the State Board of Elections and alleging that
the

2011

Redistricting

Plan

violated

10

their

rights

under

the

First Amendment and Article I, § 2, of the U.S. Constitution.
single

district

court

judge

granted

the

State’s

motion

A
to

dismiss, Benisek v. Mack, 11 F. Supp. 3d. 516 (D. Md. 2014), and
the Fourth Circuit Court of Appeals summarily affirmed, Benisek,
584 F. App’x. 140 (4th Cir. 2014).

The Supreme Court, however,

reversed,

plaintiffs’

concluding

that

the

constitutional

challenge was not “wholly insubstantial” and that therefore it
had to be decided by a district court composed of three judges,
as required by 28 U.S.C. § 2284.
456.

In

doing

so,

the

Court

See Shapiro, 136 S. Ct. at
recognized

that

the

theory

underlying the plaintiffs’ First Amendment claim had originally
been suggested by Justice Kennedy and was “uncontradicted by the
majority in any of [the Court’s] cases.”

Id.

After remand, the plaintiffs, now represented by counsel,
filed

a

plaintiffs

second
and

amended
refining

complaint,
the

adding

theory

six

additional

underlying

their

constitutional challenge to the 2011 congressional Redistricting
Plan.

The six new plaintiffs, as well as at least one of the

original plaintiffs, are all registered Republicans who lived in
the Sixth District prior to the Plan’s enactment.

While three

of these plaintiffs still reside in the Sixth District, four of
them now live in the Eighth District as a result of the Plan.
The plaintiffs’ complaint challenges the State’s “cracking” of
the Sixth District, alleging that those responsible for the 2011

11

Plan “purposefully and successfully flipped [the District] from
Republican

to

Democratic

control

by

strategically

moving

the

[D]istrict’s lines by reason of citizens’ voting records and
known party affiliations.”

Second Am. Compl. ¶ 1.

They allege

that “[t]he drafters of the Plan focused predominantly on the
voting

histories

citizens

of

the

and
State

political-party
in

deciding

how

affiliations
to”

redraw

of
the

the
Sixth

District’s lines and that they “did so with the clear purpose
. . . of diluting the votes of Republican voters and preventing
them from electing their preferred representatives in Congress.”
Id.

¶ 6.

They

allege

further

that

the

Plan

achieved

its

intended effect, imposing a significant burden on the former
Sixth District’s Republican voters by preventing them in 2012
and 2014 “from continuing to elect a Republican representative
. . . , as they had in the prior ten congressional elections.”
Id. ¶ 7(b).

And they maintain that “the State cannot justify

the cracking of the [Sixth] District by reference to geography
or

compliance

¶ 7(c).
redrawing

with

legitimate

redistricting

criteria.”

Id.

Based on these allegations, they claim that the Plan’s
of

the

Sixth

District’s

boundaries

violated

their

rights under the First Amendment and §§ 2 and 4 of Article I of
the U.S. Constitution.
The State again filed a motion to dismiss the complaint,
arguing that the plaintiffs’ claims are nonjusticiable because

12

the plaintiffs “fail[ed] to set forth a discernable, manageable
standard

that

would

permit

this

Court

to

adjudicate

their

claims” under either the First Amendment or Article I.

The

State accepts that “unlawful political gerrymandering claims may
be justiciable in concept” but emphasizes that the Supreme Court
has

yet

to

identify

a

judicially

discernable

and

manageable

standard for adjudicating such claims and has twice indicated
that,

in

the

absence

of

such

a

standard,

gerrymandering claims must be dismissed.

political

See League of United

Latin American Citizens v. Perry (LULAC), 548 U.S. 399 (2006);
Vieth

v.

Jubelirer,

541

U.S.

further that the plaintiffs

267

(2004).

“failed to

The

State

argues

allege that the Plan

imposed any actual restriction on any of their recognized First
Amendment rights.”
The plaintiffs contend that their complaint “offers . . .
what

was

missing

in

Vieth

and

LULAC:

a

clear

and

objective

standard for identifying a constitutionally significant burden
on the plaintiffs’ representational rights.”

Relying on Justice

Kennedy’s statement in his separate opinion in Vieth that “First
Amendment concerns arise where an apportionment has the purpose
and

effect

rights,”

of

541

burdening
U.S.

at

a

314

group

of

(Kennedy,

voters’
J.,

representational

concurring

in

the

judgment), they contend that the First Amendment offers a wellsettled

framework

for

considering

13

political

gerrymandering

claims.

They state that the framework would require the court

to determine first, whether “the State consider[ed] citizens’
protected

First

Amendment

conduct

in

deciding

where

to

draw

district lines, and did . . . so with an intent to dilute the
votes of those citizens by reason of their protected conduct”;
second,

whether

dilute[d]

the

“the

votes

redistricting

of

the

citizens

map,
whose

in

actual

fact,

constitutionally-

protected conduct was taken into account to such a degree that
it imposed a concrete adverse impact”; and third, whether the
map was “necessary as drawn to achieve some compelling state
interest.”

When assessed against this framework, they maintain

that

complaint

their

states

a

justiciable

claim

upon

which

relief can be granted.
II
The U.S. Constitution gives both the States and Congress a
role in setting the procedural rules by which citizens select
the

members

of

the

House

of

Representatives.

Specifically,

Article I provides that “[t]he House of Representatives shall be
composed of Members chosen every second Year by the People of
the several States,” U.S. Const. art. I, § 2, cl. 1, and further
that “[t]he Times, Places and Manner of holding Elections for
. . . Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law

14

make or alter such Regulations,” id. § 4, cl. 1.

Article I thus

“leaves with the States primary responsibility for apportionment
of

their

federal

congressional

.

.

.

districts,”

Growe

v.

Emison, 507 U.S. 25, 34 (1993), while also granting Congress the
power to override the decisions made by the States.

Congress

currently uses this power only to require that States establish
single-member districts.

See

2 U.S.C. § 2c (“In each State

entitled . . . to more than one Representative . . . , there
shall be established by law a number of districts equal to the
number of Representatives to which such State is so entitled,
and

Representatives

established,

no

shall

be

elected

district

to

only

elect

from

districts

so

more

than

one

Representative”).
The process of establishing and revising district lines is
a “highly political task.”

Growe, 507 U.S. at 33.

Indeed,

“[t]he very essence of districting is to produce a different
. . . result than would be reached with elections at large, in
which

the

seats.”

winning

party

would

take

100%

of

the

legislative

Gaffney v. Cummings, 412 U.S. 735, 753 (1973).

Because

the supporters of our country’s two major political parties are
not

evenly

distributed

within

any

State,

“[i]t

is

not

only

obvious, but absolutely unavoidable, that the location and shape
of districts may well determine the political complexion of the
area.”

Id.

And

those

State

15

officials

charged

with

redistricting

will

of

course

“recognize

the

political

consequences of drawing a district line along one street rather
than another.”

Id.

The practical “reality is that districting

inevitably has and is intended to have substantial political
consequences.”

Id.; see also Vieth, 541 U.S. at 285 (plurality

opinion) (“The Constitution clearly contemplates districting by
political entities, see Article I, § 4, and unsurprisingly that
turns out to be root-and-branch a matter of politics”).
Because
process

redistricting

that

the

is

quintessentially

Constitution

assigns

to

the

a

political
States

and

Congress, federal courts’ supervision is largely limited.

See

Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421, 1427
(2012)

(recognizing

question

.

.

.

that
where

“a

controversy

there

is

a

involves

textually

a

political

demonstrable

constitutional commitment of the issue to a coordinate political
department; or a lack of judicially discoverable and manageable
standards for resolving it” and that, “[i]n such a case, . . . a
court

lacks

the

authority

to

decide

the

dispute

(internal quotation marks and citations omitted)).

before

it”

For example,

because “[p]olitics and political considerations are inseparable
from districting and apportionment,” a court cannot invalidate a
map merely because its drafters took political considerations
into account in some manner.

See Gaffney, 412 U.S. at 753.

Indeed, such an approach “would commit federal and state courts

16

to

unprecedented

process.”

intervention

in

the

American

political

Vieth, 541 U.S. at 306 (Kennedy, J., concurring in

the judgment).
Moreover, citizens have no constitutional right to reside
in a district in which a majority of the population shares their
political

views

candidate.

and

is

likely

to

elect

their

preferred

Nor do political groups have any right to a district

map under which their candidates are likely to win seats in
proportion to the party’s overall level of support in the State.
See

Davis

v.

Bandemer,

478

U.S.

109,

130

(1986)

(plurality

opinion) (“Our cases . . . clearly foreclose any claim that the
Constitution

requires

proportional

representation

or

that

legislatures in reapportioning must draw district lines to come
as

near

as

possible

to

allocating

seats

to

the

contending

parties in proportion to what their anticipated statewide vote
will be”); see also Vieth, 541 U.S. at 288 (plurality opinion)
(“[The Constitution] guarantees equal protection of the law to
persons, not equal representation in government to equivalently
sized groups”).
But

even

though

the

districting

process

is

largely

political in nature, State officials are nonetheless limited by
specific provisions of the U.S. Constitution.

Cf.

Rutan v.

Republican Party of Ill., 497 U.S. 62, 64 (1990) (“To the victor
belong only those spoils that may be constitutionally obtained”

17

(emphasis added)).

To be sure, for many years, the Supreme

Court “resisted any role in overseeing the process

by which

States draw legislative districts,” Evenwel, 136 S. Ct. at 1123,
wary

of

“enter[ing]

th[e]

political

thicket,”

Colegrove

Green, 328 U.S. 549, 556 (1946) (plurality opinion).

v.

But this

changed with the Supreme Court’s decision in Baker v. Carr, 369
U.S. 186 (1962), where the Court held that a claim alleging that
a state-legislative map violated the Equal Protection Clause by
establishing districts with unequal populations was justiciable.
Building
invalidated
Wesberry,
election

on
a

State’s

holding
of

Baker,

that

the

Supreme

malapportioned
Article

Representatives

I,

“‘by

subsequently

congressional

§ 2’s

the

Court

provision

People

of

the

map
for

in
the

several

States’ means that as nearly as is practicable one man’s vote in
a congressional election is to be worth as much as another’s.”
376 U.S. at 7-8.

Today, under Wesberry and its progeny, “States

must draw congressional districts with populations as close to
perfect equality as possible.”

Evenwel, 136 S. Ct. at 1124.

Similarly, the Court held in Reynolds v. Sims that “the Equal
Protection Clause requires that the seats in both houses of a
bicameral state legislature must be apportioned on a population
basis,” 377 U.S. 533, 568 (1964), although “jurisdictions are
permitted to deviate somewhat from perfect population equality
to accommodate traditional districting objectives” when drawing

18

these

districts,

Evenwel,

136

S.

Ct.

at

1124.

Together,

Wesberry and Reynolds establish the judicially enforceable rule
of “one person, one vote.”
Federal

courts

districting

are

process

also

authorized

remains

free

prohibited racial discrimination.

to

ensure

from

that

the

constitutionally

Thus, a plaintiff pursuing a

racial gerrymandering claim under the Equal Protection Clause
states a justiciable claim when he alleges that “race was the
predominant
place

a

factor

motivating

significant

number

particular district.”

the

of

legislature’s

voters

within

decision

or

to

without

a

Ala. Legislative Black Caucus v. Alabama,

135 S. Ct. 1257, 1270 (2015) (quoting Miller v. Johnson, 515
U.S.

900,

916

subordinated

(1995)).

By

traditional

showing

race-neutral

. . . to racial considerations,”

“that

the

districting

Miller,

legislature
principles

515 U.S. at 916,

a

plaintiff triggers strict scrutiny, shifting the burden to the
State

to

“demonstrate

that

its

districting

legislation

is

narrowly tailored to achieve a compelling interest,” id. at 920.
In

addition

redistricting

to

these

process,

the

constitutional
Supreme

Court

limitations
has

also

on

the

recognized

that political gerrymandering -- a term that has been defined as
“[t]he practice of dividing a geographical area into electoral
districts,

often

of

highly

irregular

shape,

to

give

one

political party an unfair advantage by diluting the opposition’s

19

voting strength,” Black’s Law Dictionary 802, 1346 (10th ed.
2014) -- may well violate the Equal Protection Clause.
Court

has

struggled

devise

gerrymandering

political

to

claims

a

standard

under

the

for

But the

adjudicating

Equal

Protection

Clause.
In Bandemer, the Court held that a claim alleging that a
State’s reapportionment of its legislative districts violated
the

Equal

Protection

Clause

by

diluting

political party’s members was justiciable.
118-27.

the

votes

of

one

478 U.S. at 113,

In reaching this conclusion, the Court emphasized that

“[t]he question here is the consistency of state action with the
Federal Constitution,” and that the plaintiffs’ claim did not
“ask the Court to enter upon policy determinations for which
judicially manageable standards are lacking,” since “[j]udicial
standards under the Equal Protection Clause are well developed
and familiar.”
226 (1962)).
bringing

a

Id. at 122 (quoting Baker v. Carr, 369 U.S. 186,
Moreover, six Justices agreed that a plaintiff

political

gerrymandering

Protection Clause must
against

an

id.

identifiable

at

161

dissenting in part).

under

the

Equal

“prove both intentional discrimination
political

discriminatory effect on that group.”
opinion);

claim

(Powell,

J.,

group

and

an

actual

Id. at 127 (plurality
concurring

in

part

and

The Bandemer majority splintered, however,

with respect to the contours of this standard.

20

Compare id. at

127-43

(plurality

opinion),

with

id.

at

161-85

(Powell,

J.,

concurring in part and dissenting in part).
The

Supreme

Court

did

not

take

up

another

political

gerrymandering case for 18 years until it decided Vieth, and
then it fractured again.
that

a

State’s

revised

In that case, the plaintiffs alleged
map

for

its

congressional

districts

“constituted a political gerrymander, in violation of Article I
and

the

Equal

Protection

(plurality opinion).

Clause.”

Vieth,

541

U.S.

at

272

All of the Justices appeared to accept

that political gerrymandering, if sufficiently extreme, would
violate the Constitution, see, e.g., id. at 292-93, but there
remained a lack of consensus as to the appropriate standard for
“determining when political gerrymandering has gone too far,”
id. at 296.

Considering and rejecting the various standards

proposed by the plaintiffs and dissenting Justices, as well as
the standards proposed by the plurality and the concurrence in
Bandemer, a four-Justice plurality in Vieth “conclude[d] that
neither Article I, § 2, nor the Equal Protection Clause, nor
. . . Article I, § 4, provides a judicially enforceable limit on
the political considerations that the States and Congress may
take into account when districting,” and therefore would have
overruled

Bandemer’s

holding

as

political gerrymandering claims.
fifth

vote

for

affirming

the

21

to

the

justiciability

Id. at 305.
dismissal

of

of

Providing the
the

plaintiffs’

claims, Justice Kennedy concurred in the judgment on the ground
that, “in the case before us, we have no standard by which to
measure the burden [that the plaintiffs] claim has been imposed
on their representational rights.”

Id. at 313 (Kennedy, J.,

concurring

in

he

dissenters

refused

political

the

judgment).
to

But

join

gerrymandering

the

claims

and

the

under

the

four

conclusion

plurality’s

Court’s

that

Equal

Protection

Clause and Article I are necessarily nonjusticiable, declining
to “foreclose all possibility of judicial relief if some limited
and

precise

rationale

were

found

to

correct

an

established

violation of the Constitution in some redistricting cases.”

Id.

at 306.
Justice Kennedy nonetheless agreed that the plurality had
“demonstrate[d] the shortcomings of the . . . standards that
[had]

been

(Kennedy,

considered
J.,

to

concurring

date.”
in

the

Vieth,

541

judgment).

U.S.

at

There

308
were,

accordingly, five votes in Vieth for rejecting six distinct,
albeit related, standards:
First, the test proposed by the Bandemer plurality,
which required a showing of an intent to discriminate
plus proof that a political group had been “denied its
chance
to
effectively
influence
the
political
process,” Bandemer, 478 U.S. at 132-33 (plurality
opinion);
Second, the standard proposed by Justice Powell’s
concurrence in Bandemer, which “focuse[d] on whether
the boundaries of the voting districts have been
distorted deliberately and arbitrarily to achieve

22

illegitimate ends,” as “determined by reference to
. . . criteria that have independent relevance to the
fairness of redistricting,” id. at 165 (Powell, J.,
concurring in part and dissenting in part);
Third, the standard proposed by the Vieth plaintiffs,
which would have required proof that “the mapmakers
acted with a predominant intent to achieve partisan
advantage,” as well as proof that the effect of the
map was to “systematically ‘pack’ and ‘crack’ the
rival party’s voters” in such a way as to “thwart the
plaintiffs’ ability to translate a majority of votes
into a majority of seats,” Vieth, 541 U.S. at 284,
286-87 (plurality opinion) (emphasis omitted);
Fourth, Justice Stevens’ proposal in his Vieth dissent
to “apply the standard set forth in [the Court’s
racial gerrymandering cases] and ask whether the
legislature
allowed
partisan
considerations
to
dominate and control the lines drawn, forsaking all
neutral
principles,”
id.
at
339
(Stevens,
J.,
dissenting);
Fifth, a five-element prima facie test proposed by
Justice Souter’s
Vieth
dissent through which a
plaintiff would show “that his State intentionally
acted to dilute his vote, having ignored reasonable
alternatives consistent with traditional districting
principles” before “shift[ing] the burden to the
defendants to justify their decision by reference to
objectives other than naked partisan advantage,” id.
at 351 (Souter, J., dissenting); and
Sixth, the standard proposed by Justice Breyer’s Vieth
dissent,
which
focused
on
whether
“partisan
manipulation” of district boundaries had been used “to
entrench a minority in power,” id. at 360 (Breyer, J.,
dissenting).
The primary focus of all of these rejected standards, however,
was

determining

when

districting is so

the

unfair

use

of

political

as to violate

Clause.

23

considerations

in

the Equal Protection

The Court addressed political gerrymandering once more in
LULAC, but again failed to agree on the standard that should
apply.

The

Court

there

declined

to

revisit

Bandemer’s

justiciability holding, but five Justices, although unable to
join a single opinion, agreed that the plaintiffs’ theory -which focused on the mid-decennial nature of the redistricting
at issue -- failed to “offer the Court a manageable, reliable
measure

of

fairness

for

determining

gerrymander violates the Constitution.”

whether

a

partisan

LULAC, 548 U.S. at 414;

id. at 492-93 (Roberts, C.J., concurring in part, concurring in
the judgment in part, and dissenting in part); id. at 511-12
(Scalia, J., concurring in the judgment in part and dissenting
in part).
Taken together, the combined effect of Bandemer, Vieth, and
LULAC is that, while political gerrymandering claims premised on
the Equal Protection Clause remain justiciable in theory, it is
presently unclear whether an adequate standard to assess such
claims will emerge.
But the inability of the Supreme Court thus far to agree on
a

standard

for

adjudicating

political

gerrymandering

claims

brought under the Equal Protection Clause does not necessarily
doom a claim that the State’s abuse of political considerations
in districting has violated any other constitutional provision.
See

Vieth,

541

U.S.

at

294

24

(plurality

opinion)

(“It

is

elementary that scrutiny levels are claim specific.

An action

that triggers a heightened level of scrutiny for one claim may
receive a very different level of scrutiny for a different claim
because the underlying rights, and consequently constitutional
harms, are not comparable”).

Indeed, in this very case, the

Supreme Court recognized that the plaintiffs’ legal theory -which is premised on the First Amendment rather than the Equal
Protection Clause -- was “uncontradicted by the majority in any
of [its] cases.”

Shapiro, 136 S. Ct. at 456.

We therefore turn

to the limitations that the First Amendment may impose on a
State’s redistricting.
III
Like the Equal Protection Clause, the First Amendment also
operates to limit the conduct of state actors.

See Murdock v.

Pennsylvania, 319 U.S. 105, 108 (1943) (recognizing that the
Fourteenth Amendment makes the First Amendment “applicable to
the states”).

“[P]olitical belief and association constitute

the core of those activities protected by the First Amendment.”
Elrod v. Burns, 427 U.S. 347, 356 (1976) (plurality opinion).
Similarly, “[t]he right to vote freely for the candidate of
one’s

choice

is

of

the

essence

Reynolds, 377 U.S. at 555.

25

of

a

democratic

society.”

In addition to these forms of direct expression, moreover,
the

First

Amendment

constitutional

also

guarantees

works

to

in

protect

tandem

with

representational

other
rights.

Indeed, “[t]he right of qualified voters, regardless of their
political persuasion, to cast their votes effectively . . .
rank[s]

among

our

most

precious

freedoms.”

Anderson

v.

Celebrezze, 460 U.S. 780, 787 (1983) (emphasis added) (quoting
Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)).

Expounding on

the significance of this “representational right,” the Supreme
Court has explained:
[R]epresentative
government
is
in
essence
selfgovernment
through
the
medium
of
elected
representatives of the people, and each and every
citizen has an inalienable right to full and effective
participation in th[is] political process[] . . . .
Most citizens can achieve this participation only as
qualified voters through the election of legislators
to represent them.
Full and effective participation
by all citizens . . . requires, therefore, that each
citizen have an equally effective voice in the
election of [a representative].
Reynolds, 377 U.S. at 565 (emphasis added).
Court

in

Wesberry

Constitution

recognized

requires

“that

that

as

Article

nearly

as

Similarly,
I,

is

§

2,

the

of

the

practicable

one

man’s vote in a congressional election is to be worth as much as
another’s.”
Thus,

376 U.S. at 7-8.
at

the

most

basic

level,

when

a

State

draws

the

boundaries of its electoral districts so as to dilute the votes
of certain of its citizens, the practice imposes a burden on

26

those citizens’ right to “have an equally effective voice in the
election” of a legislator to represent them.
at 565.

Reynolds, 377 U.S.

In particular, the requirement of Article I, § 2, that

one person’s vote in a congressional election “is to be worth as
much

as

another’s,”

Wesberry,

376

U.S.

at

7,

provides

the

premise for recognizing vote “dilution” as a burden on citizens’
representational rights, since dilution compromises the equal
value requirement.

The Supreme Court has already recognized

this basic principle in the context of districts of unequal
population.

See, e.g., Bd. of Estimate of City of New York v.

Morris, 489 U.S. 688, 693-94 (1989) (“If districts of widely
unequal population elect an equal number of representatives, the
voting power of each citizen in the larger constituencies is
debased and the citizens in those districts have a smaller share
of

representation

than

do

those

in

the

smaller

districts”).

Thus, while a State can dilute the value of a citizen’s vote by
placing

him

in

an

overpopulated

district,

a

State

can

also

dilute the value of his vote by placing him in a particular
district because he will be outnumbered there by those who have
affiliated with a rival political party.

In each case, the

weight of the viewpoint communicated by his vote is “debased.”
Morris, 489 U.S. at 693-94.
system,

“voters

can

assert

And, because, in our political
their

preferences

only

through

candidates or parties or both,” Anderson, 460 U.S. at 787, the

27

devaluation

of

representational

a

citizen’s
right

vote

protected

by
by

dilution
the

implicates

First

the

Amendment

and

Article I, § 2.
The practice of purposefully diluting the weight of certain
citizens’ votes to make it more difficult for them to achieve
electoral

success

because

of

the

political

views

they

have

expressed through their voting histories and party affiliations
thus infringes this representational right.
at

314-15

(Kennedy,

J.,

concurring

in

See Vieth, 541 U.S.
the

judgment).

It

penalizes voters for expressing certain preferences, while, at
the

same

time,

rewarding

other

voters

for

expressing

the

opposite preferences.

In this way, the practice implicates the

First

well-established

Amendment’s

prohibition

against

retaliation, which prevents the State from indirectly impinging
on the direct rights of speech and association by retaliating
against citizens for their exercise.

See Hartman v. Moore, 547

U.S. 250, 256 (2006) (“Official reprisal for protected speech
‘offends

the

Constitution

[because]

it

threatens

to

inhibit

exercise of the protected right,’ and the law is settled that as
a

general

matter

the

First

Amendment

prohibits

government

officials from subjecting an individual to retaliatory actions
. . . for speaking out” (quoting Crawford-El v. Britton, 523
U.S. 574, 588 n.10 (1998))); see also Rutan, 497 U.S. at 77-78
(“What

the

First

Amendment

precludes

28

the

government

from

commanding

directly,

it

also

accomplishing indirectly”).

precludes

the

government

from

Thus, under the First Amendment’s

retaliation prohibition, the government may neither penalize a
citizen

nor

deprive

him

of

a

benefit

because

constitutionally protected speech and conduct.

of

his

See Rutan, 497

U.S. at 74-76; Perry v. Sindermann, 408 U.S. 593, 597 (1972).
Accordingly,

the

well-established

standards

for

evaluating

ordinary First Amendment retaliation claims can also be used for
evaluating claims arising in the redistricting context.
A
under

plaintiff
the

First

bringing

a

Amendment

garden
must

variety

prove

retaliation

that

the

claim

responsible

official or officials were motivated by a desire to retaliate
against him because of his speech or other conduct protected by
the First Amendment and that their retaliatory animus caused the
plaintiff’s injury.

See Hartman, 547 U.S. at 260 (recognizing

that “any . . . plaintiff charging official retaliatory action
. . . must prove the elements of retaliatory animus as the cause
of injury”).
With respect to the causation element, a retaliation claim
requires proof of “but-for causation” or a showing that “the
adverse action would not have been taken” but for the officials’
retaliatory motive.

Hartman, 547 U.S. 260.

be

act

dishonorable

to

with

an

For while “[i]t may

unconstitutional

motive

and

perhaps in some instances be unlawful, . . . action colored by

29

some degree of bad motive does not amount to a constitutional
tort if that action would have been taken anyway.”

Id.; see

also id. at 256 (“Some official actions adverse to . . . a
speaker might well be unexceptional if taken on other grounds,
but

when

nonretaliatory

grounds

are

in

fact

insufficient

to

provoke the adverse consequences, we have held that retaliation
is . . . the but-for cause of official action offending the
Constitution”).
As for the injury element, the plaintiff must prove that
government officials “took some action that adversely affected
her First Amendment rights.”

Constantine v. Rectors & Visitors

of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005).

The

nature of the harm necessary to support a retaliation claim
varies depending on the surrounding factual circumstances.

See

Thaddeus-X v. Blatter, 175 F.3d 378, 397 (6th Cir. 1999) (“[T]he
definition of adverse action is not static across contexts”).
It is clear, however, that “the retaliatory acts committed by a
[government official must] be more than de minimis or trivial,”
Suarez

Corp.

Indus.

v.

McGraw,

202

F.3d

676,

686

(4th

Cir.

2000), and that “[h]urt feelings or a bruised ego are not by
themselves the stuff of constitutional tort,” Zherka v. Amicone,
634 F.3d 642, 645-46 (2d Cir. 2011).

Rather, some “concrete

harm [must be] alleged and specified,” id. at 646, and that harm
must

be

sufficiently

serious

that

30

it

“would

likely

deter

a

person of ordinary firmness from the exercise of First Amendment
rights,” Constantine, 411 F.3d at 500 (internal quotation marks
and citation omitted).
Because there is no redistricting exception to this wellestablished

First

Amendment

jurisprudence,

the

fundamental

principle that the government may not penalize citizens because
of how they have exercised their First Amendment rights thus
provides a well-understood structure for claims challenging the
constitutionality of a State’s redistricting legislation -- a
discernable and manageable standard.
When

applying

First

Amendment

jurisprudence

to

redistricting, we conclude that, to state a claim, the plaintiff
must allege that those responsible for the map redrew the lines
of his district with the specific intent to impose a burden on
him and similarly situated citizens because of how they voted or
the political party with which they were affiliated.

In the

context of redistricting, this burden is the injury that usually
takes the form of vote dilution.

But vote dilution is a matter

of degree, and a de minimis amount of vote dilution, even if
intentionally imposed, may not result in a sufficiently adverse
effect on the exercise of First Amendment rights to constitute a
cognizable injury.

Instead, to establish the injury element of

a retaliation claim, the plaintiff must show that the challenged
map diluted the votes of the targeted citizens to such a degree

31

that it resulted in a tangible and concrete adverse effect.
other

words,

difference.

the

vote

dilution

must

make

some

In

practical

Finally, the plaintiff must allege causation --

that, absent the mapmakers’ intent to burden a particular group
of voters by reason of their views, the concrete adverse impact
would not have occurred.
When a plaintiff adequately alleges the three elements of
intent, injury, and causation, as described above, he states a
plausible

claim

that

a

redistricting

Amendment and Article I, § 2.
First

Amendment

liability

by

that

violates

the

First

Of course, as consistent with

jurisprudence,

showing

map

its

the

State

can

redistricting

still

avoid

legislation

was

narrowly tailored to achieve a compelling government interest.
See Elrod, 427 U.S. at 362 (“It is firmly established that a
significant impairment of First Amendment rights must survive
exacting scrutiny”).
This standard contains several important limitations that
help ensure that courts will not needlessly intervene in what is
quintessentially

a

political

process.

First,

it

does

not

prohibit a legislature from taking any political consideration
into

account

in

reshaping

its

electoral

districts.

A

legislature and its mapmakers may, for example, still use data
reflecting
districting

prior

voting

considerations,

patterns

to

including

32

advance
the

legitimate

maintenance

of

“communities
omitted),

of

and

interest,”
even

the

LULAC,

548

“protection

U.S.
of

at

433

(citation

incumbents

of

parties,” Vieth, 541 U.S. at 284 (plurality opinion).

all

Rather,

what implicates the First Amendment’s prohibition on retaliation
is not the use of data reflecting citizens’ voting history and
party affiliation, but the use of such data for the purpose of
making it harder for a particular group of voters to achieve
electoral

success

expressed.

because

of

the

views

they

had

previously

See Vieth, 541 U.S. at 315 (Kennedy, J., concurring

in the judgment) (“[T]he First Amendment analysis . . . is not
whether

political

classifications

were

used.

The

inquiry

instead is whether political classifications were used to burden
a group’s representational rights”).
Second,
prove

a

that,

legislature

plaintiff
in

and

must

rely

redrawing
its

a

mapmakers

on

objective

district’s
were

evidence

boundaries,

motivated

by

a

to
the

specific

intent to burden the supporters of a particular political party.
It stands to reason “that whenever a legislature redistricts,
those

responsible

political

for

composition

the
of

legislation

the

new

will

districts

know
and

the
will

likely
have

a

prediction as to whether a particular district is a safe one for
a

Democratic

or

Republican

candidate

or

district that either candidate might win.”
at

128

(plurality

opinion).

But

33

merely

is

a

competitive

Bandemer, 487 U.S.
proving

that

the

legislature was aware of the likely political impact of its plan
and nonetheless adopted it is not sufficient to prove that the
legislature was motivated by the type of intent necessary to
sustain

a

plaintiff

First
must

Amendment

produce

retaliation

objective

claim.

evidence,

Rather,

either

direct

the
or

circumstantial, that the legislature specifically intended to
burden the representational rights of certain citizens because
of how they had voted in the past and the political party with
which they had affiliated.
Third, the standard requires proof that the vote dilution
brought about by the redistricting legislation was sufficiently
serious to produce a demonstrable and concrete adverse effect on
a group of voters’ right to have “an equally effective voice in
the election” of a representative.

Reynolds, 377 U.S. at 565.

Not only is this requirement of a palpable and concrete harm
indicated by First Amendment retaliation jurisprudence, but it
also

makes

common

sense.

Legislators

draw

political

gerrymanders for practical reasons, and it is fitting to measure
the effect of the apportionment not by whether it crosses some
arbitrary statistical threshold or offends some vague notion of
fairness, but by its real-world consequences -- including, most
notably, whether the State’s intentional dilution of the weight
of certain citizens’ vote by reason of their views has actually
altered the outcome of an election.

34

The

State

argues

against

the

First

Amendment

standard,

maintaining that the standard is “arbitrary in the sense that
the previous district becomes the norm or baseline against which
the fairness of the new district is to be measured” when, in
reality,

citizens’

voting

patterns

are

dynamic.

But

its

argument fails to account for the necessary elements of a First
Amendment retaliation claim.

The retaliation jurisprudence does

not, as the State implies, include a presumption of fairness of
the status quo ante.

The prior district itself may well have

been drawn for partisan reasons, and the State can redraw its
boundaries for any number of reasons.

But it cannot do so to

retaliate against one group for its past electoral success in
that district.
The

State

constitutional
competitive

also
right

for

that

argues
to

vote

that
in

a

individual’s

“no

district
preferred

where the district has been so in the past.”
true, it is also beside the point.

individual
that

is

has

a

safe

or

candidates,

While that may be

As the Supreme Court has

explained in the political patronage context,
[E]ven though a person has no ‘right’ to a valuable
governmental benefit and even though the government
may deny him the benefit for any number of reasons,
there are some reasons upon which the government may
not rely. It may not deny a benefit to a person on a
basis that infringes his constitutionally protected
interests -- especially, his interest in freedom of
speech. For if the government could deny a benefit to
a person because of his constitutionally protected

35

even

speech or associations, his exercise of those freedoms
would in effect be penalized and inhibited.
Rutan, 497 U.S. at 72 (quoting Perry, 408 U.S. at 597).

This

basic principle applies with equal force in the redistricting
context.

While citizens have no right to be assigned to a

district that is likely to elect a representative that shares
their views, the State also may not intentionally drown out the
voices of certain voters by reason of their views.
State

is

alleged

to

have

not

only

And when a

intentionally

but

also

successfully burdened “the right of qualified voters, regardless
of their political persuasion, to cast their votes effectively,”
Anderson, 460 U.S. at 787 (quoting Williams, 393 U.S. at 30), by
diluting

their

votes

in

a

manner

that

has

manifested

in

a

concrete way, the allegation supports a justiciable claim under
the First Amendment and Article I, § 2.
In

sum,

we

recognize

the

justiciability

of

a

claim

challenging redistricting under the First Amendment and Article
I,

§

2,

when

it

alleges

intent,

injury,

and

causation,

as

described herein.
IV
With

this

standard

in

hand,

we

assess

the

plaintiffs’

second amended complaint, accepting the pleaded facts as true,
to determine whether it states a plausible claim upon which
relief can be granted.

See Fed. R. Civ. P. 12(b)(6).

36

The

complaint

alleges

that,

prior

to

the

2011

redistricting, Maryland’s Sixth Congressional District had been
“represented for nearly 20 years by Republican Roscoe Bartlett,
who won reelection in 2010 by a 28-point margin.”
Compl.

¶

78.

Democratic

But,

Governor

according
and

its

to

the

Second Am.

complaint,

the

Democratic-controlled

State’s

legislature

“set out to crack the [Sixth] District . . . to prevent voters
in

that

district

from

[continuing

to]

elect[]

a

Republican

representative to Congress,” id. ¶ 38, a goal openly admitted by
members of the Advisory Committee and various legislators, see
id. ¶¶ 95-100.
support
though

of
only

The complaint alleges that, without the input or

any

of

the

“relatively

State’s

Republican

leaders,

and

even

small

adjustments

[were]

needed

to

accommodate population growth,” id. ¶ 61, the State adopted a
redistricting plan that radically redrew the Sixth District’s
lines,

“removing

over

360,000

residents

from

the

mostly-

Republican northern counties of the district and adding nearly
350,000

residents

from

predominantly

Montgomery County,” id. ¶ 81.

Democratic

and

urban

It alleges that, relying on data

reflecting citizens’ voting histories and party registrations,
“the Plan accomplished a net transfer of over 65,000 Republican
voters out of the district and over 30,000 Democratic voters
into the district,” id. ¶ 84, thereby altering the balance of
power between the two major political parties.

37

The complaint

alleges

further

that

the

mapmakers’

effort

was

successful

insofar as the Sixth District “was flipped by the Plan from
Republican
election;

to

Democratic

“[t]he

district

control”

in

remained

the

under

2012

congressional

Democratic

control

after the 2014 congressional election”; and the district “is
nearly

certain

to

remain

[under

Democratic

control]

future congressional elections under the Plan.”

in

all

Id. ¶ 4.

These factual allegations adequately state intent, injury,
and causation and therefore support a plausible claim that the
State’s redrawing of the Sixth District’s lines violated the
plaintiffs’ rights under the First Amendment and Article I, § 2.
First, the plaintiffs have alleged that they were registered
Republicans who voted for Republican candidates in the Sixth
District prior to 2011.
Maryland

legislature

Second, they have alleged that “the

expressly

and

deliberately

considered

Republican voters’ protected First Amendment conduct, including
their voting histories and political party affiliations, when it
redrew the lines of the [Sixth] Congressional District; and it
did so with an intent to disfavor and punish those voters by
reason of their constitutionally protected conduct.”
Compl. ¶ 7(a) (emphasis added).

Second Am.

Third, the plaintiffs have

alleged that, precisely as intended, the “actual effect” of the
Plan

has

[Sixth]

been

to

“burden[]

Congressional

Republican

District”

38

by

voters

in

“preventing

the
[them]

former
from

continuing to elect a Republican representative to the United
States House of Representatives, as they had in the prior ten
congressional elections.”

Id. ¶ 7(b).

And fourth and finally,

the plaintiffs have adequately alleged the causation element of
a retaliation claim:

they have alleged (1) that the State’s

redrawing

of

the

justified

by

reference

legitimate

Sixth

redistricting

District
to

“cannot

Maryland’s

criteria”

and

be

explained

geography

or

therefore

that

or

other
“the

cracking of the [Sixth] District would not have taken place
without the legislature’s [deliberate] targeting of Republican
voters on the basis of their First-Amendment-protected conduct,”
id. ¶ 120-21; and (2) that “but for the cracking of the district
under

the

District

Plan,”
would

“Republican
have

been

voters
able

to

in

the
elect

representative in 2012 and 2014,” id. ¶ 7(b).

former
a

[Sixth]

Republican

If the plaintiffs

succeed in proving these allegations, they will be entitled to
relief, unless the State can establish that the drawing of the
Sixth

District’s

lines

was

narrowly

tailored

to

advance

a

compelling government interest.
Accordingly, the State’s motion to dismiss the plaintiff’s
complaint for failure to state a justiciable claim is DENIED.

39

BREDAR, District Judge, dissenting:
I respectfully dissent:

I would grant Defendants’ motion

to dismiss (ECF No. 51).1
I begin by emphasizing what this opinion does not stand
for.

This opinion is not a defense of the State’s authority to

segregate voters by political affiliation so as to achieve pure
partisan ends:

such conduct is noxious and has no place in a

1

In 2014, I presided over this matter while sitting as a
single-judge court.
Addressing Plaintiffs’ claims as initially
framed, I found the allegations wanting under the familiar
Twombly/Iqbal standard, and—following then-controlling Fourth
Circuit precedent—I both denied Plaintiffs access to a threejudge court and dismissed the case. See Benisek v. Mack, 11 F.
Supp. 3d 526 (D. Md. 2014).
These two rulings were summarily
affirmed by the Fourth Circuit.
See Benisek v. Mack, 584 F.
App’x 140 (4th Cir. 2014) (mem.). However, the Supreme Court of
the United States later reversed the first ruling, holding that
the Fourth Circuit had set too high a bar for access to threejudge district courts under 28 U.S.C. § 2284. The Supreme Court
explained that the Fourth Circuit erred in Duckworth v. State
Administration Board of Election Laws, 332 F.3d 769, 773 (4th
Cir. 2003), in which case the Fourth Circuit had determined
that, where a redistricting complainant fails to state a claim,
by definition the complainant’s pleadings are constitutionally
insubstantial and “so properly are subject to dismissal by the
district court without convening a three-judge court.”
See
Shapiro v. McManus, 136 S. Ct. 450, 455 (2015) (“We think [the
Duckworth] standard both too demanding and inconsistent with our
precedents. ‘[C]onstitutional claims will not lightly be found
insubstantial for purposes of’ the three-judge-court statute.”
(alteration
in
original)
(citation
omitted)).
Without
“expressing any view on the merits” of Plaintiffs’ claims, id.
at 456, the Supreme Court remanded the case for proceedings
before a three-judge district court.
On remand, Plaintiffs
sought—and received—this Court’s permission to amend their
Complaint
substantially,
and
it
is
Plaintiffs’
modified
constitutional theory that now confronts the Court.

40

representative democracy.
Indep.

Redistricting

See Ariz. State Legislature v. Ariz.

Comm’n,

135

S.

Ct.

2652,

2658

(2015)

(“‘[P]artisan gerrymanders,’ this Court has recognized, ‘[are
incompatible]

with

democratic

principles.’”

(alterations

in

original) (quoting Vieth v. Jubelirer, 541 U.S. 267, 292 (2004)
(plurality

opinion))).

Nor

do

I

seek

in

this

opinion

understate the prevalence of political gerrymandering:

to

there is

no doubt in my mind that the problem is real and widespread and
that

entrenched

Democratic

and

Republican

state

legislatures

alike exercise their control over redistricting in an effort to
promote party power.

See Michael J. Kasper, The Almost Rise and

Not Quite Fall of the Political Gerrymander, 27 N. Ill. U. L.
Rev.

409,

Democratic

419-23
and

(2007)

Republican

(recounting

the

gerrymandering

history

efforts

of

in

both

Texas).

Further, this opinion should not be read as a willing abdication
of the judiciary’s constitutional obligation to resolve cases
and controversies, see U.S. Const. art. III, § 2, cl. 1, even
when those cases and controversies involve politically charged
subject matter.
particular,
resolving

I have studied Plaintiffs’ allegations and, in

their

proposed

political

First

Amendment

gerrymandering

claims.

framework
I

accept,

for
for

purposes of this discussion, that the First Amendment may, as
Justice

Kennedy

constitutional

opined
provision

in
in

Vieth,
.

41

.

be
.

the
cases

most

“relevant

that

allege

unconstitutional

partisan

gerrymandering,”

541

(Kennedy, J., concurring in the judgment).

U.S.

at

314

I also assume, as I

must on a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, that Plaintiffs’ well-pleaded
factual allegations are true:

accordingly, I take as a given

that the Maryland Governor’s Redistricting Advisory Committee
(“GRAC”)

“focused

predominantly

on

the

voting

histories

and

political-party affiliations of the citizens of the State” with
the

“clear

Republican

purpose
voters

and

and

effect

of

preventing

diluting

them

preferred representatives in Congress.”

from

the

votes

electing

of

their

(ECF No. 44 ¶ 6.)

But even accepting that the First Amendment supplies the
relevant

constitutional

principle,

and

even

assuming

that

official misconduct may be afoot on the discrete facts of this
case, I cannot responsibly endorse Plaintiffs’ proposed standard
(or

otherwise

approve

continued

litigation

in

this

matter)

unless I first conclude that the standard would be viable and
manageable throughout the life of this case and beyond the facts
of this case.

Two substantial hurdles prevent me from drawing

such a conclusion.
Supreme

Court

partisanship

in

The first hurdle relates to precedent:

has

expressed

the

some

districting

degree

context,

creates intractable line-drawing problems.
prohibiting

state

legislatures

from

42

of
but

tolerance
that

the
for

tolerance

A per se rule flatly

taking

account

of

voting

history or voter affiliation in their mapmaking would streamline
the preliminary analysis, but it is not clear that such a rule
is available in light of controlling law (or desirable in light
of competing interests and objectives).
Even were this Court to implement such a per se rule, there
remains a second, insurmountable barrier.
equipped

to

ascertain

those

unusual

Courts are simply not

circumstances

in

which

redistricting inflicts an actual, measurable burden on voters’
representational rights.
Court has required.

Yet that is precisely what the Supreme

Compare Davis v. Bandemer, 478 U.S. 109,

127 (1986) (plurality opinion) (“We . . . agree . . . that in
order to succeed the . . . plaintiffs were required to prove
both

intentional

political

group

discrimination

and

an

actual

against

an

discriminatory

identifiable

effect

on

that

group.”), and Vieth, 541 U.S. at 295 (plurality opinion) (“This
Court

may

not

willy-nilly

apply

standards—even

manageable

standards—having no relation to constitutional harms.”),

with

League of United Latin Am. Citizens [LULAC] v. Perry, 548 U.S.
399, 418 (2006) (Kennedy, J.) (“[A] successful claim attempting
to

identify

unconstitutional

acts

of

partisan

gerrymandering

must . . . show a burden, as measured by a reliable standard, on
the

complainants’

reliably

representational

distinguish

between

rights.”).

what

Plaintiffs

Courts
would

cannot
term

impermissible “vote dilution” and the ordinary consequences of

43

an American political process that is organic, fluid, and often
unpredictable.
Constitutional
particularly
democratic

adjudication

adjudication
process

and

that

in
has

the
the

delegitimize

federal
potential

courts
to

(and

disrupt

democratically

elected

officials) must not be inconsistent or ad hoc but must instead
be “principled, rational, and based upon reasoned distinctions,”
Vieth, 541 U.S. at 278 (plurality opinion).

Because Plaintiffs

have

reliably

not

those

shown

that

circumstances

their
in

framework

which

voters’

would

identify

representational

rights

have been impermissibly burdened, and because I have been unable
to discern an acceptable alternative framework, I conclude that
Plaintiffs’ claims are not justiciable.2
now

dismiss

Plaintiffs’

with prejudice.

controlling

Accordingly, I would

Second

Amended

Complaint

Because I conclude that Plaintiffs’ claims can

never succeed, I would spare the parties the significant expense
of discovery and end this case now.
2

Offensive as political

While the majority is quite correct in its observation,
supra at 25, that Justice Kennedy’s First Amendment theory
remains “uncontradicted by the majority in any [Supreme Court]
cases,” Shapiro, 136 S. Ct. at 456, it does not follow, as the
majority suggests, that Plaintiffs’ Second Amended Complaint
“adequately employs First Amendment jurisprudence to state a
plausible claim for relief.”
As will be seen, Plaintiffs have
failed to state a claim because they, like so many complainants
in redistricting cases, have failed to proffer either a reliable
standard for measuring the burden of political gerrymandering or
allegations on which the Court could construct such a standard.

44

gerrymandering may be, there is nothing to be gained (and much
to be lost) in postponing the inevitable.
I.

Partisanship and Precedent
Before

rectifying

a
a

court
harm,

can

it

trying to rectify.

must

craft

a

grasp

principled

precisely

standard

what

harm

it

for
is

Political gerrymandering claims have left

courts in a quagmire because, on the one hand, courts recognize
that districting is among the most inherently political ventures
that state legislatures (and their agents) undertake; on the
other hand, it goes without saying that the party in power has
every

incentive

to

entrenches its power.

design

and

implement

a

map

that

further

I am persuaded that if courts are to have

any role in policing this process (an open question as far as I,
and, it would seem, a majority of the Justices of the Supreme
Court

are

concerned3),

courts

3

must

depart

from

ambiguous

There is much discussion in the case law and the scholarly
literature about the meaning of Vieth, and in particular the
meaning of Justice Kennedy’s controlling opinion. While Justice
Kennedy apparently remains open to the possibility that
political gerrymandering claims may be justiciable, he did not
opine that they necessarily are justiciable.
On the contrary,
he acknowledged that there are “weighty arguments for holding
cases like these to be nonjusticiable” and that “those arguments
may prevail in the long run.”
541 U.S. 267, 309 (2004)
(Kennedy, J., concurring in the judgment) (emphasis added).
Justice Kennedy further opined that the “failings of the many
proposed standards for measuring the burden a gerrymander
imposes on representational rights make [judicial] intervention
improper,” though he suggested that if “workable standards do
emerge to measure these burdens,” courts should stand ready to

45

precedent and hold, as a first principle, that any manipulation
on

the

basis

of

protected

presumptively impermissible.

First

Amendment

conduct

is

Under such a regime, if mapmakers

were to take account of protected conduct in their districting,
and if voters could thereafter point to actual, measurable harms
flowing

from

such

districting,

the

resulting

maps

would

be

invalid (or subject to the rigors of strict scrutiny that is,
more often than not, fatal in fact).
To be clear, I am not proposing that courts should adopt
such a per se rule:
indeed

a

viewpoint
Amended

rule

there are competing interests at stake, and

that

would

discrimination

Complaint

might

preclude

Plaintiffs
very

in

a

Diana

malapportionment
Gribbon

political

or

Motz

of

and

quasi-political

sweep

up

in

of

nefarious

their

neutral

Second
or

even

In a recent dissenting opinion

racial

the

kind

describe

well

useful political considerations.

the

gerrymandering

Fourth

Circuit

districting

case,

Judge

described

those

criteria

that

the

order relief. Id. at 317. The most that should be said, then,
about Justice Kennedy’s take on the justiciability of political
gerrymandering claims, is that he has not absolutely ruled it
out. Perhaps equally plausible is Justice Scalia’s read of the
Kennedy opinion, i.e., that lower courts should treat the
opinion as a “reluctant fifth vote against justiciability,” a
vote that “may change in some future case but that holds, for
the time being, that this matter is nonjusticiable,” id. at 305
(plurality opinion).

46

Supreme Court has deemed legitimate, which include maintaining
the

competitive

contests

balance

between

among

incumbents,

political

provided

parties;

that

avoiding

incumbents

of

one

party are not treated more favorably than those of another; and
preserving communities of interest.
Ass’n

v.

Wake

Cty.

Bd.

of

See Raleigh Wake Citizens

Elections,

No.

16-1270,

2016

WL

3568147, at *16 (4th Cir. July 1, 2016) (Motz, J., dissenting).
For present purposes, I am simply asserting that if courts
are

going

to

adjudicate

or

attempt

to

adjudicate

political

gerrymandering claims, they must begin with the proposition that
mapmakers

may

not

take

account

of

conduct when drawing district lines.

First

Amendment–protected

The problem, of course, is

that I am not writing on a blank slate:

even those Justices of

the

optimistic

Supreme

Court

justiciability

of

who

have

remained

political

gerrymandering

about

claims

the
have

nevertheless acknowledged the partisan realities of districting.
Vieth

is

illustrative:

while

the

decision

was

highly

fragmented, each opinion can be read to include some recognition
that partisanship in districting may be inevitable, if perhaps
suboptimal.
(observing

See
that

541
the

U.S.

at

285-86

“Constitution

(plurality
clearly

opinion)

contemplates

districting by political entities, and unsurprisingly that turns
out

to

be

root-and-branch

a

matter

of

politics”;

further

describing partisan motives as “ordinary and lawful” (citations

47

omitted)); id. at 307 (Kennedy, J., concurring in the judgment)
(explaining

that

classification,”

whereas

politics

race

is

is

“quite

a

an

“impermissible

different

matter,”

and

agreeing that it would be “idle . . . to contend that any
political

consideration

taken

into

account

in

fashioning

a

reapportionment plan is sufficient to invalidate it” (citation
omitted)); id. at 336 (Stevens, J., dissenting) (explaining that
“[j]ust as race can be a factor in, but cannot dictate the
outcome of, the districting process, so too can partisanship be
a permissible consideration in drawing district lines, so long
as

it

does

not

predominate”);

id.

at

343

(Souter,

J.,

dissenting) (acknowledging that “some intent to gain political
advantage

is

inescapable

whenever

political

bodies

devise

a

district plan, and some effect results from the intent”); id. at
355 (Breyer, J., dissenting) (opining that “pure politics often
helps

to

secure

objectives”).

The

constitutionally
Court

has

important

echoed

this

democratic

tolerance

for

partisanship in other cases and in related contexts, such as in
its

racial

gerrymandering

and

malapportionment

jurisprudence.

See, e.g., Miller v. Johnson, 515 U.S. 900, 914 (1995) (“It is
true that redistricting in most cases will implicate a political
calculus in which various interests compete for recognition . . .
.”);

Shaw

v.

Reno,

509

U.S.

630,

662-63

(1993)

(White,

J.,

dissenting) (“Because districting inevitably is the expression of

48

interest group politics, and because ‘the power to influence the
political

process

is

not

limited

to

winning

elections,’

the

question in gerrymandering cases is ‘whether a particular group
has

been

unconstitutionally

denied

its

chance

to

effectively

influence the political process.’” (citations omitted)); Gaffney
v. Cummings, 412 U.S. 735, 753 (1973) (“Politics and political
considerations are inseparable from districting and apportionment.
. . . The reality is that districting inevitably has and is
intended to have substantial political consequences.”); cf. Harris
v. Ariz. Indep. Redistricting Comm’n, 136 S. Ct. 1301, 1310 (2016)
(assuming

but

nevertheless

reserving

the

question

whether

partisanship is an “illegitimate redistricting factor”).
In light of this authority, lower courts may be precluded
from implementing a per se bar on partisan considerations in
districting.

That said, the Supreme Court may have been more

willing to tolerate partisanship in weighing the merits of equal
protection claims because, as Justice Kennedy observed, “[n]o
substantive

definition

of

fairness

in

districting

seems

to

command general assent,” Vieth, 541 U.S. at 307 (Kennedy, J.,
concurring in the judgment).

The Court has never held that

discernible

are

political

groups

entitled

representation under the Fourteenth Amendment.

to

proportional

Conversely, the

First Amendment right is a sacrosanct individual right, and the
Court has recognized that targeting on the basis of political

49

viewpoint

or

affiliation

outside

the

redistricting

presumptively violates the First Amendment.
(plurality

opinion)

(“[A]

First

Amendment

context

See id.
claim,

if

at 294
it

were

sustained, would render unlawful all consideration of political
affiliation

in

districting,

just

as

it

renders

unlawful

all

consideration of political affiliation in hiring for non-policylevel government jobs.” (citing Elrod v. Burns, 427 U.S. 347
(1976))).

To

date,

the

First

Amendment

framework

in

the

redistricting context is nothing more (or less) than a “legal
theory

put

forward

by

a

Justice

of

th[e]

Court

and

uncontradicted by the majority in any . . . cases,” Shapiro v.
McManus,

136

majority

of

S.

Ct.

Justices

450,

456

(2015).

squarely

Unless

confront

the

and

until

propriety

a
of

partisanship in reviewing a redistricting claim brought on First
Amendment

grounds,

it

may

be

possible

for

lower

implement a per se rule in this narrow context.

courts

to

Cf. Vieth, 541

U.S. at 294 (plurality opinion) (“It is elementary that scrutiny
levels are claim specific.

An action that triggers a heightened

level of scrutiny for one claim may receive a very different
level of scrutiny for a different claim because the underlying
rights,

and

comparable.

consequently

constitutional

harms,

are

not

To say that suppression of political speech . . .

triggers strict scrutiny is not to say that failure to give

50

political

groups

equal

representation

.

.

.

triggers

strict

scrutiny.”).
This discussion is not strictly academic.

To accept that

political manipulation is part and parcel of redistricting is to
create

an

insuperable

line-drawing

problem:

politicking is too much, and how do we know?

how

much

From Bandemer to

the present day, the Supreme Court has been unable to answer
that question with anything resembling the degree of clarity
lower courts require in order to fairly adjudicate political
gerrymandering claims.
that

state

affiliation
hiring,

But if courts were to accept the premise

authorities
for

firing,

may

mapmaking
and

no

more

than

they

contracting

use
may

decisions,

voter
use

history

such

then

and

data

courts

for

would

have, if nothing else, at least a plausible foundation on which
to attempt to construct a standard.
Ultimately, I need not resolve this matter.

Even were the

Court to adopt a per se rule forbidding partisan manipulation in
districting, I would nevertheless conclude that it is infeasible
to ascertain the point at which voter manipulation produces a
cognizable injury the likes of which courts are equipped to
redress.

If there is no provable burden, then there can be no

judicial relief.

See id. at 292 (“The issue . . . is not

whether severe partisan gerrymanders violate the Constitution,

51

but whether it is for the courts to say when a violation has
occurred, and to design a remedy.”).
II.

Burden
Defendants in this case devoted much of their briefing—and

a substantial portion of their oral argument—to pressing their
contention that nothing about the GRAC’s 2011 map chills voters’
First Amendment rights:

voters remain free to affiliate with

the party of their choice, to vote, to run for office if they
wish, and to participate in vibrant political debate wherever
they find themselves.

Candidly, I made a similar observation in

dismissing Plaintiffs’ original Complaint, see Benisek v. Mack,
11 F. Supp. 3d 516, 526 (D. Md. 2014), aff’d, 584 F. App’x 140
(4th

Cir.

2014)

(per

Shapiro, 136 S. Ct. 450.

curiam),

rev’d

and

remanded

sub

nom.

Since that time, Plaintiffs’ theory of

the case has evolved, and they now contend that the burden they
(along with other Maryland voters) have suffered is not a direct
restraint on their political activity but rather an indirect
sanction

for

engaging

in

First

Amendment–protected

conduct.

According to Plaintiffs, by consulting data on voting history
and party affiliation and by strategically deploying that data
in its mapmaking, the GRAC “diluted the votes of the minority
party significantly enough that the dilution has inflicted a
palpable and concrete adverse effect” (ECF No. 85 at 3) through
the cracking of the 6th Congressional District.

52

For purposes of this discussion, I accept that the burden
Plaintiffs allege they have suffered is an indirect burden and
that, accordingly, much of Defendants’ argument misses the mark.
Likewise,

much

district

courts

resolving

of

have

political

relevant to

the

discussion
applied

in

First

gerrymandering

prior

cases

Amendment

claims

the Court’s analysis here:

is

in

which

principles
only

in

marginally

while plaintiffs in

those prior cases have occasionally pleaded an indirect burden,
presiding courts have generally focused on the absence of a
direct

restraint.

But

see

Radogno

v.

Ill.

State

Bd.

of

Elections, No. 1:11-cv-04884, 2011 WL 5025251, at *7 (N.D. Ill.
Oct. 21, 2011) (“It may very well be that Plaintiffs’ ability to
successfully elect their preferred candidate is burdened by the
redistricting plan, but that has nothing to do with their First
Amendment rights.”); Kidd v. Cox, No. 1:06-CV-0997-BBM, 2006 WL
1341302, at *19 (N.D. Ga. May 16, 2006) (“What Plaintiffs demand
is the right to have their views represented in state government
by the representative of their choice.

We decline to recognize

such a right under the First Amendment.”).
Nevertheless,

even

assuming

that

vote

dilution

(as

Plaintiffs conceive of it) may amount to a constitutional harm,4

4

This, however, remains an open question:
while
malapportionment plainly harms the rights of those particular
voters who are packed into overcrowded districts and whose votes

53

I conclude that it is not a harm courts are currently equipped
to

redress:

I

can

ascertain

no

reliable,

administrable

standard, and Plaintiffs have proposed none, for distinguishing
electoral

outcomes

achieved

through

political

gerrymandering

from electoral outcomes determined by the natural ebb and flow
of politics.

Short of exposing voters and their private voting

decisions

involuntary

to

interrogative

discovery—an

obviously

are thereby literally diluted, it is less obvious that voters
suffer individual harm simply because they are redistricted in
such a way that their party of choice is less likely to prevail
in congressional elections. Indeed, as Plaintiffs here seem to
recognize, and as the majority acknowledges, supra at 17,
“citizens have no constitutional right to reside in a district
in which a majority of the population shares their political
views and is likely to elect their preferred candidate.”
See
also Badham v. March Fong Eu, 694 F. Supp. 664, 675 (N.D. Cal.
1988) (“The First Amendment guarantees the right to participate
in the political process; it does not guarantee political
success.”), aff’d mem., 488 U.S. 1024 (1989). For this reason,
I would hesitate to draw a parallel to the one-person-one-vote
line of cases, as the majority has done.
Even if vote dilution, as described by Plaintiffs, does
amount to a constitutional harm, I greatly doubt that such a
harm is of the same order as the harm citizens suffer in the
context of political patronage, the doctrinal comparator on
which Plaintiffs largely rely. See Samuel Issacharoff & Pamela
S. Karlan, Where to Draw the Line?:
Judicial Review of
Political Gerrymanders, 153 U. Pa. L. Rev. 541, 563 (2004)
(“[T]he burden that the plaintiffs in the patronage cases
experienced fell on them outside the political process:
they
lost jobs as public defenders or road workers or were denied
contracts to haul trash or tow cars. . . . By contrast, in a
political
gerrymandering
case,
the
question
whether
‘an
apportionment has the purpose and effect of burdening a group of
voters’ representational rights’ requires deciding what voters’
‘representational rights’ are.” (footnote omitted)).

54

impractical

and

simply

feasible

not

fundamentally
to

undemocratic

reverse-engineer

undertaking—it

elections

so

as

is
to

determine whether the State’s dilutive efforts imposed a “real
and

concrete

adverse

impact

on

supporters

of

the

disfavored

political party” (ECF No. 68 at 8).
The problem lies in the nature of political affiliation
itself.

Unlike race, one’s status as a Republican or a Democrat

is not, as Justice Scalia put it, an “immutable characteristic,
but may shift from one election to the next; and even within a
given election, not all voters follow the party line.”
541 U.S. at 287 (plurality opinion).

Vieth,

Justice O’Connor made a

similar point in Bandemer, writing that “while membership in a
racial

group

is

an

immutable

characteristic,

voters

can—and

often do—move from one party to the other or support candidates
from both parties.

Consequently, the difficulty of measuring

voting strength is heightened in the case of a major political
party.”

478

U.S.

at

156

(O’Connor,
6th

J.,

concurring

Congressional

in

the

District

is

judgment).

Maryland’s

illustrative:

while in 2012 the Democratic challenger, John

Delaney, defeated Roscoe Bartlett, the incumbent Republican, by
an almost twenty-one percent margin of victory, just two years
later Delaney beat Republican challenger Dan Bongino by a mere

55

1.5%.5

Thus, while the majority sensibly contends that the State

may not “intentionally drown out the voices of certain voters by
reason

of

their

Plaintiffs’

theory

gerrymandering

views,”

supra

(and,

claims,

more

whether

at

36,

broadly,
brought

the
with

on

problem
all

First

with

political

Amendment

or

equal protection grounds) is that courts are not equipped to
distinguish those circumstances in which the State has drowned
out

particular

voices

from

those

circumstances

in

which

the

chorus has voluntarily changed its tune.
Because

of

the

inherent

mutability

of

political

affiliation, the Court cannot simply compare the results of an
election conducted pursuant to Map X with those of a subsequent
election conducted pursuant to Map Y and blame any shift in
power on redistricting:
voter

behavior

is

as

each election cycle is unique, and
unpredictable

as

the

broader

societal

circumstances that may make one candidate, or one party, more
appealing than the other to particular voters and communities.
For

that

matter,

treating

a

prior

map

as

a

baseline

for

measuring the constitutionality of a subsequent map assumes that

5

These
statistics
are
publicly
available
at
http://elections.state.md.us, and may be considered at the Rule
12(b)(6) stage.
See Hall v. Virginia, 385 F.3d 421, 424 n.3
(4th Cir. 2004) (explaining that, where voter statistics are
publicly available at state legislative website, courts may take
judicial notice of this information on motion to dismiss).

56

the prior map was itself free of impermissible manipulation—yet
we

know,

as

a

practical

matter,

that

gerrymandering

is

widespread in our political system and as old as the Republic.
See Kasper, supra, at 411; cf. LULAC, 548 U.S. at 446 (Kennedy,
J.) (“There is no reason . . . why the old district has any
special claim to fairness.”).6
Plaintiffs hasten to reassure the Court that, whatever the
boundaries or implications of their proposed standard in other,
future cases, in this case the answer could not be clearer:
through

savvy

congressional

political
district

Republican control.

engineering,
and

wrested

the
a

seat

State
from

cracked

a

long-held

I am compelled to wonder how Plaintiffs

might seek to prove that claim:

Plaintiffs, after all, are just

nine committed or occasional Republican voters residing in two

6

The majority acknowledges, supra at 35, that a prior map
“may well have been drawn for partisan reasons, and the State
can redraw its boundaries for any number of reasons” so long as
those reasons do not include partisan retaliation. But my point
here goes, once again, to the question of burden: if Map X was
badly gerrymandered to advance Republican interests, and Map Y
is thereafter designed to promote Democratic interests, I am not
certain that Republican voters who may have been indirectly
impacted by the redistricting initiative have suffered a burden
for which the Constitution affords redress. Put differently, if
political gerrymandering is as universal and longstanding a
problem as Plaintiffs and amici suggest, then it may be
unhelpful to treat any one particular map, which may have the
effect of correcting for or offsetting a prior gerrymander, as
imposing a particularized burden on a discrete partisan subset
of the voting population.

57

districts comprising many hundreds of thousands of residents.
Plaintiffs could take the stand and testify about their personal
voting histories, and they could perhaps invite their friends
and associates to do so as well.

But such testimony would shed

no meaningful light on the circumstances surrounding the 2012
and 2014 congressional elections.
already

set

registration

forth,
history,

would
or

any

Nor, for the reasons I have

statistical
other

known

sampling,
data

set

voter
provide

reliable evidence from which the Court could ascertain whether
in fact the alleged gerrymander was outcome determinative.
Even were I to presume on the unusual facts of this case—
the broken-winged pterodactyl and so forth—that the gerrymander
was outcome determinative, such a presumption would bring me no
closer to a reliable framework that I, and other judges, might
employ in future cases involving subtler partisan engineering.
At

bottom,

Plaintiffs’

purported

standard

is

a

variation

on

Justice Stewart’s much-maligned adage, “I know it when I see
it,” Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
concurring).

Ad hoc decision making and judicial stargazing

cannot take the place of “clear, manageable, and politically
neutral standards for measuring the particular burden a given
partisan classification imposes on representational rights,” as
“[a]bsent

sure

guidance,

the

results

from

one

gerrymandering

case to the next would likely be disparate and inconsistent,”

58

Vieth,

541

U.S.

at

307-08

(Kennedy,

J.,

concurring

in

the

judgment); see also id. at 291 (plurality opinion) (explaining
that a reliable criterion is “necessary to enable the state
legislatures
discretion,

to
to

discern

the

meaningfully

limits

of

constrain

the

their

districting

discretion

of

the

courts, and to win public acceptance for the courts’ intrusion
into

a

process

that

is

the

very

foundation

of

democratic

decisionmaking”).
III. Conclusion
There may yet come a day when federal courts, finally armed
with a reliable standard, are equipped to adjudicate political
gerrymandering claims.7

Or perhaps political gerrymandering (at

7

In the absence of a reliable standard, the Supreme Court
may nevertheless intervene—or, more likely, direct lower-court
intervention—should a truly exorbitant fact pattern emerge.
At
oral argument in a case heard the same day as this matter,
Parrott v. Lamone, Civ. No. GLR-15-1849, plaintiffs’ counsel
hypothesized that highly sophisticated demographic software
might make it possible for blatantly partisan redistricting
commissions to draw district lines between apartment units or
rooms in a single-family home. The hypothetical is absurd, but
the notion that sophisticated mapmakers could draw lines around
favored (and disfavored) communities or even streets is not
inconceivable. At some point, mapmaking that makes a mockery out
of representative democracy may necessitate inelegant judicial
intervention, and the Supreme Court may require lower courts to
stand guard at the outer perimeter of rationality.
See Cox v.
Larios, 542 U.S. 947, 950 (2004) (Stevens, J., concurring)
(“‘[T]he unavailability of judicially manageable standards’
cannot justify a refusal ‘to condemn even the most blatant
violations of a state legislature’s fundamental duty to govern
impartially.’” (citation omitted)).

59

least

in

extreme

cases)

will

be

corrected

by

the

voters

themselves, who after all bear the ultimate power—if they unite—
to bring about political change.

See Bandemer, 478 U.S. at 144

(Burger, C.J., concurring in the judgment) (“In my view, the
Framers of the
correction

of

Constitution . . . placed responsibility for
such

flaws

in

the

people,

relying

influence their elected representatives.”).
not

persuaded

that

solution.

And

unproven

premises

Plaintiffs

even

having

for

here

have

accepted

purposes

of

them

to

In any event, I am
discovered

several

my

on

of

analysis

a

viable

Plaintiffs’

on

this

Rule

12(b)(6) motion (i.e., that the First Amendment is the relevant
constitutional

provision,

that

vote

dilution

as

Plaintiffs

characterize it might amount to a constitutional harm, and that
the

GRAC

acted

Republican

with

voters),

the

I

purpose

have

been

and

effect

unable—like

of
a

targeting

majority

of

Justices and every lower court to take up the question since
Vieth—to
rely.

devise

a

standard

Consequently,

I

colleagues on the panel.

on

must

which
part

courts

company

might
with

reasonably

my

esteemed

I would dismiss Plaintiffs’ Second

Amended Complaint with prejudice.

60