The United States Supreme Court recently heard oral arguments in two cases challenging the constitutionality of partisan gerrymanders in Maryland and North Carolina. The Justices struggled with when, if ever, partisan gerrymandering amounts to viewpoint discrimination in violation of the First Amendment. Yet they already have all the answers to these questions right in front of them—in a succinct, spot-on amicus brief MFIA filed on behalf of the Floyd Abrams Institute for Freedom of Expression.
MFIA’s brief makes the argument that partisan gerrymanders are unconstitutional as a prototypical form of viewpoint discrimination. In both Maryland and North Carolina, the challenged congressional districts were drawn using past voting history. Explicit statements by lawmakers demonstrated an intent to discriminate against citizens on the basis of their partisan viewpoints. At oral argument, Justices across the ideological spectrum asked questions that indicated they are evaluating the cases with MFIA’s pure First Amendment approach in mind. For example, Justice Alito asked questions about “benign viewpoint discrimination,” and premised a question about the regulation of speech by clarifying that, in this instance, “the speech is the votes.” Justice Sotomayor described partisan gerrymandering as “discriminating on the basis of a group’s speech and diluting their vote accordingly.”
Given that the argument transcripts abound with the rhetoric of speech-based viewpoint discrimination, the Court can—and should—find the answers to the following key questions in MFIA’s amicus brief.
“[E]ven if the map provides only a small partisan advantage, that would be subject to challenge in litigation?” – Justice Alito
Here, Justice Alito is suggesting that not all partisan gerrymanders are as egregious as those currently before the Court, but that analyzing gerrymandering under the First Amendment would subject every instance of sorting voters based on their viewpoint to constitutional scrutiny. But this is no cause for concern.
It is axiomatic that “the government offends the First Amendment when it imposes burdens on certain speakers based on the content of their expression.” Partisan gerrymanders do just that. Partisan gerrymandering assigns voters to districts on the basis of their political views with the aim of devaluing the votes of disfavored speakers and enhancing the political impact of preferred speech—goals this Court has emphatically found impermissible in the context of political speech. (citation omitted).
In other words, it does not matter for the purpose of the First Amendment how many people the government is discriminating against on the basis of viewpoint; the First Amendment only asks whether the government acts with that unconstitutional aim at all. The simplicity of asking this question makes the resolution easy for the Court. As MFIA’s brief explains, the Court does not need to create arbitrary, unmanageable thresholds for identifying a constitutional harm. Justice Sotomayor agreed at the oral argument, stating that “what [legislators] can’t do in picking . . . a map is discriminate against a group of people based on their political views.” MFIA’s amicus brief explains that legislators can rely on any number of “factors long-approved by this Court . . . .” The only thing they can’t do under the First Amendment, as Justice Sotomayor put it, is “use the one criteri[on] that intentional and invidiously looks to exclude the other party.”
“What do you do with the fact that partisan identification is not the only basis on which people vote? Do you see electoral results change dramatically depending [on other factors]? And how do you deal with . . . those factors that depart from the arguments about the inevitability of electoral results based on partisan identification?” – Chief Justice Roberts
Sometimes, even if redistricting is intended to discriminate against certain voters based on their viewpoint, other factors result in electoral successes for those same disfavored voters. As the Chief Justice explained, “a lot of the predictions” made based on voting history and past speech “prove to be very, very wrong very often.” Roberts even pointed to the 2018 midterm elections as an example where “a lot of things that were never supposed to happen happened.” If a gerrymander is ineffective, should it still be subject to scrutiny? The answer is a clear yes.
The Court need not evaluate the efficacy of a partisan gerrymander to recognize it as viewpoint discrimination. The First Amendment broadly prohibits state action constituting viewpoint discrimination regardless of whether that state action achieves its intended effects. The same principle applies to partisan gerrymanders: intentional efforts to discriminate on the basis of viewpoint violate the First Amendment, regardless of whether they succeed. Viewpoint discrimination itself undermines our democracy, in every form it takes, including the partisan gerrymander. (footnotes omitted).
When it comes to viewpoint discrimination—including partisan gerrymanders—intent is enough to establish a constitutional harm.
“[A]ren't . . . all of these [cases] going to potentially end up in court? Where judges are going to have to decide what’s the right answer?” – Justice Alito
Several Justices expressed a concern that courts will be flooded with cases if the Supreme Court rules that partisan gerrymandering is unconstitutional. This may be true, if the Court were to accept a vague standard. But the First Amendment’s required analysis, as described by MFIA, negates this concern. MFIA’s amicus brief highlights Justice Scalia’s comment in Vieth v. Jubelirer that “the vaguer the test for availability, the more frequently interest rather than necessity will produce litigation.” MFIA’s amicus brief notes that, “[f]ortunately, the First Amendment provides a bright line rule: intentionally targeting individuals because of their partisan views and prior voting history constitutes viewpoint discrimination and is subject to strict scrutiny.” According to Justice Scalia’s own estimation, the firm rule offered by the First Amendment will lessen the influx of unnecessary litigation.
History has borne out this lesson. At oral arguments, Justice Ginsburg reminded her colleagues that this “was the exact same argument about [striking down] one-person/one-vote: [that] the courts are going to be flooded with cases and they’ll never be able to get out of it. That’s not what happened.” This is because in the one-person/one-vote cases, the Court issued a clear, bright line rule requiring equal population and legislators complied. Even the lawyer arguing on behalf of the Maryland legislature assured the Court that in Maryland and surely “in other states as well,” legislators would “change their behavior” in response to the Court setting down a constitutional rule.
“[H]istory has a little bit of, perhaps, significance there. Gerrymandering has been part of American history from the beginning. . . .” – Chief Justice Roberts
There are several problems with Chief Justice Roberts’s appeal to historical practice. First, MFIA’s amicus brief notes that “the history of partisan gerrymandering is a history of constitutional condemnations of the practice.” Even though it is a part of American history, gerrymandering has long been challenged as unconstitutional.
The first alleged partisan gerrymander, involving Virginia’s 1788 districting, was decried by residents as an effort to thwart the nascent Constitution, and by newspapers as “a violation of the right of a free people . . . to choose their representatives.” A quarter century later, . . . [an infamous Massachusetts map] was immediately and resoundingly denounced as a “grievous wound on the Constitution,—it in fact subverts and changes our Form of Government.” The Federalists viewed the map as “a blow at the constitution and a travesty upon the Bill of Rights,” and a petition presented to the Massachusetts legislature to redraw the district characterized the map as “unconstitutional, unequal, and unjust.” The Boston Gazette attributed the results of the subsequent election to the “unconstitutional hackings and hewings of the state.” Where the same stunt was attempted in other states over the next several decades, the reaction was the same: partisan gerrymanders are an abuse of power and “an attempt to deprive the people of their rights.” (footnotes omitted).
Further, “[t]he longstanding use of a governmental practice, even on a widespread basis, does not prevent this Court from inquiring into its constitutionality or immunize it from judicial intervention.” MFIA’s amicus brief highlights the drawing of districts of unequal population, racial gerrymandering, and political patronage as three examples of contexts in which appeals to historical longevity failed to save a practice from constitutional scrutiny.
As Chief Justice Roberts said himself in oral arguments, “[W]e’re being asked to do a lot of things we haven’t done in the past, and it’s because there’s been a change in how redistricting has been done.” History alone cannot save the constitutionally abhorrent practice of partisan gerrymandering, especially now that technology has turned discriminatory map drawing into a methodical science.
To any Justices—or concerned citizens—seeking more answers to questions about the proper lens through which to scrutinize partisan gerrymandering, look no further than MFIA’s amicus brief. The answers are right here.
 Italicized portions are direct quotes from MFIA’s amicus brief.