Back to Basics: Why Partisan Gerrymandering Violates the First Amendment

Today, MFIA filed an amicus brief¹ opposing partisan gerrymandering on behalf of the Floyd Abrams Institute for Freedom of Expression² at Yale Law School.[1]The brief supports plaintiffs challenging partisan gerrymanders in two cases currently before the Supreme Court: Lamone v. Benisek³(No. 18-726) and Rucho v. Common Cause⁴(No. 18-422). Both cases present prime opportunities for the Court to hold, once and for all, that invidious partisan gerrymanders violate the Constitution. 

Like the plaintiffs in both cases, the brief argues that the First Amendment forbids state legislatures from discriminating against voters with disfavored views via the redistricting process. Specifically, the brief makes clear that there is no special “redistricting exception” to ordinary First Amendment principles. The mere fact that a state is acting pursuant to its authority to draw electoral districts to achieve its unconstitutional ends does not insulate⁵ its actions from judicial scrutiny. States are simply forbidden—as they always are⁶—from acting in ways that discriminate against speech expressing a disfavored point of view. 

The Supreme Court has struggled⁷ with partisan⁸ gerrymanders⁹ for decades—including as recently as last year¹⁰—while searching for a “judicially manageable standard” to evaluate such claims. The Court’s reluctance to adopt a single social scientific metric¹¹is understandable, and only reinforces the reasons the Court should apply a straightforward First Amendment analysis in these cases:  doing so requires neither doctrinal innovation nor duels between competing experts presenting interpretations of statistical analyses. Instead, longstanding First Amendment principles, which courts routinely apply in a variety of contexts, can cleanly solve the partisan gerrymandering problem. 

The First Amendment is the appropriate constitutional provision through which to evaluate partisan gerrymandering because, quite simply, voting is political speech and partisan gerrymanders attempt to burden that speech. When citizens cast their ballots, they send¹²a¹³message¹⁴—to candidates, to public officials, and to their fellow citizens about their beliefs: what political positions they identify with, what policies they ascribe to, or where they what to see the country or state move. Indeed, it’s been reported that 60% of voters¹⁵in the 2018 midterm election used their votes “to send a message about the president.” If a citizen expressed these views in any other medium—whether a book, a movie, an anonymous leaflet, a petition, or a campaign advertisement—they would be unquestionably protected by the First Amendment as political speech. Voting is simply another form of political speech, albeit one with even higher stakes because of the legal significance a vote carries. 

Whenever citizens are expressing their political beliefs, the Constitution forbids the government from picking and choosing favorites. A state could not, by law, require its congressional representatives to hold a predetermined partisan affiliation. Nor could a state constitutionally discount the votes for a candidate of one political party by 20% in order to ensure its preferred candidates prevailed in their elections. But the intended effect is the same for partisan gerrymandering: to minimize the political strength of, and the likelihood of electoral success by, only those candidates affiliated with out-of-power parties. In fact, the North Carolina defendants adopted redistricting criteria with the explicitintent¹⁶ of predetermining the outcome of congressional elections as 10 Republicans and 3 Democrats¹⁷. The Court should treat these gerrymanders for what they are: unconstitutional laws designed to suppress the speech of some citizens to enhance the speech of others.

Under a First Amendment framework, partisan gerrymandering challenges are simple to resolve. The Supreme Court has said that “it is all but dispositive¹⁸” to conclude a law discriminates on the basis of viewpoint. Such laws are, for good reason, constitutionally repugnant. The Constitution forbids viewpoint discrimination because it distorts the relationship between citizens and their elected officials. A citizen should not depend on government approval of their speech to avoid adverse consequences. Rather, government officials should depend on their citizens’ approving speech for their continuance in office. 

Benisek and Ruchopresent unique opportunities for the Supreme Court. The Justices can reaffirm that the First Amendment is neither a liberal nor a conservative cause¹⁹, but a core principle underpinning our democracy. Both Democrats and Republicans engage in partisan gerrymandering when it works to their advantage. By simply applying well-established and even-handed free speech principles, the Court can put an end to the practice once and for all.