Wednesday, March 13, 2019

MFIA Files Amicus Brief in SCOTUS Gerrymandering Case

Partisan gerrymandering is poised to be one of the most high profile topics before the Supreme Court this year, and will be decided in two upcoming cases: Lamone v. Benisek and Rucho v. Common Cause. Both cases give the Court a chance to rule that partisan gerrymandering, colloquially described as “representatives picking their voters instead of voters picking their representatives,” violates the Constitution.

The Media Freedom and Information Access (MFIA) Clinic, on behalf of the Floyd Abrams Institute for Freedom of Expression at Yale Law School, recently filed an amicus brief opposing partisan gerrymandering on the grounds that it violates the First Amendment. The brief argues that the First Amendment forbids state legislatures from discriminating against voters “with disfavored views” via redistricting, the process of redrawing the boundaries of voting districts. The MFIA brief takes the view that just because states are acting within their constitutional authority to create these voting districts, doesn’t mean the Court can’t rule that the partisan process of dividing these districts violates voters’ rights to free speech.

MFIA contends that voting is political speech and that partisan gerrymandering attempts to limit that speech. When citizens cast their ballots, they send a message — to candidates, to public officials, and to their fellow citizens — about their beliefs, political positions, and policy views. For example, it’s been reported that 60% of voters in 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 protected by the First Amendment as political speech. Voting is simply another manner by which citizens express that speech, explained Yale Law School Clinical Lecturer in Law Francesca Lina Procaccini, an attorney with the Clinic.

The Constitution forbids the government from picking winners and losers when it comes to the game of political speech. It’s obvious that the Constitution forbids states from discounting votes outright for a candidate of one political party by, say, 20% to ensure its preferred candidate wins the election. But that’s exactly how partisan gerrymandering operates, according to Yale Law student Simon Brewer ’20: by minimizing the political strength of votes for disfavored candidates and political views.

It’s well documented that both Democrats and Republicans engage in partisan gerrymandering when it works to their advantage. The MFIA brief argues that by applying even-handed free speech principles, the Court can end the practice entirely.  “Citizens shouldn’t have to depend on government approval of their speech to avoid adverse consequences,” said Procaccini. “That is the very essence of what the First Amendment protects against.”

The underlying legal principles at play throughout these partisan gerrymandering cases fit with the Clinic’s long-standing goal to increase government transparency, defend the essential work of news gatherers, and protect freedom of expression. The Clinic provides pro bono legal services, pursues impact litigation and develops policy initiatives in line with those principles.

by Leah Ferentinos