Updated:
January 30, 2018

Does the First Amendment prohibit a state legislature from redistricting that is intended to secure partisan advantage for the governing party and has the effect of entrenching that party’s advantage?

The ACLU believes that under the Constitution, voters must choose their representatives, not the other way around.  Following the amicus brief filed by the ACLU earlier this term in Gill v. Whitford, the ACLU, along with the ACLU of Maryland and the New York Civil Liberties Union, filed an amicus brief in support of Republican voters who challenged Maryland’s U.S. congressional map, implemented by the governing Democratic Party.

Locking up the political process for the purpose of disabling competition among partisan viewpoints is at odds with the proper role of government in administering elections. It is inconsistent with democratic values and constitutional precedent holding that government must function as a neutral referee in administering elections. The test offered by the ACLU has courts consider whether the state intended to secure a partisan advantage in favor of its preferred political party and whether the enacted map had the effect of entrenching that party. When plaintiffs make this showing, the state must demonstrate that the map it drew was necessary to advance legitimate state interests. If the state cannot meet its burden, the map violates the First Amendment.

In applying this test, courts should require a showing of entrenchment—that the redistricting has locked up the political process, ensuring the majority party will win against likely changes in voter preferences. In addition, the court should look at the entire statewide map – not just a single district. The goal and effect of partisan gerrymandering is to maximize party control across the state, and therefore calls for a statewide approach in most cases. Even where voters in a single district challenge a partisan gerrymander, the court should assess the intent, effect, and state interests across the entire districting plan.

The court below applied a different test so has not considered the Maryland congressional map under this standard. However, the record evidence suggests that on remand the challengers may be able to show: (1) that the state acted with the intent to entrench the state’s preferred political party on a statewide basis; and (2) that the state accomplished that end.

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