In 2011, the Maryland legislature drew the 6th congressional District to dilute the voting strength of Republican voters, seeking to flip the district from Republican to Democratic and thereby create a seventh seat in the Democratic congressional delegation. To achieve this end, the mapmakers shuffled hundreds of thousands of citizens either out of or into the 6th District, using sophisticated political data to produce an additional Democratic seat. John Benisek, along with other Republican party affiliated voters, sued Maryland election officials, claiming that the mapmakers had gerrymandered the state’s 6th congressional District and subordinated Republican voters. In a November 2018 ruling, a three-judge district court agreed with the challengers that the map violated the First Amendment.

In 2016, the North Carolina legislature drew a congressional district map that sought to maximize the election of Republican candidates. To that end, the mapmakers packed and cracked Democratic voters, seeking to ensure that Republicans would wield political power far in excess of votes cast in the polls. Indeed, the mapmakers were explicit that the map was drawn based on the view that “electing Republicans is better than electing Democrats.” Voters and others sued, and after a trial, a three-judge district court held that the map was an unconstitutional partisan gerrymander, a holding it reaffirmed again following the Supreme Court’s decision in Gill v. Whitford. Both cases were appealed directly to the Supreme Court, which agreed to hear them in January 2019.

CAC filed a friend-of-the-court brief in support of appellees, arguing that partisan gerrymandering subordinates adherents of one political party and violates the Constitution’s guarantee of freedom of political association and equal protection for all persons, regardless of their political identity. As our brief explained, the Framers of our nation’s charter established a system of government in which the people choose their elected representatives, not the other way around, writing democratic principles into numerous aspects of the Constitution. Buttressing our Constitution’s commitment to popular sovereignty and self-governance, the First Amendment protects the right of individuals to associate for political ends and the Fourteenth Amendment ensures that all Americans enjoy equal protection of the laws regardless of political affiliation. Extreme partisan gerrymandering, which subordinates adherents of a disfavored political party and degrades their right to vote, cannot be squared with the text and history of the Constitution. Further, the brief explains that, in our constitutional system, the judicial branch is a constitutional check on governmental abuses of power. Thus, it is the Court’s responsibility to remedy this violation of voters’ constitutional rights.

In a 5-4 decision, the Court held that federal courts lack the power to adjudicate constitutional claims attacking partisan gerrymandering by the states because, in the Court’s view, such claims present a nonjusticiable political question that the Framers reserved for state legislatures and the federal Congress. Justice Kagan issued a powerful dissent, explaining that “[t]he partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” Her dissent echoed the arguments made in CAC’s brief, stressing that the Framers designed a democratic system of government where, as James Madison wrote, the “power is in the people over the Government, and not in the Government over the people.”