Later this week, the Supreme Court—for the second time this term—will hear argument in a blockbuster partisan gerrymandering case.  Back in October, the Justices heard argument in Gill v. Whitford, a challenge to Wisconsin’s pro-Republican gerrymander of its State Assembly districts.  Now, the Justices will hear oral argument in Benisek v. Lamone, a challenge to Maryland’s effort to redraw its 6^th congressional district to create an additional Democratic seat in Congress.  In both cases, the state legislature sought to subordinate a group of voters because of their political affiliation and to dilute their voting strength.

The facts of Benisek—like those in Gill—show just how far state legislatures will go to entrench their party in power.  Relying on sophisticated new data, the mapmakers moved 66,417 Republican voters out of the 6^th district while moving 24,460 Democratic voters into it, producing a shift in the district of more than 90,000 votes.  This produced the biggest redistricting swing from one party to another of any congressional district in the nation.

Gill and Benisek differ in their details—Gill is a statewide claim, while Benisek only challenges the redrawing of a single district—but at their core they pose the same fundamental question: does the Constitution permit states to discriminate against voters on the basis of political affiliation?  The answer is no.

When a state draws districts to entrench a political party in power, it violates bedrock First Amendment principles that prohibit state-sponsored discrimination on the basis of political viewpoint and affiliation.  Partisan gerrymandering—whether committed by Democratic or Republican-dominated legislatures—is at war with fundamental First Amendment principles.  Under our Constitution, states cannot rig the electoral process to entrench the governing party in power.

Everyone expects Gill and Benisek to be sharply divided rulings, with Justice Kennedy holding the key vote.  During oral argument in Gill, Justice Kennedy expressed his view—first made in an important concurring opinion in a 2004 case—that partisan gerrymandering is best analyzed under First Amendment principles. Benisek, which only presents a First Amendment claim, is tailor-made for Justice Kennedy.

Throughout his long judicial career, Justice Kennedy’s First Amendment jurisprudence on the Court stands out.  In case after case, Kennedy has written forcefully to vindicate the “fundamental principle of the First Amendment that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.”  He has explained that the First Amendment does not permit the government to disadvantage persons simply because of “dislike of the individual’s political association.”  These principles do not permit state legislative majorities to draw lines in order to subordinate their political opponents.

Partisan gerrymandering at its core is viewpoint discrimination pure and simple, and it cannot be squared with our Constitution’s promise that voters choose their representatives, not the other way around.

During the Gill argument, Justice Kennedy asked one of the attorneys defending the Wisconsin gerrymander, “Suppose a state constitution or state statute says all districts shall be designed as closely as possible to conform with traditional principles, but the overriding concern is to increase — have a maximum number of votes for party X or party Y. What result?”  No state has been audacious enough to enact such a law, but we’ve seen plenty of evidence that, left unchecked, state legislatures will use their authority over redistricting to seek to entrench the majority party in power and dilute the votes of those belonging to the minority party in an extreme manner.  In Maryland, North Carolina, Pennsylvania, and Wisconsin—to name just a few states where there’s been litigation—state legislatures have pushed the envelope, taking advantage of the availability of sophisticated statistics and computer programs to draw district lines that give the majority party a lock on power and subordinate those affiliated with a disfavored party.

The Framers of our Constitution recognized that “those who have power in their hands will not give it up while they can retain it.  On the [c]ontrary we know they will always when they can rather increase it.”  Appreciating this dynamic, the Framers gave the courts the responsibility to check majoritarian abuses of power and enforce the Constitution’s limits on government power.  It was the Framers’ genius to create an independent judicial branch to serve as a constitutional check on government authority.  A gerrymandered legislature won’t police itself, but the courts can vindicate the Constitution and ensure respect for the rule of law.  Under our Constitution, it is the Supreme Court’s responsibility to check state electoral abuses and ensure that voters choose their representatives, not the other way around.