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Shapiro v. McManus

United States District Court, D. Maryland

August 24, 2016

STEPHEN M. SHAPIRO, et al., Plaintiffs
DAVID J. MCMANUS, JR., et al., Defendants.


          Michael B. Kimberly and Paul Whitfield Hughes, MAYER BROWN LLP, Washington, D.C., for plaintiffs.

          Jennifer L. Katz and Jeffrey Lewis Darsie, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for defendants.

          Benjamin W. Thorpe, Emmet J. Bondurant, BONDURANT MIXSON AND ELMORE LLP, Atlanta, Georgia, Gregory L. Diskant, Susan Millenky, PATTERSON BELKNAP WEBB AND TYLER LLP, New York, New York, and Michael A. Pretl, Riverton, Maryland, for Amicus Common Cause. Charles E. Davidow, Washington, D.C., Pietro Signoracci, Robert A. Atkins, New York, New York, PAUL WEISS RIFKIND WHARTON AND GARRISON LLP, and Michael Li, New York, New York, for Amicus The Brennan Center for Justice at N.Y. U.School of Law. Paul March Smith, JENNER AND BLOCK LLP, Washington, D.C., for Amicus The Campaign Legal Center, Inc.

          Before Niemeyer, Circuit Judge, and Bredar and Russell, District Judges.

          NIEMEYER, Circuit Judge:

         The plaintiffs, who are Maryland voters and registered Republicans, challenge the constitutionality of Maryland's 2011 congressional redistricting law under the First Amendment and Article I, §§ 2 and 4, of the U.S. Constitution. They allege in their second amended complaint (1) that the State drew the lines of Maryland's Sixth Congressional District with the specific intent to punish and retaliate against them and similarly situated voters by reason of how they voted and their political party registration; (2) that the State, in furtherance of this purpose, drew the Sixth District's lines in such a manner as to dilute their vote and burden their political expression; and (3) that the State succeeded in its efforts, inflicting a tangible and concrete adverse effect. The question presented is whether the plaintiffs' complaint states a justiciable claim that survives the State's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We conclude that it does, recognizing, as the Supreme Court stated in remanding this case to this three-judge court, that the plaintiffs' “legal theory [is] . . . uncontradicted by the majority in any of [the Court's] cases, ” Shapiro v. McManus, 136 S.Ct. 450, 456 (2015), and that their complaint adequately employs First Amendment jurisprudence to state a plausible claim for relief. Accordingly, we deny the State's motion to dismiss.



         At this stage, we take the factual allegations of the plaintiffs' complaint as true.

         Based on the results of the 2010 census, Maryland was entitled to eight seats in the U.S. House of Representatives, the same number it had been allotted since the 1960 census. Although Maryland's population increased by 9% from 2000 to 2010, its population growth was not evenly distributed throughout the State, necessitating redistricting to ensure districts of equal population. See Evenwel v. Abbott, 136 S.Ct. 1120, 1124 (2016) (recognizing that because “States must draw congressional districts with populations as close to perfect equality as possible, ” States “must regularly reapportion districts to prevent malapportionment”).

         On July 4, 2011, Governor Martin O'Malley, a Democrat, appointed five individuals to the Governor's Redistricting Advisory Committee: (1) Jeanne Hitchcock, Maryland's Secretary of Appointments and a former Deputy Mayor of Baltimore, a Democrat; (2) State Senate President Thomas V. Mike Miller, Jr., a Democrat; (3) House of Delegates Speaker Michael E. Busch, a Democrat; (4) Richard Stewart, a businessman who chaired Governor O'Malley's reelection campaign for Prince George's County, a Democrat; and (5) James J. King, a businessman who had previously served one term in the Maryland House of Delegates, a Republican.

         The Advisory Committee was charged with the task of drafting a redistricting plan and proposing a map for the State's eight congressional districts in light of the 2010 census results. To that end, it held 12 public meetings across the State between July 23 and September 12, 2011, receiving more than 350 comments from members of the public. The plaintiffs allege, however, that the Advisory Committee conducted its actual “deliberations and calculations entirely behind closed doors.” Second Am. Compl. ¶ 45. When drawing its redistricting map, the Advisory Committee had access to the Maryland Board of Elections' statistical data, which provided “highly detailed geographic information about voter registration, party affiliation, and voter turnout across the State, ” including “voter registration by precinct, election day turnout by precinct and party, party share of vote by voting category, and voter consistency.” Id. ¶¶ 46-47.

         The Advisory Committee completed its map on October 4, 2011, with King, the Committee's lone Republican, casting the sole dissenting vote, and presented it to the Governor. After posting the map online and receiving additional comments from the public, the Governor announced on October 15 that he would submit to the legislature a plan that was “substantially similar” to the Advisory Committee's proposal. Two days later, on October 17, the Governor's proposed redistricting map was introduced as Senate Bill (“S.B.”) 1 at an emergency legislative session. That same day, the Senate Committee on Reapportionment and Redistricting, along with the House Rules Committee, held a joint hearing on S.B. 1 before voting to approve the bill. After adopting minor technical amendments, the Senate passed the bill the next day, October 18, sending it to the House of Delegates, which, after making additional technical amendments, passed it on October 19. The Senate concurred in the House's technical amendments, and the Governor signed S.B. 1 into law on October 20, 2011, three days after it had been introduced. See Md. Code Ann., Elec. Law §§ 8-701 to -709.

         The enacted State Plan created eight congressional districts that were mathematically equal in population -- seven of the districts having an adjusted population of 721, 529 and the eighth having an adjusted population of 721, 528. The changes effected by the State Plan, however, were far more extensive than those needed to achieve population equality. Indeed, while “six of the eight existing congressional districts remained within 3% of the ideal size of 721, 529 people[, ] . . . the Plan shuffled nearly one-in-three Marylanders from one district to another, scrambling the representation of 1.6 million people.” Second Am. Compl. ¶ 61.

         The reshuffling of Maryland's population was particularly extensive with respect to Maryland's Sixth Congressional District. Historically, the Sixth District included western Maryland and much of north-central Maryland. In the years following the Supreme Court's 1964 holding in Wesberry v. Sanders, 376 U.S. 1 (1964), that States must conduct regular redistricting to ensure districts of equal population, Maryland adopted a series of five maps that were used in the 23 congressional elections held from 1966 through 2010. Under those maps, the Sixth District always included the State's five most northwestern counties in their entirety: Garrett, Allegany, Washington, Frederick, and Carroll Counties. Over the years, the Sixth District also included various portions of Baltimore, Howard, Montgomery, and Harford Counties to achieve the appropriate population count. But the identifiable core, consisting of the five northwestern counties, stayed constant, constituting not only a majority of the Sixth District's territory but also most of its population. Specifically, after the State revised its district lines in 1991 using the data from the 1990 census, 83% of the Sixth District's population lived in the five northwestern counties, and that number rose to 88% under the State's 2002 Redistricting Plan.

         The 2010 census showed that, compared to the ideal district population of 721, 529 residents, the Sixth District had 10, 186 extra residents, a variation of only 1.4%. Yet, while the census data would have required only a small adjustment to remove some 10, 000 residents from one of the counties along the District's eastern edge, but not from the five northwestern counties, the State completely reshuffled the Sixth District. It moved 360, 000 residents out of the Sixth District --virtually one-half of its population -- and then added to the District 350, 000 residents from Montgomery County, a Democratic stronghold that includes Washington, D.C. suburbs. The plaintiffs allege that this wholesale shifting and transfer was done not “by reference to geography or compliance with legitimate redistricting criteria, ” Second Am. Compl. ¶ 7(c), but rather to dilute the Republican voters' voice in the next election. The complaint alleges further that “a net total of over 65, 000 registered Republican voters” were transferred from the Sixth District and “a net total of over 30, 000 Democratic voters” were imported into the District, for a swing of some 95, 000 voters. Id. ¶ 4. Moreover, although Frederick County had been included in the Sixth District continuously since 1872, the redistricting split the County's population roughly in half between the Sixth and Eighth Districts. Similarly, while Carroll County had been included in the Sixth District since 1966, the redistricting removed it from the Sixth District entirely and split its population between the Eighth and First Districts.

         The plaintiffs' complaint alleges that the major reshuffling of the Sixth District's population directly affected the District's political complexion. Historically, the Sixth District was reliably Republican. Indeed, “[i]n the 70 years between January 1943 and January 2013, the [D]istrict was represented in Congress by members of the Republican Party in four out of every five years.” Second Am. Compl. ¶ 78. In the 2010 election, Representative Roscoe Bartlett, the Republican candidate who had represented the Sixth District in Congress since 1993, won reelection by a margin of 28 percentage points. But because the areas removed from the Sixth District were predominantly Republican while the area added was predominantly Democratic, the parties' respective shares of the District's registered voters roughly reversed so that, at the time of the 2012 general election, 33% of the new Sixth District's registered voters were registered as Republicans, while 44% were registered as Democrats. In that election, Democratic candidate John Delaney, a newcomer to politics, defeated Representative Bartlett by 21 percentage points, with “the long-time Congressman's share of the vote dropp[ing] from 61.45% to 37.9% in a single election cycle.” Id. ¶ 86. Delaney won reelection in 2014.

         Maryland's 2011 Redistricting Plan also affected the contours of other districts, most particularly Maryland's Eighth District. That district had previously included most of the portion of Montgomery County that was reassigned to the Sixth District, and it also absorbed many of the citizens of Frederick and Carroll Counties who were removed from the Sixth District. After redistricting, the Eighth District's proportion of registered Republicans rose significantly, but registered Democrats continued to outnumber registered Republicans by a sizeable margin. Specifically, prior to redistricting, registered Democrats outnumbered registered Republicans in the Eighth District by three to one; after redistricting, the ratio was roughly two to one. After redistricting, Representative Chris Van Hollen, a Democrat, continued to win reelection to represent the Eighth District after redistricting.


         Three Maryland citizens, acting pro se, commenced this action in November 2013, naming as defendants the Chair and the Administrator of the State Board of Elections and alleging that the 2011 Redistricting Plan violated their rights under the First Amendment and Article I, § 2, of the U.S. Constitution. A single district court judge granted the State's motion to dismiss, Benisek v. Mack, 11 F.Supp.3d. 516 (D. Md. 2014), and the Fourth Circuit Court of Appeals summarily affirmed, Benisek, 584 F.App'x. 140 (4th Cir. 2014). The Supreme Court, however, reversed, concluding that the plaintiffs' constitutional challenge was not “wholly insubstantial” and that therefore it had to be decided by a district court composed of three judges, as required by 28 U.S.C. § 2284. See Shapiro, 136 S.Ct. at 456. In doing so, the Court recognized that the theory underlying the plaintiffs' First Amendment claim had originally been suggested by Justice Kennedy and was “uncontradicted by the majority in any of [the Court's] cases.” Id.

         After remand, the plaintiffs, now represented by counsel, filed a second amended complaint, adding six additional plaintiffs and refining the theory underlying their constitutional challenge to the 2011 congressional Redistricting Plan. The six new plaintiffs, as well as at least one of the original plaintiffs, are all registered Republicans who lived in the Sixth District prior to the Plan's enactment. While three of these plaintiffs still reside in the Sixth District, four of them now live in the Eighth District as a result of the Plan. The plaintiffs' complaint challenges the State's “cracking” of the Sixth District, alleging that those responsible for the 2011 Plan “purposefully and successfully flipped [the District] from Republican to Democratic control by strategically moving the [D]istrict's lines by reason of citizens' voting records and known party affiliations.” Second Am. Compl. ¶ 1. They allege that “[t]he drafters of the Plan focused predominantly on the voting histories and political-party affiliations of the citizens of the State in deciding how to” redraw the Sixth District's lines and that they “did so with the clear purpose . . . of diluting the votes of Republican voters and preventing them from electing their preferred representatives in Congress.” Id. ¶ 6. They allege further that the Plan achieved its intended effect, imposing a significant burden on the former Sixth District's Republican voters by preventing them in 2012 and 2014 “from continuing to elect a Republican representative . . ., as they had in the prior ten congressional elections.” Id. ¶ 7(b). And they maintain that “the State cannot justify the cracking of the [Sixth] District by reference to geography or compliance with legitimate redistricting criteria.” Id. ¶ 7(c). Based on these allegations, they claim that the Plan's redrawing of the Sixth District's boundaries violated their rights under the First Amendment and §§ 2 and 4 of Article I of the U.S. Constitution.

         The State again filed a motion to dismiss the complaint, arguing that the plaintiffs' claims are nonjusticiable because the plaintiffs “fail[ed] to set forth a discernable, manageable standard that would permit this Court to adjudicate their claims” under either the First Amendment or Article I. The State accepts that “unlawful political gerrymandering claims may be justiciable in concept” but emphasizes that the Supreme Court has yet to identify a judicially discernable and manageable standard for adjudicating such claims and has twice indicated that, in the absence of such a standard, political gerrymandering claims must be dismissed. See League of United Latin American Citizens v. Perry (LULAC), 548 U.S. 399 (2006); Vieth v. Jubelirer, 541 U.S. 267 (2004). The State argues further that the plaintiffs “failed to allege that the Plan imposed any actual restriction on any of their recognized First Amendment rights.”

         The plaintiffs contend that their complaint “offers . . . what was missing in Vieth and LULAC: a clear and objective standard for identifying a constitutionally significant burden on the plaintiffs' representational rights.” Relying on Justice Kennedy's statement in his separate opinion in Vieth that “First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters' representational rights, ” 541 U.S. at 314 (Kennedy, J., concurring in the judgment), they contend that the First Amendment offers a well-settled framework for considering political gerrymandering claims. They state that the framework would require the court to determine first, whether “the State consider[ed] citizens' protected First Amendment conduct in deciding where to draw district lines, and did . . . so with an intent to dilute the votes of those citizens by reason of their protected conduct”; second, whether “the redistricting map, in actual fact, dilute[d] the votes of the citizens whose constitutionally-protected conduct was taken into account to such a degree that it imposed a concrete adverse impact”; and third, whether the map was “necessary as drawn to achieve some compelling state interest.” When assessed against this framework, they maintain that their complaint states a justiciable claim upon which relief can be granted.


         The U.S. Constitution gives both the States and Congress a role in setting the procedural rules by which citizens select the members of the House of Representatives. Specifically, Article I provides that “[t]he House of Representatives shall be composed of Members chosen every second Year by the People of the several States, ” U.S. Const. art. I, § 2, cl. 1, and further that “[t]he Times, Places and Manner of holding Elections for . . . Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, ” Id. § 4, cl. 1. Article I thus “leaves with the States primary responsibility for apportionment of their federal congressional . . . districts, ” Growe v. Emison, 507 U.S. 25, 34 (1993), while also granting Congress the power to override the decisions made by the States. Congress currently uses this power only to require that States establish single-member districts. See 2 U.S.C. § 2c (“In each State entitled . . . to more than one Representative . . ., there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative”).

         The process of establishing and revising district lines is a “highly political task.” Growe, 507 U.S. at 33. Indeed, “[t]he very essence of districting is to produce a different . . . result than would be reached with elections at large, in which the winning party would take 100% of the legislative seats.” Gaffney v. Cummings, 412 U.S. 735, 753 (1973). Because the supporters of our country's two major political parties are not evenly distributed within any State, “[i]t is not only obvious, but absolutely unavoidable, that the location and shape of districts may well determine the political complexion of the area.” Id. And those State officials charged with redistricting will of course “recognize the political consequences of drawing a district line along one street rather than another.” Id. The practical “reality is that districting inevitably has and is intended to have substantial political consequences.” Id.; see also Vieth, 541 U.S. at 285 (plurality opinion) (“The Constitution clearly contemplates districting by political entities, see Article I, § 4, and unsurprisingly that turns out to be root-and-branch a matter of politics”).

         Because redistricting is quintessentially a political process that the Constitution assigns to the States and Congress, federal courts' supervision is largely limited. See Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S.Ct. 1421, 1427 (2012) (recognizing that “a controversy involves a political question . . . where there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it” and that, “[i]n such a case, . . . a court lacks the authority to decide the dispute before it” (internal quotation marks and citations omitted)). For example, because “[p]olitics and political considerations are inseparable from districting and apportionment, ” a court cannot invalidate a map merely because its drafters took political considerations into account in some manner. See Gaffney, 412 U.S. at 753. Indeed, such an approach “would commit federal and state courts to unprecedented intervention in the American political process.” Vieth, 541 U.S. at 306 (Kennedy, J., concurring in the judgment).

         Moreover, citizens have no constitutional right to reside in a district in which a majority of the population shares their political views and is likely to elect their preferred candidate. Nor do political groups have any right to a district map under which their candidates are likely to win seats in proportion to the party's overall level of support in the State. See Davis v. Bandemer, 478 U.S. 109, 130 (1986) (plurality opinion) (“Our cases . . . clearly foreclose any claim that the Constitution requires proportional representation or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be”); see also Vieth, 541 U.S. at 288 (plurality opinion) (“[The Constitution] guarantees equal protection of the law to persons, not equal representation in government to equivalently sized groups”).

         But even though the districting process is largely political in nature, State officials are nonetheless limited by specific provisions of the U.S. Constitution. Cf. Rutan v. Republican Party of Ill., 497 U.S. 62, 64 (1990) (“To the victor belong only those spoils that may be constitutionally obtained” (emphasis added)). To be sure, for many years, the Supreme Court “resisted any role in overseeing the process by which States draw legislative districts, ” Evenwel, 136 S.Ct. at 1123, wary of “enter[ing] th[e] political thicket, ” Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality opinion). But this changed with the Supreme Court's decision in Baker v. Carr, 369 U.S. 186 (1962), where the Court held that a claim alleging that a state-legislative map violated the Equal Protection Clause by establishing districts with unequal populations was justiciable.

         Building on Baker, the Supreme Court subsequently invalidated a State's malapportioned congressional map in Wesberry, holding that Article I, § 2's provision for the election of Representatives “‘by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's.” 376 U.S. at 7-8. Today, under Wesberry and its progeny, “States must draw congressional districts with populations as close to perfect equality as possible.” Evenwel, 136 S.Ct. at 1124. Similarly, the Court held in Reynolds v. Sims that “the Equal Protection Clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis, ” 377 U.S. 533, 568 (1964), although “jurisdictions are permitted to deviate somewhat from perfect population equality to accommodate traditional districting objectives” when drawing these districts, Evenwel, 136 S.Ct. at 1124. Together, Wesberry and Reynolds establish the judicially enforceable rule of “one person, one vote.”

         Federal courts are also authorized to ensure that the districting process remains free from constitutionally prohibited racial discrimination. Thus, a plaintiff pursuing a racial gerrymandering claim under the Equal Protection Clause states a justiciable claim when he alleges that “race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district.” Ala. Legislative Black Caucus v. Alabama,135 S.Ct. 1257, 1270 (2015) (quoting Miller v. Johnson,515 U.S. 900, 916 (1995)). By showing “that the legislature subordinated traditional race-neutral districting principles . . . to racial considerations, ” Miller, 515 U.S. at 916, a ...

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