Annotated Guide to the Benisek Amicus Briefs

By Thomas Wolf
On March 28, the Supreme Court will hear argument in Benisek v. Lamone, the partisan-
gerrymandering challenge to Maryland’s 2011 congressional map. Benisek is one of the
highest-profile cases of the Court’s 2017-18 term: Along with Gill v. Whitford, a partisan-
gerrymandering case argued last October, Benisek offers the Court an opportunity to
establish clear limits for the first time on extreme gerrymandering.
Ahead of argument, the Court received fifteen amicus briefs from a diverse array of
constitutional law professors, civil rights organizations, good government groups,
states, and politicians—some supporting the plaintiffs (who are the appellants in this
case), others supporting Maryland (which is the appellee in this case). To help court
watchers get up to speed, the Brennan Center prepared this short annotated guide to
the amicus briefs, which includes summaries of each brief’s most prominent or unique
points.
For more on Benisek, including key filings or court rulings from all phases of the case,
visit our regularly updated case page. And for a quick introduction to the many amicus
briefs on partisan gerrymandering filed earlier this term, visit our annotated guide to
the Whitford amicus briefs.
Brief of the Brennan Center for Justice in Support of Appellants
Summary: This brief, filed by the Brennan Center for Justice, explains that Maryland’s
2011 congressional redistricting was an extreme partisan gerrymander designed to
maximize and lock-in the Democratic supermajority in the state’s congressional
delegation. As the brief demonstrates, readily discernable evidentiary signposts—such
as single-party control of the redistricting process—can help the courts accurately
differentiate between lawful redistricting and unlawful, extreme partisan gerrymanders.
The Brennan Center and the law firm Holwell Shuster & Goldberg LLP are co-counsel
for this brief.

Brief of Professor Michael Kang in Support of Appellants

Summary: This brief, filed by Professor Michael Kang of Emory University School of
Law, explains that the Supreme Court has never held that partisan advantage is a valid
basis for government action, and that such advantage cannot be a legitimate basis for
redistricting. The law firm Davis Polk LLP is counsel for Professor Kang’s filing.

Brief of the American Civil Liberties Union, the ACLU of Maryland, and the
New York Civil Liberties Union in Support of Appellants
Summary: This brief, filed by the ACLU, two of its state affiliates, and Professor
Samuel Isaacharoff of the New York University School of Law, argues that courts
should focus on entrenchment—a state of affairs where legislators have drawn districts
to insulate a party’s hold on power from electoral shifts—to determine when a map
violates the constitution. The amici further explain that partisan-gerrymandering claims
are more manageable on a state-wide, rather than a district-specific, basis.

Brief of the Campaign Legal Center and the Southern Coalition for Social Justice
in Support of Neither Party
Summary: This brief, filed by the Campaign Legal Center, the Southern Coalition for
Social Justice, and Professor Nicholas Stephanopoulos of the University of Chicago
Law School, argues that Maryland’s congressional map would likely qualify as an
unconstitutional partisan gerrymander under the test that the Campaign Legal Center
proposed in Gill v. Whitford.

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Brief of Bipartisan Current and Former Members of Congress in Support of
Appellants
Summary: The Constitutional Accountability Center filed this brief on behalf of a
bipartisan panel of 25 current and former members of Congress. The brief examines
the Constitution's text, structure, and history—as well as the Supreme Court's case
law—to illuminate both how redistricting plans designed to entrench a party's majority
status violate core constitutional values and why the courts must put limits on these
extreme partisan gerrymanders.

Brief of the National Association for the Advancement of Colored People, Inc.,
the Georgia State Conference of the NAACP, Lavelle Lemon, Marlon Reid,
Celeste Sims, Patricia Smith, and Coley Tyson in Support of Neither Party
Summary: This brief was filed by the NAACP and one of its state chapters along with
the plaintiffs in a pending Georgia redistricting lawsuit. The amici contend that
“invidious intent”—that is, an intent to minimize the voting strength of a group of
voters—is the key to a legal standard that will be flexible enough for courts to address
different forms of partisan gerrymandering. The Lawyers’ Committee for Civil Rights
Under Law and Bryan Cave LLP are co-counsel with the NAACP for this filing.

Brief of Governors Lawrence Joseph Hogan, Jr., Arnold A. Schwarzenegger,

Joseph Graham “Gray” Davis Jr., and John R. Kasich in Support of Appellants
Summary: This brief, filed on behalf of a group of prominent current and former state
governors, emphasizes that the normal political process cannot combat extreme
partisan gerrymanders and, as a result, legislators should not be given unbounded power
to draw electoral districts. The law firm Reed Smith LLP is counsel for the governors’
filing.

Brief of Common Cause in Support of Appellants

Summary: This brief, filed by Common Cause, describes how the gerrymandering of
Maryland’s congressional map violated the First Amendment’s ban on viewpoint
discrimination. The brief also highlights the factual findings and legal conclusions made
by the panel in Common Cause v. Rucho, Common Cause’s concurrent challenge to North
Carolina’s 2016 remedial congressional map. The law firms Bondurant, Mixson &
Elmore, LLP and Paterson Belknap Webb & Tyler LLP are co-counsel for Common
Cause’s filing.

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Brief of International Municipal Lawyers Association, National League of
Cities, U.S. Conference of Mayors, International City/County Management
Association, and the County of Santa Clara in Support of Appellants
Summary: This brief, filed on behalf of several organizations and entities representing
the interests of municipalities, explains how partisan gerrymandering undercuts the
political influence of cities and other localities by dividing them among multiple
electoral districts. Michael Parsons, Corey Roush, and the International Municipal
Lawyers Association are co-counsel for this brief.

Brief of Steven M. Shapiro in Support of Appellants

Summary: This brief, filed by one of the original plaintiffs in this case, contends that
Maryland’s gerrymander violates both the First Amendment and Article I, Section 2 of
the U.S. Constitution. The brief recommends that the Justices model their ruling in this
case after the Court’s racial-gerrymandering law. Professor Alan Morrison of the
George Washington University Law School is counsel for this brief.

Brief of Judicial Watch, Inc. and Allied Educational Foundation in Support of

Neither Party
Summary: This brief, filed by Judicial Watch, argues that plaintiffs bringing partisan-
gerrymandering claims should be required to demonstrate that the maps that they are
challenging have violated “traditional redistricting principles,” such as compactness,
contiguity, and respect for established political boundaries. The law firm of Wise Carter
Child & Caraway, P.A. is co-counsel with Judicial Watch on this filing.

Brief of the State of Wisconsin in Support of Appellees

Summary: This brief, filed by the State of Wisconsin Department of Justice, contends
that neither the standard advocated by the appellants in Benisek, nor the standard
endorsed by the appellees in Whitford offer the kind of “limited and precise” guidance
that the Supreme Court has demanded for partisan-gerrymandering claims.
Nonetheless, the brief asserts, the Benisek standard is superior in certain respects to the
Whitford standard. Wisconsin’s Solicitor General is counsel of record for this brief.

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Brief of the States of Michigan, Arkansas, Colorado, Georgia, Indiana,
Louisiana, Missouri, Ohio, Oklahoma, South Carolina, Texas, and Utah in
Support of Appellees
Summary: This brief, filed by a coalition of twelve states, contends that redistricting is
an intrinsically political process that courts cannot and should not regulate. To the
extent state legislatures engage in “undemocratic redistricting,” the brief continues, they
should be checked by Congress. Furthermore, the states contend, the First Amendment
supplies no standards for determining when redistricting has become excessively
partisan. Michigan’s Solicitor General is counsel of record for this filing.

Brief of the Freedom Partners Chamber of Commerce in Support of Appellees

Summary: This brief, filed by the Freedom Partners Chamber of Commerce, argues
that partisan gerrymandering does not impact any First Amendment interests and may
only be regulated by Congress. The amicus also asserts that the Supreme Court should
declare partisan-gerrymandering claims non-justiciable to spare courts from the time-
consuming and legitimacy-eroding responsibility of policing the redistricting process.
The law firm Gibson Dunn & Crutcher LLP is counsel for this brief.

Brief of Senator Joseph B. Scarnati III in Support of Appellees

Summary: This brief, filed by the President Pro-Tempore of the Pennsylvania State
Senate, principally argues that neither the lower court, nor the appellants have identified
any consequences of partisan gerrymandering that harm voters’ First Amendment
rights, and, therefore, the appellants lack standing for their claims. The law firms
Holtzman Vogel Josefiak Torchinsky PLLC and Blank Rome LLP are co-counsel for
Senator Scarnati’s filing.