Can you challenge a partisan gerrymandered map based on a First Amendment retaliation theory?1
This is a challenge by Republican voters to a single federal congressional district drawn by Democratic officials in Maryland. They are trying to convince the Supreme Court that the First Amendment retaliation challenge—that is, the Democrats are punishing Republican voters by giving them less representation by gerrymandering—is the best way to analyze partisan gerrymandering cases. This is, in some ways, a companion case to Gil v Witford that we discussed in Episode 34, Everything We know about Partisan Gerrymandering.
This case comes to the Supreme Court from a three-judge district court which held that in order to win on a partisan gerrymandering retaliation claim, Plaintiffs had to show that the gerrymandering actually changed the outcome of races in Maryland and the plaintiffs here didn’t.