Lead Opinion
MEMORANDUM
On May 31, 2017, Plaintiffs O. John Ben-isek, et al. (“Plaintiffs”) filed a Rule 65(a) Motion for a Preliminary Injunction and to Advance and Consolidate the Trial on the Merits or, in the Alternative, for Summary Judgment. (ECF No. 177.) The State responded on June 30, 2017, with a Cross-Motion for Summary Judgment. (ECF No. 186.) Both motions have been briefed. On June 28, 2017, this three-judge Court set in a hearing, on Plaintiffs’ preliminary injunction .motion. On its own motion, the Court directed the parties to also address whether further proceedings in this case should be stayed pending the Supreme Court’s decision in Gill v. Whitford, No. 16-1161, a political gerrymandering case set to be argued in the forthcoming Term. A hearing on both matters was held on July 14, 2017.
For the reasons explained below, the Court now DENIES Plaintiffs’ preliminary injunction motion and STAYS this case pending the outcome of Wkitford. As set forth in'Part II.B, Judge Bredar concludes that such action is necessary because the justiciability of political gerrymandering claims remains in doubt, but the Supreme Court will likely resolve or clarify this threshold jurisdictional matter in its Wkit-ford decision. As set forth in Part II.C, Judges Bredar and Russell conclude that Plaintiffs have not made an adequate preliminary showing that they will likely prevail on the causation element of their First Amendment retaliation claim. While the Court by no means excludes the possibility that Plaintiffs may ultimately prevail, Plaintiffs have not demonstrated that they are entitled to. the extraordinary (and, in this, case, extraordinarily consequential) remedy of preliminary injunctive relief. A stay pending.further guidance in Wkitford is appropriate at this-juncture.
As set forth in his dissenting opinion, Judge Niemeyer would grant Plaintiffs’ motion for preliminary injunctive relief.
I. Procedural History
A review of the recent history of this redistricting case may prove helpful. Following a remand from the1 Supreme Court oh a procedural issue, see Shapiro v. McManus (Shapiro I), — U.S. -,
On August 24, 2016, the Court denied the State’s motion to dismiss in a 2-1 decision, with Judge Bredar dissenting. See Shapiro v. McManus (Shapiro II),
When applying First Amendment jurisprudence to redistricting, we conclude that, to state a claim, the plaintiff must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution.... [T]o establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. ... Finally, the plaintiff must allege causation — that, absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.
When a plaintiff adequately alleges the three elements of intent, injury,-and causation ... he states a plausible claim that a redistricting map violates the First Amendment and Article I, § 2. Of course ... the State can still avoid liability by showing that its redistricting legislation was narrowly tailored to achieve a compelling government interest.
Id. at 596-97.
Following the Court’s decision at the pleading stage, the parties entered a contentious period of discovery, which resulted in voluminous procedural rulings that need not be reviewed here. At the conclusion of this discovery period, the parties filed their pending motions. (ECF Nos. 177,186.)
As explained more fully in Part II, the Court concludes that preliminary injunc-tive relief is inappropriate at this stage because Plaintiffs have not shown that they can likely prevail on each of the three elements of their First Amendment claim. Moreover, any further proceedings— whether in relation to the pending cross-motions for summary judgment or at a bench trial — -would be premature because the Supreme Court is poised to consider issues that go to the heart of Plaintiffs’ gerrymandering case. Until the Supreme Court speaks, prudence compels this Court to stay further proceedings.
II. Analysis
A. Standard of Decision
1. Preliminary Injunction
Plaintiffs seek preliminary in-junctive relief in the form of an order barring the State from enforcing the 2011 redistricting plan and requiring the State to implement a new map in advance of the 2018 midterm elections. To prevail on their motion for such relief, Plaintiffs must show (1) that they are likely to succeed on the merits of their political gerrymandering claim, (2) that they will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips
Rule 52(a)(2) of the Federal Rules of Civil Procedure providés that in “granting or refusing an interlocutory injunction, the court must ... state the findings and conclusions that support its action.” See Greenhill v. Clarke,
2. Stay of Proceedings
The Supreme Court has long recognized that the “power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co.,
In deciding whether to stay proceedings, a court should consider the likely impact of a stay on each party as well as the “judicial resources that would be saved by avoiding duplicative litigation if the case is in fact stayed.” Mitchell v. Lonza Walkersville, Inc., Civ. No. RDB-12-3787,
B. Justiciability
At the pleading stage in Shapiro II, the panel majority recognized “the justiciability of a claim challenging redistricting under the First Amendment and Article I, § 2, when it alleges intent, injury, and causation.”
However, this case has long since passed the pleading stage. Plaintiffs now seek preliminary injunctive relief in the form of an order that, if entered, would cause an unprecedented disruption in Maryland’s legislative and districting process. In granting such relief, the Court would enjoin enforcement of a map that was duly enacted by the General Assembly of Maryland, see Md. Code Ann., Elec. Law §§ 8-701 et seq., and that survived a voter referendum by a wide margin. The remedy would require emergency action by the legislature. The time and resources necessary to implement a new map would surely have the effect of scuttling other legislative priorities in advance of the 2018 session. The remedy would be highly consequential.
In the arena of legislative and congressional districting, unelected ' federal judges should exercise great caution before declaring unconstitutional the work product of the people’s elected representatives. Cf. Davis v. Bandemer,
The preliminary injunction mechanism under Rule 65(a) of the Federal Rules of Civil Procedure does , not authorize a federal court to grant such an extraordinary remedy haphazardly. Rather, the court must be confident, among other things, that the plaintiff has..shown it is likely to prevail on the merits of its claim. Winter,
In this case, an intervening development casts a cloud over the panel majority’s prior ruling as to the justiciability of Plaintiffs’ political gerrymandering claim. On June 19, 2017, the Supreme Court agreed to hear argument in Gill v. Whitford, No. 16-1161, a direct appeal from a decision by a three-judge panel that enjoined a Wisconsin legislative map as an unconstitutional political gerrymander. Argument is calendared for October 3, 2017. The decision below in Whitford v. Gill,
In a 5-4 order, the Supreme Court stayed the district court’s judgment pending disposition of the appeal. The Court declined to note, probable.jurisdiction, ordering instead that “[further consideration of the question of jurisdiction is postponed to the hearing, of the case on the merits.” Plaintiffs in this case brush aside the justiciability question in Whitford as the “last of the five questions presented” in that appeal (ECF No. 193 at 2), and the dissent makes no mention of Whitford. Yet the Supreme Court’s decision to hold .over the jurisdictional question for argument is a strong signal that the question remains unsettled in the minds of the Justices.
■ That should come as no surprise. The justiciability of political gerrymandering claims has plagued the Court for decades. As the panel majority observed in Shapiro II, six Justices acknowledged in Bandemer that such claims are theoretically justicia-ble,
Eighteen years later, the Court revisited the question in Vieth, where four Justices (Chief Justice Rehnquist and Justices Sca-lia,- O’Connor, and Thomas) would have held “that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.”
While the dissent in the instant case states that “five Justices in Vieth concluded that the [political gerrymandering] issue remained justiciable,” post, at 828, Justice Kennedy’s opinion was more guarded than that: it was so guarded, in that the plurality characterized it as a “reluctant fifth vote against justiciability at district and statewide levels — a vote that may change in some future case but that holds, for' the time being, that this matter is nonjusticiable.” Id. at 305,
The Supreme Court’s willingness to consider and reconsider the justiciability question is understandable, given how fundamental that question is to the exercise (and even the legitimacy) of federal judicial power. Justiciability is a threshold matter that courts are required to evaluate, sud sponte if necessary, before reaching the merits of a case. “Justiciability concerns ‘the power of the federal courts to entertain disputes, and ... the wisdom of their doing so.’ ” Republican Party of N.C. v. Martin,
Merely because the Supreme Court has agreed to hear argument in Whitford and has deferred the jurisdictional question, it does not necessarily follow that the Court will clear up the ambiguity next Term. The composition of the Court has changed dramatically since Vieth, as that case was decided before Chief Justice Roberts and Justices Alito, Sotomayor, Kagan, and Gorsuch took their seats. Nonetheless, it is conceivable that the Justices could again divide as the Court did in Vieth, with a majority declining to agree on a standard but with at least five votes for the proposition that some standard might yet exist. Or perhaps the Justices will endorse the standard recognized by the three-judge court in Whitford, or some other standard; or perhaps they will rule finally that federal courts may not adjudicate these types of political questions. It would be idle to speculate as to the outcome of a case that has yet to be heard.
But with due respect to the other members of this panel, it would be irresponsible to grant a drastic rémedy on the basis of a claim that the Supreme Court may invalidate in a matter of months. We know now that the Court is poised to consider the justiciability question. Guidance of some sort (maybe dispositive guidance) is forthcoming. Accordingly, to suggest that Plaintiffs are likely to prevail on the merits of their claim and to award injunctive relief on that basis would place the cart far ahead of the horse.
This is particularly so in light of a case to which neither party has devoted much attention and which, once again, the dissent does not mention. That case is Cooper v. Harris, — U.S. -,
*807 We have repeatedly acknowledged the problem of distinguishing between racial and political motivations in the redistricting context,... As we have acknowledged, “[pjolitics and political considerations are inseparable from dis-tricting and apportionment,” and it is well known that state legislative majorities very often attempt to gain an electoral advantage through that process. Partisan gerrymandering dates back to the founding, and while some might find it distasteful, “[o]ur prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering. ...”
Id. at 1488 (Alito, J., concurring in the judgment in part and dissenting in part) (citations omitted). Justice Alito stressed that the Court’s cases require “extraordinary caution” any time the state has “articulated a legitimate political explanation for its districting decision.” Id. at 1504 (internal quotation marks and citation omitted). He added that “if a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State’s elected representatives.” Id. at 1490 (emphasis added).
Justice Alito’s remarks are non-majority dicta in a case involving a different (though analogous) claim. These remarks should not be treated as proof that any member of the Supreme Court has prejudged the issues on appeal in Whitford. But see Crowe v. Bolduc,
Nothing about this discussion should be taken to suggest that Judge Bredar has decided, as a matter of law, that political gerrymandering claims are nonjusticiable. Indeed, two members of this panel have already decided that such claims are justi-ciable pursuant to the First Amendment framework that Justice Kennedy contemplated in Vieth, and the Supreme Court has not — to date — overruled Bandemer or held that partisan gerrymandering presents a nonjusticiable political question. Nor has the Court rejected Justice Kennedy’s First Amendment theory, though that theory remains nothing more (or less) than a “theory put forward by a Justice of th[e] Court and uncontradicted by the majority in any ... cases,” Shapiro I,
Because Plaintiffs ■ are unable at this time to demonstrate that they will likely prevail on the threshold question of justici-ability, and because the Supreme Court is poised to act and in so doing may change the legal landscape, Plaintiffs’ preliminary injunction motion should be denied and their case stayed pending the Supreme Court’s .decision in Whitford.
C. Causation
1. Preliminary Injunction
■ Apart from any doubts as to justici-ability, and assuming without deciding that Plaintiffs have adduced sufficient evidence to show that the State crafted the 2011 redistricting plan (and the Sixth District in particular) with the “specific intent to impose a burden” on Plaintiffs and similarly situated citizens through vote dilution, Shapiro II,
Trial testimony and other evidence, including thorough cross-examination, may yet establish that Plaintiffs have met their burden of proof with respect to causation, but the Court is not persuaded that they have done so now, at least not to the high standard set for the granting of preliminary injunctions. Since but-for causation is an element of Plaintiffs’ First Amendment claim, it follows that if Plaintiffs are unable to prove this element, their claim will collapse on its merits. At this stage, the Court cannot say that it is likely that Plaintiffs will prevail on this element — only that they might. For that reason, the Court must deny Plaintiffs’ request for the
a. Findings of Fact
Strictly for purposes of deciding whether to enter a preliminary injunction, the Court makes the following findings of fact, see Fed. R. Civ. P. 52(a)(2), corresponding to the causation element of Plaintiffs’ First Amendment claim:
1. Maryland’s 2011 redistricting process involved two parallel procedures: a public-facing procedure led by the Governor’s Redistricting Advisory Committee, and an internal procedure involving Maryland’s congressional delegation and a consulting firm called NCEC Services, Inc. (ECF No. 177-4 at 36:4-13; ECF No. 177-5 ¶ 18.)'
2. NCEC in turn designated analyst Erie Hawkins to review the State’s redistricting plan and prepare sample maps using voter demographic data (including party affiliation and voting history) and a computer program called “Maptitude for Redistricting.” (ECF No. 177-4 at 36:18-37:17.)
3. In performing his analysis, Hawkins relied on a proprietary metric called the Democratic Performance Indéx (DPI), a weighted average of candidate performance that takes account of voting history. (Id. at 24:5-19.) A higher DPI signals a greater statistical likelihood of Democratic candidate ■ success based on past performance.
4. Hawkins created between ten and twenty draft maps. He analyzed six maps alongside proposals submitted by third parties. Each of the six maps would have produced a federal DPI of 52% or greater for the Sixth District, while the third-party submissions would have produced much lower DPIs. (Id. at 38:2-9; ECF No. 177-34; ECF. No. 177-36 at 31-32.)
There is no evidence that Hawkins personally created the final map that was enacted into law. (ECF No! 177-1 at 13n.9; ECF No. 186-1 at 11.) Former governor Martin O’Malley testified that legislative director Joe Bryce, and staff from the Maryland Department of Planning likely created the .final document. (ECF No.. 177-3 at 53:12-64:7.)
The map as enacted had the effect of transferring 360,368 Marylan-ders out of the Sixth District and 360,179 Marylanders into the Sixth District. (ECF No. 177-19 at 12.) In the process, 66,417 registered Republicans ’were removed from the district and’ 24,460 registered Democrats were added to the district. (Id. at 6.)
After the 2011 plan was implemented, a plurality (44.8%) of voters in the Sixth District were registered Democrats, while 34.4% of voters weire registered Republicans. 20.8% of voters were registered with neither 'major political party. (ECF No. 186-19 at 6-6.)
The “Cook Partisan Voting Index” promulgated by the Cook Political Report formerly rated the Sixth District as a safe Republican seat. As a consequence of the 2011 redis-trieting, the Sixth District is now rated as a “likely” Democratic seat. (ECF No. 177-52 at 8.)
In the 2012 congressional election (the. first held in the. new Sixth District), democrat John Delaney defeated incumbent Republican congressman Rqscoe Bartlett by a 20.9% margin. (ECF No, 177-5 ¶ 54.) However, in the U.S. Senate*810 election conducted that same cycle, Democrat Ben Cardin carried the Sixth District by just 50% of the vote, despite winning 56% of the vote statewide. (ECF No. 186-19 at 10; ECF No. 186-42 PDF at 2.)
■ 10. Congressman Delaney won reelection in 2014 and 2016 by margins of 1.5% and 14.4%, respectively. (ECF No. 177-5 ¶¶ 55-56.)
11. While Plaintiffs have produced expert reports predicting, based on party affiliation and other demographic data, that Democratic candidates will likely fare better under the 2011 plan than under the former plan, Plaintiffs have conducted no statistical sampling and have adduced no individual voter data showing how displaced and current residents of the Sixth District actually voted in 2012, 2014, and 2016.
12. Plaintiffs have not surveyed voters to determine (1) whether former supporters of Congressman Bartlett who remained in the Sixth District after the 2011 redistricting voted for Congressman Delaney instead, (2) whether such voters switched party affiliation or simply selected a different candidate on an ad hoc basis, and (3) the reasons underlying these voters’ decisions. Nor have Plaintiffs amassed data concerning the voting behavior and preferences of former Sixth District residents who now reside in other congressional districts.
13. Congressman Bartlett underperformed the other seven members of Maryland’s congressional delegation in fundraising leading up to his defeat in the 2012 election. (ECF No. 104-13 at 2/2.)
14. In 2014, Republican challenger Dan Bongino nearly unseated Congressman Delaney even though Bongino resided outside the Sixth District (ECF No. 186-20 at 18:15-20) and operated at a financial disadvantage vis-a-vis Delaney (id. at 36:21-37:10). Also in 2014, Republican gubernatorial candidate Larry Hogan won 56% of the vote in the Sixth District, besting his Democratic rival by 14 percentage points. (ECF No. 186-19 at 10.)
b. Conclusions of Law
In denying Plaintiffs’ preliminary injunction motion, the Court reaches the following conclusions of law:
1. Under Winter v. NRDC, a plaintiff seeking preliminary injunctive relief must demonstrate that plaintiff is likely to prevail on the merits of its claim.555 U.S. at 20 ,129 S.Ct. 365 .
2. In Shapiro II, this Court held that, to state a claim for First Amendment retaliation via gerrymandering, Plaintiffs must allege not only that the gerrymander diluted votes of targeted citizens “to such a degree that it resulted in a tangible and concrete adverse effect” but also that “absent the mapmakers’ intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.”203 F.Supp.3d at 597 .
3. In other words, the First Amendment iramework that the Shapiro II majority endorsed requires proof that but for the gerrymander, ■ the challenged effect (here, the switch in political power in the Sixth District) would not have happened.
4. The dissent complains that “the majority’s new First Amendment standard depends on an election’s*811 results, not on the adverse impact of dilution on the targeted voters.” Post, at 837. In the dissent’s view, “the adverse effect is' the dilution of votes — and the corresponding burdening of expression by voters — regardless of how the election turned out.” Post, at 837. However, the Shapiro II majority recognized that “vote dilution is a matter of degree, and a de minimis amount of vote dilution, even if intentionally imposed, may not result in a sufficiently adverse effect on the exercise of First Amendment rights to constitute a cognizable injury.”203 F.Supp.3d at 596-97 . The dissent offers no yardstick to measure vote dilution that exceeds a “de minimis amount” yet falls short of altering electoral outcomes. Nor have Plaintiffs shown that they suffered any tangible First Amendment burden other than, perhaps, their inability to elect their preferred candidate. A political gerrymander that imposes nothing more than an abstract “burden” without actually affecting tangible voter rights or interests surely is not jus-ticiable, even pursuant to the framework two judges endorsed in Shapiro II.
5. The dissent frets that “under the majority’s new standard, no redistricting map could be challenged before an election.” Post, at 837. To whatever extent this critique is accurate, it is a consequence of adjudicating political gerrymandering claims according to the standard adopted in Shapiro II. There may be some other, as-yet unidentified standard that would enable courts to enjoin implementation of a map prior to the first election conducted thereunder, but neither Plaintiffs nor the dissent have proffered any such workable standard here. Strictly prospective relief is relatively uncommon in the law, and courts are far more likely to be tasked with curing or vindicating a prior harm than with anticipating and forestalling a potential one.
6. Citing a handful of First Amendment cases that do not deal with election law, the dissent proposes to import into the political gerrymandering context the burden-shifting framework of Mt. Healthy City School District Board of Education v. Doyle,429 U.S. 274 ,97 S.Ct. 568 ,50 L.Ed.2d 471 (1977). Post, at 834-36. The Court declines to do so, at least at this preliminary stage. As the dissent explains, Mt. Healthy stands for the proposition that “where the government takes ' an injurious action, an injured party need not show that the government would never have taken the same action anyway.” Post, at 835-36. Mt. Healthy assumes an injury has occurred and focuses on questions of motive and intent. The problem is that in the redistrieting context, the government’s “action” is only “injurious” if it actually alters the outcome of an election (or otherwise works some tangible, measurable harm on the electorate). In other words, the question of but-for causation is closely linked to the very existence of an injury: if an election result is not engineered through a gerrymander but is instead the result of neutral forces and voter choice, then no injury has occurred.
7. For this reason, the dissent’s poisoning hypothetical, post, at 837-38, is beside the point. If a victim sips poison, or trains collide, or an em*812 ployee is fired, or a homeowner’s request for a zoning variance is denied, there is no question that an injury of one sort or another has occurred. The question for courts to resolve in such cases is whether that, injury was caused by some illicit action (or inaction) of the defendant and whether the defendant has an adequate defense to the charge. But if Roscoe Bartlett loses to John Delaney, voters are thereby injured if but only if .that loss is attributable to gerrymandering or some other constitutionally suspect activity. If the loss is instead a consequence of voter choice, that is not an injury. It is democracy.
8. But-for causation — not some metaphysical, could-be burden — is the standard that controls in this case, and Plaintiffs bear the burden to prove this element is satisfied. Assuming that Maryland’s former congressional map. provides an acceptable benchmark for assessing the 2011 map, this but-for causation requirement would be satisfied , only if Roscoe Bartlett would have won reelection in 2012 had the pri- or map remained intact (with minor adjustments to account for demographic changes reflected by the 2010 Census). Plaintiffs admit as much: “[0]ur burden is to show that the purposeful dilution of Republican votes in the Sixth District was a but-for cause of the routing of Roscoe Bartlett in 2012 and of the- Republican losses in 2014 and 2016.” (EOF No. 191 at 13.)6
9. The fact that John Delaney defeated Roscoe Bartlett by an impres-' sive 20:9% margin in 2012 may shed some light on the effectiveness of the alleged gerrymander. However, even a much smaller victory by Delaney would have shifted the Sixth District seat from Republican to Democratic control. The dispositive question is whether the shift would have occurred absent the alleged gerrymander — that is, whether Delaney would have prevailed (even if by a much smaller margin) absent the State’s reliance on NCEC’s DPI and demographic data.
10. Upon the record, the briefs, and the hearing, the Court cannot now conclude that the likely outcome of this litigation is a finding that, but for the alleged gerrymander, the Republican Party would have retained control of the Sixth District congressional seat. Plaintiffs have riot produced voter sampling or statistical data, affidavits, or other evidence of a sufficient quantity to demonstrate how and why voters • who would have been included in a neutrally drafted Sixth District vot*813 ed in the 2012, 2014, and 2016 elections. Without such data, the Court cannot reverse-engineer those elections and is unprepared to assume, at this preliminary stage, that enough such voters would, have voted for the Republican candidate so as to preserve Republican control.
11. While Plaintiffs have adduced some persuasive predictive evidence through the Cook Partisan Voting Index and expert reports and testimony, the Court is unconvinced, certainly by the standard governing the issuance of a preliminary injunction, that such evidence is determinative of but-for . causation. In particular, the Court is not convinced that such predictive evidence accurately accounts for subjective factors such as evolving political temperament and the personal strengths or weaknesses of individual candidates. The surprising results ■ of various elections in 2016 illustrate the limitations of even the most sophisticated predictive measures! Experience teaches that voter preferences are mutable and that American democracy is characterized by a degree of volatility and unpredictability. See Bandemer,478 U.S. at 160 ,106 S.Ct. 2797 (O’Connor, J., concurring in the judgment) (“To allow district courts to strike down apportionment plans on the basis of their prognostications as to the outcome of future elections or future appor-tionments invites ‘findings’, on matters as to which neither judges nor anyone else can have any confidence.”).
12, The Court is especially reluctant at this preliminary stage, absent more concrete voter data, to find an effective gerrymander given that Congressman Delaney nearly lost control of his seat .in 2014 in a race against a candidate burdened with undisputed geographic and financial limitations.
.13. Indeed, this recent near defeat raises serious doubts about whether Plaintiffs’ alleged injury is likely to recur. The most relevant question in. a case involving a claim for solely injunctive relief is not whether a harm may have occurred in the past but whether the harm is presently occurring or very likely to recur. If the injury, if any, has long since, concluded, there is nothing to enjoin. See Bloodgood v. Garraghty,783 F.2d 470 , 475 (4th Cir. 1986) (“An injunction is a drastic remedy and will not issue unless there is an imminent threat of illegal action. ‘[An injunction issues to prevent existing or. presently threatened injuries. One will not be granted against something merely feared as liable to occur at some indefinite time in the future.’ ” (quoting Connecticut v. Massachusetts,282 U.S. 660 , 674,51 S.Ct. 286 ,75 L.Ed. 602 (1931))); cf. Beck v. McDonald,848 F.3d 262 , 277 (4th Cir. 2017) (‘“[AJbsent a sufficient likelihood that [Plaintiffs] will again be wronged in a similar way’ ... past events, disconcerting as they may be, are not sufficient to confer standing to seek injunctive relief.” (alteration in’ original) (citations omitted)); Bryant v. Cheney,924 F.2d 525 , 529 (4th Cir. 1991) (“The courts should be especially mindful of th[e]-limited role [prescribed by Article III] when they are asked to award prospective equitable relief ... for a concrete past harm, and a plaintiffs past injury does not necessarily confer*814 standing upon him to enjoin the possibility of future injuries.”).
14. Despite the Court’s present doubt as to Plaintiffs’ proof on the causation prong of their First Amendment claim, the Court does not hold that Plaintiffs cannot prevail on their claim. Any such holding would be every bit as premature as the extraordinary relief that Plaintiffs have requested and that the dissent urges. The Court simply concludes that Plaintiffs have not carried their burden to show they are likely to prevail on the merits, and so preliminary injunctive relief is not proper.
15. The Court remains open to the possibility that the evidence Plaintiffs have adduced, when subject to robust cross-examination and the development that only a trial can bring, may satisfy Plaintiffs’ burden of proof. The Court also is willing to entertain requests by either party to reopen discovery (subject to the stay discussed immediately below) to address the ev-identiary gaps and deficits or potential deficits flagged in this Memorandum. Regardless whether either party seeks additional discovery, the parties may find it helpful to take account of the Court’s discussion here in any future briefs or oral presentations.
2. Stay of Proceedings
The Court’s concerns about Plaintiffs’ proof with respect to the causation element of their First Amendment claim compel the Court not only to deny preliminary injunctive relief but also to stay proceedings pending the Supreme Court’s further guidance in Whitford.
While Plaintiffs argue vociferously that “[t]his case and the Wisconsin case are fundamentally different” (ECF No. 193 at 4), this Court disagrees. Fundamentally, these cases are two sides of the same coin: both propose a standard by which federal courts might adjudicate claims of unlawful political gerrymandering. Both cases invoke the First Amendment as a source of constitutional authority. And the standard that the Western District of Wisconsin has endorsed is remarkably similar to the standard endorsed by the majority in Shapiro II: “We conclude,” the Wisconsin court wrote, “that the First Amendment and the Equal Protection clause prohibit a redistricting scheme which (1) is intended to place a severe impediment on the effectiveness of the votes of individual citizens on the basis of their political affiliation, (2) has that effect, and (3) cannot be justified on other, legitimate legislative grounds.” Whitford,
True, the cases differ in their particulars. The Wisconsin case is a statewide challenge to state legislative districts, based in part on partisan asymmetry (the so-called “efficiency gap”); the Maryland case is a single-district challenge to a congressional district, grounded in a retaliation theory. For plaintiffs in either case to prevail, however, they would have to show that the gerrymander about which they complain actually inflicted a constitutional injury on them, one that is sufficiently personal so as to satisfy the threshold requirements of Article III and sufficiently definite and clear so as to justify the drastic remedy of an injunction against enforcement of an otherwise lawfully enacted map. In determining whether a constitutional injury has occurred, the court invariably must reach the question of causation, for if election outcomes (whether in a single district or across the state) arise not from political machinations at the statehouse but instead from neutral forces or the “natural ebb and flow of politics,” Shapiro II,
D. Additional Practical Considerations Supporting the Decision to Stay Proceedings
Two practical considerations bolster the Court’s conclusion that a stay is appropriate at this time.
First: this Court is in no position to award Plaintiffs the remedy they have requested on the timetable they have demanded. For the reasons explained in Part II.C, two members of this panel are unconvinced that Plaintiffs will likely prevail on the causation element of their First Amendment claim. Plaintiffs therefore are not entitled to preliminary injunctive relief. This case will likely require a full trial on the merits, where witnesses for both parties will be subject to cross-examination and where the Court will be equipped to make detailed findings and credibility determinations. But a trial — particularly one requiring the coordination of three judges and their respective chambers staff — is a substantial undertaking.
Plaintiffs have indicated that a revised districting plan must be enacted no later than December 19, 2017, to allow orderly implementation in advance of the 2018 midterms. (ECF No. 177-1 at 31.) Plaintiffs also have suggested that an injunction should issue no later than August 18, 2017, to accommodate legislative mapmaking or, if necessary, a judicially imposed map. {Id. at 32.) Despite the Court’s diligence in ruling on the pending preliminary injunction motion (which has been a priority for each member of this panel), that August date has already come and gone. Since the Court cannot deliver the remedy Plaintiffs have requested, Plaintiffs’ opposition to a stay pending Whitford loses considerable force. It is unclear what hardship Plaintiffs will suffer by waiting a few months if, as a practical matter, the Court would have been unable to cure any constitutional ill in advance of the 2018 midterms even had it scheduled a trial at the earliest opportunity.
Second: while the Supreme Court no doubt benefits from the efforts of lower courts in resolving difficult legal issues, it is not clear how additional proceedings in this ease would aid the Court’s resolution of Whitford. The threshold justiciability question that the Court must again confront in Whitford is hardly a novel one, and this panel has rigorously analyzed that threshold question in the separate opinions in Shapiro II. The Whitford litigants and the Justices will have access to those opinions during the forthcoming proceedings. Further, as the divergent opinions in Vieth illustrate, the Justices are not bound to
Here is the bottom line: a stay in these proceedings will not preclude the Supreme Court from taking advantage of the important legal work that has been done in this case, and the marginal gains — if any — that further fact-finding might offer the Justices would be greatly outweighed by the efficiency costs of charging ahead only to later learn that Plaintiffs must return to square one (or, perhaps, that their action is no longer viable).
III. Conclusion
Though the members of this panel differ in their views concerning the implications of Supreme Court precedent, the evidence Plaintiffs have thus far adduced, and the efficient management of this complicated and important case, all agree that political gerrymandering is a noxious and destructive practice. The segregation of voters by political affiliation so as to achieve purely partisan ends is repugnant to representative democracy. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, — U.S. -,
For the foregoing reasons, an Order shall enter DENYING Plaintiffs’ preliminary injunction motion, and a separate Order shall enter HOLDING IN ABEYANCE the pending cross-motions for summary judgment and STAYING further proceedings pending the Supreme Court’s decision in Whitford.
Judge Russell joins all but Part II.B of this Memorandum and joins the accompanying Orders. Judge Niemeyer joins neither the Memorandum nor the Orders,
Notes
. In a pre-hearing scheduling order, the Court made clear that the only matters it would take up at the July 14 hearing were Plaintiffs’ motion for preliminary injunctive relief and the Court’s sua sponte request for argument on the propriety of a stay. (ECF No. 190.) The Court did not then, and does not now, rule on the pending cross-motions for summary judgment. 'Nor; has the Court advanced the trial on the merits under Rule 65(a)(2). ■:
. Judge Bredar disagreed that Plaintiffs had identified a workable standard because (1) "the Supreme Court has expressed some degree of tolerance for partisanship in the dis-tricting context, but that tolerance creates intractable line-drawing problems”; and (2) courts are ill-equipped to "ascertain those unusual circumstances in which redistricting inflicts an actual, measurable burden on voters' representational rights,” yet that is "precisely what the Supreme Court has required.” Shapiro II,
. The Whitford. panel addressed the remedy separately in an unpublished opinion, see Whitford v. Gill, No. 15-cv-421-bbc,
. In League of United Latin American Citizens (LULAC) v. Perry,
. The dissent seems to suggest that political gerrymandering claims must be justiciable lest "unacceptable results” bbtain, such as a "pointillistic” map that assigns voters to various districts "regardless of their geographical location.” Post, at 818 (emphasis omitted). This case, of course, does not involve any such extreme practices. Whatever else might be said, Maryland’s congressional districts generally adhere to traditional districting principles such as contiguity and the preservation of communities of interest. Should a state legislature ever attempt to implement a pointillistic map, a reviewing court could simply establish a bright line rule requiring some degree of contiguity on the theory that pointillism subverts the framers’ intentions as expressed in Article I, § 2. A rule barring pointillism would be easy to administer, would not require courts to predict voter behavior, and would not present the thorny line-drawing problems at issue in the typical political gerrymandering case. Pointillism would be the proverbial "easy case” in this context, and the Court would be fortunate indeed to be con
. But see Shapiro II,
. Plaintiffs alternatively propose that the Court should enter a permanent injunction and then stay enforcement of that injunction so that the parties may expeditiously take their appeal. (ECF No. 193 at 3.) The Court declines to do so. The Court will not abandon its duty to conscientiously resolve this years-long dispute so that the parties may squeeze their case onto the Supreme Court's fall calendar. Nor will the Court make the findings that would support a permanent injunction— including that Plaintiffs have suffered an irreparable injury and that, "considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted,” eBay Inc. v. MercExchange, L.L.C.,
Dissenting Opinion
dissenting:
In denying the plaintiffs’ motion for a preliminary injunction, the majority overlooks the obvious and relies on abstract notions of the causal relationship between intent and effect that bear no relationship to th'e real world evidence regarding the conduct at issue or to the First Amendment standard adopted in this case. Its entire reason for denying the injunction rests on a bizarre notion of causation that requires the exclusion of all possible alternative explanations, however remote and speculative. When that effort inevitably fails, it concludes that causation has not been established, despite extraordinarily strong evidence of the connection between intent and effect. I believe that the record could not be clearer that the mapmakers specifically intended to dilute the effectiveness of Republican voters in the Sixth Congressional District and that the actual dilution that they accomplished was caused by their intent. Accordingly,' the motion should be granted.
The record demonstrates, without any serious contrary evidence, that the Maryland Democrats who were responsible for redrawing, congressional districts in 2011
Consistent with this evidence, the State’s Democratic leadership stated that their reshuffling of voters by voting history was specifically intended to flip the Sixth District from Republican to Democratic so as to create a 7 to 1 Democratic congressional delegation. For example, Maryland Governor Martin O’Malley, who led the effort to develop a new congressional map after the 2010 census, stated that he wanted to redraw the lines of the Sixth District to “put more Democrats and' Independents into the Sixth District” and ensure “the election of another Democrat.” He added, “Yes, this was clearly my intent.” And other Democrats involved, in the process similarly revealed their intent with statements indicating, for example, that the Sixth District was redrawn to “minimize the voice of the Republicans” and to “hit[]” Republican Congressman Roscoe Bartlett from the Sixth District “pretty hard.” Moreover, the firm hired to draw the map was given only two instructions— to come up with a map (1) that protected the six incumbent Democrats and (2) that would produce a 7 to 1 congressional delegation.
Republican voters affected by the redrawing of the Sixth District commenced this action, contending that they were targeted, based on.the way they voted in the past, with the intent to dilute their vote and diminish .their, representational rights, in violation of the First Amendment. On the State’s- motion to dismiss the complaint under Federal Rule of ! Civil Procedure 12(b)(6), we held that the plaintiffs stated a cause of action and would succeed in their challenge of the Sixth District’s gerrymander if they were to demonstrate (1) that the mapdrawers redrew the district lines with the specific intent to impose a burden on voters because of how they voted in the past or because of the political party with which they were affiliated; (2) that- the targeted voters suffered a tangible, concrete burden on their ■ representational rights; and (3) that the mapdrawers’ intent to burden a particular group of voters by reason of their views was the but-for cause of the concrete effect. Simply, the standard requires a Showing of (1) specific intent, (2) concrete effect, and (3) causation between the first two requirements. See Shapiro v. McManus,
Following the completion of extensive discovery, the plaintiffs filed a motion for a preliminary injunction - with a request to advance the trial on the merits under Rule 65(a)(2) so as to obtain a final injunction ordering a redrawing of the lines defining the Sixth District without the use of data
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The widespread nature of gerrymandering in modern politics is matched by the almost universal absence of those who will defend its negative effect on our democracy. Indeed, both Democrats and Republicans have decried it when wielded by their opponents but nonetheless continue to gerrymander in their own self interest when given the opportunity. The problem is cancerous, undermining the fundamental tenets of our form of democracy. Indeed, as Judge Bredar has observed in this case, gerrymandering is a “noxious” practice with “no place in a representative democracy.” Shapiro,
The Supreme Court has joined the chorus of voices recognizing the potential ills inflicted on our democracy by gerrymandering. Accepting the general proposition that partisan gerrymandering, when sufficiently extreme, violates the Constitution, the Justices have nonetheless yet to agree on a standard for determining when the practice crosses the line. See Vieth v. Jubelirer,
But a categorical rule that would abandon efforts at judicial review surely cannot be accepted lest it lead to unacceptable results. For instance, in Maryland, which has a voting population that historically votes roughly 60% for Democrats and 40% for Republicans, the Democrats, as the controlling party, could theoretically create eight safe Democratic congressional districts by assigning to each district six Democrats for every four Republicans, regardless of their geographical location. Citizens residing in Baltimore City, others residing in Garrett County in the western portion of the state, and yet others residing in the suburbs of Washington, D.C., could all be assigned to a single district so that the Democrats would outnumber Republicans by a margin of 60% to 40%. Under such a map, no district would have a single boundary, nor indeed any relationship to geography or to the communities that constitute the State, and neighbors would have different Representatives. Such a pointillistic map would, of course, be an absurd warping of the concept of representation, resulting in the very “tyranny of the majority” feared by the Founders. Yet, such an extreme possibility would be open to the most politically ambitious were courts categorically to abandon all judicial review of political gerrymandering.
I believe that the First Amendment standard previously adopted by us in this case does not allow for such a possibility. Building on the Supreme Court’s previous holdings that ensure “one person, one vote” and that prevent racially motivated gerrymanders, we held earlier in this case that when district mapdrawers target voters based on their prior, constitutionally protected expression in voting and dilute their votes, the conduct violates the First Amendment, effectively punishing voters for the content of their voting practices. See Shapiro,
The majority instead expresses doubts as to whether the earthquake upheaval in the political landscape of the Sixth District was attributable to the fulfillment of the Democrats’ gerrymandering plan, positing that the flip of the Sixth District might have been attributable to changes in voting preferences or other demographics. But this view reflects nothing more than an effort to skirt around the obvious — that-the Democrats set out to flip the Sixth District; that they made massive shifts in voter population based on registration and voting records to accomplish their goal; and that they succeeded.
The plaintiffs have not only made the requisite showing that they are likely to succeed on the merits, they have actually succeeded well in demonstrating that the State’s gerrymandering violated their First Amendment- rights. I would accordingly issue the injunction requested and require the redrawing of the Sixth District’s boundaries without the use of information about how citizens voted in the past.
I
A. Facts of Record
The historical facts of record are not disputed. Following the 2010 census, the State of Maryland was required to redraw the lines of its eight congressional districts to ensure that each district had an equal share of the State’s population. This action focuses on the boundaries that the State chose to draw for the Sixth District.
Historically, the Sixth District included western Maryland and much of north-central Maryland, and after the Supreme Court’s announcement of the “one person, one vote” rule in Wesberry v. Sanders,
At the time of the 2,010 congressional election — the last held prior to the 2011 redistricting — 47% of the District’s 446,000 eligible voters were registered Republicans, 36% were registered Democrats, and 16% were registered Unaffiliated, making the District the most Republican in the State. Joint Stipulations ¶ 10 & Éx. 2 at 2 (EOF No, 104). Representative Roscoe Bartlett, a Republican, had continuously represented the District since 1993, and he won reelection in 2010 by a margin .of 28%, 7⅛¶8.'
The 2010 census showed that the Sixth District had grown somewhat, having 10,-186 residents more than the ideal adjusted population of 721,629 for a Maryland congressional district, a variation of only 1.4%. Joint Stipulations ¶¶ 9, 52. Nonetheless, the Democratic mapdrawers responsible for the 2011 redistricting plan redrew the District’s boundaries far more dramatically than was necessary to moVe 10,186 voters from the District. Indeed, the new Sixth District retained only 51% of its original population, retaining the residents of Garrett,' Allegany, Washington Counties, and a portion of the residents of Frederick County'and moved the other half — roughly 360,000 resideiits — to other districts. Approximately 60% of these residents — those from Frederick County and more than half the population of Carroll County — were shifted into the Eighth District, which had previously been confined almost entirely to the heavily Democratic Montgomery County. In the place of the removed residents, the plan added to the new Sixth District approximately 350,000 residents from Montgomery County, most of whom had previously been assigned to the Eighth District. The final 2011 map for the Sixth District was as follows:
The area removed from the former Sixth District was predominately Republican, while the area added was predominately Democratic. Specifically, in the precincts removed from the Sixth District, there were on average approximately 1.5 times as many registered Republicans as Democrats. By contrast, in the precincts added to Sixth District, registered Democrats outnumbered Republicans by more than 2 to 1. In total, the reshuffling of the Sixth District’s boundaries resulted in a net reduction of more than 66,000 registered Republicans and a net increase of some 24,-000 registered Democrats, for a swing of about 90,000 voters. See Opening Expert Report of Dr. Peter A. Morrison ¶ 134 & tbl. 1 (EOF No. 177-35); Opening Expert Report of Prof. Michael P. McDonald at 12 (EOF No. 177-19).
Not surprisingly, this major reshuffling of the Sixth District’s population directly affected the District’s political'complexion. At the time of the 2012 congressional election (the first held under the new map), the major parties’ respective shares of the District’s registered voters roughly reversed compared to just two years before. Of the new District’s roughly 437,000 eligible voters, 33% were registered Republicans, 44% were registered Democrats, and 22% were registered as Unaffiliated. Joint Stipulations ¶53 & Ex. 19. In the 2012 election, Democratic candidate John Delaney, a newcomer to politics, defeated Republican incumbent Bartlett by a 21% margin, and he was elected again in 2014 and 2016. Id. ¶ 54. •
The parties have stipulated that “[o]ne widely understood consequence of the Plan was that it would make it more likely that a Democrat rather than a Republican would be elected as representative from the [Sixth] District.” Joint Stipulations ¶ 31. But the record demonstrates even more. Far from being an incidental, though anticipated,' byproduct of achieving some other set of redistricting goals, the Maryland Democrats who controlled the 2011 redistricting process sought to assure themselves of a 7 to 1 Democratic delegation by flipping the Sixth District to Democratic control..
[TJhose of us in leadership positions in our party, the Speaker, the Senate President, the Democratic Dean of the Delegation, myself, Lieutenant Governor, we all understood that, while our — while we must fulfill our responsibility on redistricting, must be mindful of constitutional guidelines, restrictions, case law, statutes, it was also — part of our intent was to create a map that was more favorable for Democrats over the next ten years and not less favorable to them. Yes, that was clearly one of our many [goals].
Id. at 81:1-11. Specifically, O’Malley wanted to use the redistricting process to change the overall composition of the U.S. House Delegation to seven Democrats and one Republican by flipping either the First District, on the eastern shore of Maryland, or the Sixth District, in Western Maryland. Id. at 22-27, Because altering the political makeup of the First District, the only other Maryland district represented by a Republican, would have required awkwardly “jumpflng] the Chesapeake Bay and draw[ing] a line in such a way that [would] put[ ] ... more Democratic voters [in] the Eastern Shore [district],” id. at 24:16-19, he stated that “a decision was made to go for the Sixth,” id. at 27:3-4.
Following the customary process in Maryland, Governor O’Malley pursued two courses for developing a revised congressional map. For one, he created the public-facing “Governor’s Redistricting Advisory Committee,” and for the other, he “asked Congressman [Steny] Hoyer, ... the dean of the [U.S.] House delegation,” to “lead the effort ... to inform the [Committee] about congressional redistricting” and “come up with a map that a majority of the congressional delegation supports.” O’Mal-ley Dep. 47:20-48:5; see also Willis Dep. 185-88 (ECF No. 177-14) (agreeing that, historically, “[t]he process starts with the [Democratic] members of Congress,” who “[e]ndeavor to come to a consensus,” “and then it flows to the governor and legislators,” who “do their best to respect the wishes ... of the congressional delegation”). Consistent with this customary procedure, the record shows that the work performed on behalf of the Democratic members of Maryland’s congressional delegation largely shaped the contours of the new Sixth District that the Advisory Committee ultimately recommended to Governor O’Malley. See Miller Dep. 97:19 (ECF No. 177-15) (testifying that the map “primarily was drawn by the congressional people”).
The Advisory Committee held public hearings across the State from July through September 2011' and received comments from members of the public. Joint Stipulations ¶ 22. At hearings conducted in western Maryland, residents provided suggestions regarding potential changes to the shape of the Sixth District. Several of these residents testified about various connections between Frederick County and Montgomery County — including Interstate 270 (“1-270”), a 35-mile highway running between the City of Frederick and southern Montgomery County — and advocated for replacing part of the Sixth District with territory from Montgomery County. None of the speakers contemplated a map that would remove much of Frederick County itself, which had been included in its entirety in the Sixth District since 1872. See, e.g., Public Healing Testimony (ECF No. 186-3) at MCM 000029-31 (“[T]he start of the Sixth District is pretty easy, with Garrett, Alle-gany, Washington, and Frederick, you’ve
While the Advisory Committee was' holding public hearings across the State, the Democratic members of Maryland’s U.S. House Delegation — led by Representative Hoyer, a self-described “serial gerrymanderer,” ECF No. 191-3 — had already begun to redraw the State’s congressional map. Indeed, around the time that the results of the 2010 census became available in late February/early March 2011 — months before the Advisory Committee was even created — Hoyer and the other Maryland Democrats in the House retained NCEC Services, Inc., a political’ consulting firm that provides “electoral analysis, campaign strategy, political targeting, and GIS [geographic information system] services” to Democratic organizations. ECF No. 177-17; see also Hawkins Dep. 28-31 (ECF No. 177-4); ECF No. 177-18. NCEC was specifically charged with drawing a map that maximized “incumbent protection” for Democrats and changed the congressional' delegation from 6 Democrats and 2 Republicans to 7 Democrats and 1 Republican, and it was given no other instruction as how to draw the map. Hawkins Dep. 40-42, 47-49.
The primary NCEC analyst assigned to the task, Eric Hawkins, analyzed various congressional redistricting plans to inform the Democratic members of the Maryland delegation how “different options would change their districts,” and he personally prepared between 10 and 20 different draft congressional maps using a GIS computer software program called Maptitude for Redistricting. Hawkins Dep. 36-38. Maptitude allows users to “[cjreate districts using any level of geography,” “[a]dd political data and election results,” and “[ujpdate historic results to-new political boundaries.” Joint Stipulations ¶28. With Maptitude, “data reflecting ... citizens’ political party affiliation and voting histo-ríese] can be used to determine how the outcome of historical elections would have changed ... if the proposed plan had been in place in prior years,” id. ¶ 30, thus enabling users to accurately predict the likely outcome of future elections.
Hawkins specifically used a proprietary metric created by NCEC called the Democratic Performance Index (the “DPI”), which indicates how a generic Democratic candidate would likely perform in a particular district. As Hawkins explained, the DPI “is an average of how statewide candidates perform over time in competitive elections” that is “weighted differently for different election years,” and which “take[s] into account past voting history in a state or a district.” Hawkins Dep. 24:12-18. NCEC also calculated separate versions of the DPI specific to federal and state races — with the federal DPI “only us[ing] federal races” and the state DPI “only us[ing] state races” — to better account for “ticket splitting.” Id. at 25.
Hawkins used the DPI to meet the dual “goals” given to NCEC — namely, to draw a map that would maximize “incumbent protection” for the Democrats currently representing Maryland districts in Congress and that would “chang[e] the makeup of Maryland’s U.S. House delegation from six Democrats and two Republicans to seven Democrats and one Republican.” Hawkins Dep. 40-42; see also id. at 47-49. With respect to this 7 to 1 goal, Hawkins’ efforts focused on redrawing the Sixth District’s lines to increase its federal DPI, which Hawkins calculated under the preexisting map as standing at 37.4%, indicating
Maps were also proposed by third-party entities, but those maps resulted in a far smaller federal DPI for the Sixth District. For example, a map proposed by the Maryland Legislative Black Caucus would have resulted in a federal DPI of 39% for the Sixth District, ECF No. 177-34, a proposal a senior congressional staffer worried would be “a recipe for 5-3, not 7-1,” ECF No, 177-36. Needless to say, these proposals did nót influence the maps submitted by Hawkins to the Democratic House Delegation.
Ultimately, Maryland’s Democratic members of the U.S. House Delegation proposed and forwarded to the state Democratic leadership at least two maps prepared by Hawkins, The shape of the Sixth District in one of these maps, which had a DPI of 51.36%, was very similar to the plan that was ultimately adopted. See Deck of - Dr. Michael McDonald at 4 & fig. 5 (ECF No. 191-5).
After Maryland’s U.S. House Democrats submitted their proposals, further work was done by a group of senior staffers of O’Malley, Maryland Senate President Thomas Miller, and - Maryland ■ House Speaker Michael Busch. These senior staffers were equipped with a laptop loaded with the Maptitude software;, “party registration data and voter turnout data,” including at the census block level,- the smallest geographic unit used by the U.S. Cénsus Bureau; and a “data file[] that contained Democratic Performance Index information at the precinct level,” the smallest geographic unit in Maryland (averaging around 3,000 people) at which election results are reported. Weissman Decl, ¶¶ 3-5 (ECF No. 186-11). These state Democratic officials thus continued to use the DPI — as well as other .information about how local groups of citizens had previously voted and the political party with which they were affiliated — to finalize a map for the Advisory Committee.
The Advisory Committee publicly released a proposed congressional redistricting map on October 4, 2011, with the Committee’s lone Republican casting' the sole dissenting vote against the plan. Joint Stipulations ¶32, The Committee’s map had a federal DPI of 53% in the Sixth District, which was greeted as “good news” by the man who was widely expected to be the Democratic nominee to represent the newly redrawn Sixth District in the upcoming 2012 election. ECF No, 177-25.
Members and staff of the Advisory Committee briefed a joint session of the state House and Senate Democratic Caucuses about their recommended congressional plan on October 3, 2011. Joint Stipulations ¶35, Talking points prepared for Senate President Miller’s- introductory remarks encouraged him to emphasize that “[e]ven though the map isn’t pretty, it accomplishes a few important goals," including “creating] an opportunity for Montgomery County to control two congressional districts”; “preserving] all six incumbent Democrats in ‘safe’ districts,” none of which would have “less than 58% Democratic performance”; and “giv[ing] Democrats a real opportunity to pick up a seventh seat in the delegation by targeting
Following Senate President Miller’s remarks, Chairwoman Jeanne Hitchcock delivered a PowerPoint presentation that stated that the Sixth and Eighth Districts had been “[cjonfigured to reflect the North-South connections between Montgomery County, the 1-270 Corridor, and western portions of the State.” Joint Stipulations, Ex. 6. The record suggests that those in attendance were skeptical that the 1-270 corridor justified dramatically redrawing both the Sixth and the Eighth Districts. For example, immediately after Hitchcock’s presentation, Democratic Delegate Curt Anderson told a reporter, “It reminded me of a weather woman standing in front of the map saying, ‘Here comes a cold front,’ and in this case the cold front is going to be hitting Roscoe Bartlett pretty hard.” Joint Stipulations ¶ 46 & Ex. 13. And, while listening to Hitchcock give a similar presentation earlier in the day, one senior congressional aide who had been intimately involved in. the redistricting process wrote to another, “This is painful to watch.... I’m not sure I buy the themes they are selling. Hopefully they have some better ones for the public face of it.” ECF No. 177-58.
On October 15, 2011, Governor O’Malley announced that he was submitting -a map to the General Assembly “that was ... substantially the same as” the Advisory Committee’s proposal, Joint Stipulations ¶33, and two days later, on October 17, Senate President Miller introducéd the Governor’s proposed redistricting map as Senate Bill 1 at a special legislative session. With only minor technical amendments, Senate Bill 1 was signed into law on October 20, 2011, three days after it had been introduced. Id. ¶ 34; see Md. Code Ann., Elec. Law §§ 8-701 to -709.
“No Republican Senator or, Delegate voted for Senate Bill 1 in committee or on the floor in recorded roll call votes.” Joint Stipulations ¶ 36. Moreover, while the legislation was progressing rapidly through the General Assembly, numerous legislators made comments reflecting their clear understanding that the massive redrawing of .the Sixth District was designed primarily to give the eventual Democratic nominee a distinct electoral advantage over the Republican nominee. For example, one Delegate bluntly stated in a floor speech that he supported the map because it meant “more Democrats in the House of Representatives.” Id. ¶44. Another Delegate stated in an October 17 interview that, “What we’re doing is we are trying to get more, in terms of — -currently we have two Republican districts and six Democratic Congressional districts and we’re going to try to move that down to seven and one, with the additional Congressional district coming more out of Montgomery county and 'going into western' Maryland that would give the Democrats more.” Id. ¶ 47. One Democratic Senator who voted for the bill nonetheless lamented in a floor speech that partisan gerrymandering was a problem across America, ádding that “it’s ■ a process where we dress up partisan and political ambition on both sides of the aisle in high principal, but we can all tell what’s really going on.” Joint Stipulations ¶ 43(a) (emphasis added). And the only Democratic Senator to vote against the bill stated in an October 14 interview, “[W]hen you look at the way these districts are drawn, they’re absolutely drawn with one thing in mind.... [Tit’s certainly drawn so that you can minimize the voice of the Republicans.” ECF No. 177-41 at 16 (emphasis added). , ■
Moreover, the Cook Report’s analysis of the effect of redistricting on the Sixth District was corroborated by NCEC’s own data. According to NCEC, in the 2016 congressional election cycle, “Democrats [nationwide] won only four districts where DPI was below 50 percent”; in none of those districts was the DPI below 40%, as it was in the Sixth District prior to redistricting. ECF No. 191-7. Conversely, among the 160 districts across the country with a DPI above 50%, all but 12 were won by the Democratic candidate. Id. Both Cook’s and NCEC’s data confirmed that the Democrats held a clear electoral advantage and that Republican voices had indeed been minimized.
B. Proceedings
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,
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. Two of the original plaintiffs later agreed to their dismissal
The plaintiffs’ second amended complaint alleged that those responsible for the 2011 congressional map “purposefully and successfully flipped [the Sixth 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 alleged 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.” Id. ¶ 6. They alleged further that the plan achieved its intended effect, imposing a significant burden on the former Sixth District’s Republican voters and preventing them in 2012 and 2014 “from continuing to elect a Republican representative ..., as they had in the pri- or ten congressional elections.” Id. ¶ 7(b). And they maintained 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, the plaintiffs claimed in essence that the plan’s redrawing of the Sixth District's boundaries constituted unlawful retaliation in violation of their rights under the First Amendment.
In an opinion issued August 24, 2016, this three-judge court denied the State’s motion to dismiss, concluding that the plaintiffs had adequately alleged a justicia-ble claim for relief. Shapiro,
Following the completion of extensive discovery, the plaintiffs filed a motion for a preliminary injunction and requested, pursuant to Rule 65(a)(2), that the trial on the merits be advanced and consolidated with a hearing on their motion. Briefing on the plaintiffs’ motion for a preliminary injunction was completed, with the parties presenting a robust evidentiary record of more than 80 exhibits, and on July 14, 2017, we conducted a half-day hearing on the motion.
II
This court is clearly of one mind that, as a general matter, partisan gerrymandering is noxious to our form of democracy. And if we read correctly the public sentiment, that.view is widely shared. Indeed, the Supreme Court, with no disagreement from any Justice, has concluded that severe partisan gerrymandering is incompatible with democratic principles. Yet, Judge Bredar, writing only for himself, expresses doubts as to whether claims of partisan gerrymandering are justiciable.
To be sure, drawing the lines of congressional districts is a political process. But the Supreme Court has repeatedly recognized that the political nature of redistricting does not immunize the process from
While claims alleging violations. of individual constitutional rights are justiciable and have been so since Marburg v. Madison, the Court has been unable to find a standard by which to conclude that suspect districts, although equal in population, violate the Equal Protection Clause based on extreme partisanship. See Vieth,
First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views. In the context of partisan gerrymandering, that means that First Amendment' concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.
Id. at 314,
To begin, it is “axiomatic” that the government violates the First , Amendment when it regulates speech “based on its substantive content or the message, it conveys.” Rosenberger v. Rector & Visitors of Univ. of Va.,
Moreover, the government may not suppress one viewpoint even in spheres of activity where it can lawfully restrict the categories of speech permitted and the time, place, and manner in which it is conveyed. Rosenberger,
Indeed, even where the government is allowed, or even required, to consider the viewpoint of expression that it regulates, this does not give it permission to intentionally advance one viewpoint over the other. Thus, in Board of Education v. Pico,
In cases where some regulation of expression is inevitable, such as in Pico, assessing a constitutional claim “depends upon the motivation behind [the government’s] actions!” Pico,
Given these stringent limitations on the government’s ability to advance ideological motives by regulating speech, it would be strange indeed if a State’s administration of elections were not similarly limited. In fact, the Court has noted specifically that “in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections.” Kusper v. Pontikes,
Against the backdrop of this First Amendment jurisprudence, the plaintiffs’ First Amendment claim is readily justicia-ble. We previously concluded that plaintiffs stated a claim in alleging that the defendants drew district lines in order to dilute and thus diminish the effectiveness of their expression. The allegation that district lines were drawn with the intent to suppress the effectiveness of one political party’s voters is essentially no different from the familiar claims of adverse employment action due to protected political speech, see, e.g., Mt. Healthy,
Moreover, judicial abdication from partisan gerrymandering cases, as advocated by Judge Bredar, would have the most troubling consequences.
Drawing on traditional First Amendment jurisprudence, which includes “well-established standards for evaluating ordinary First Amendment retaliation claims,” Shapiro,
Ill
To grant a preliminary injunction, .we must conclude that the plaintiffs are likely to succeed on the merits; that without the injunction, they are likely to suffer irreparable harm; that the balance of equities favors them; and that the injunction would be in the- public interest. See Winter v. Nat. Res. Def. Council, Inc.,
Under the standard established in this case for a First Amendment claim, the plaintiffs must show (1) intent, (2) concrete adverse effect, and (3) causation. Shapiro,
First, with respect to the mapmakers’ intent, the process described in the record admits of no doubt. Maryland Democratic officials worked to establish the congressional- district boundaries in 2011 with a narrow focus on diluting the vote' of Republicans in the Sixth District, so as to ensure the election of an additional Democratic representative. Governor O’Malley, who was responsible for the redistricting process, asked Congressman Hoyer to be
The Advisory Committee’s reliance on the DPI was essential to satisfying the Committee’s intent to flip the Sixth District from safely Republican to securely Democratic. Notes prepared for Senate President Miller’s remarks to the state House and Senate Democratic Caucuses about the redistricting plan emphasized that the map “create[d] an opportunity for Montgomery County to control two congressional districts”; “preserve[d] all six incumbent Democrats in ‘safe’ districts,” none of which would have “less than 58% [DPI] ”; and “g[ave] Democrats a real opportunity to pick up a seventh seat in the delegation by targeting Roscoe Bartlett.” ECF No. 177-23. Governor O’Malley admitted that his Advisory Committee sought to “create a district” that “would be more likely to elect a Democrat than a Republican.” O’Malley Dep. 82:16-18; see also id. at 27:12-15 (describing aim of “put[ting] more Democrats and Independents into the Sixth District” to ensure “the election of another Democrat”). Senate Majority Leader Garagiola admitted that “one of the purposes[ ] [was] to make the Sixth Congressional District have 53 percent Democratic performance.” Garagi-ola Dep. 27:4-9 (ECF No. 177-24). These sorts of statements, particularly by delegates and state senators during the General Assembly’s abbreviated- consideration of the proposed map, are legion. See, e.g., Joint Stipulations ¶¶ 40-51.
The State’s argument that its officials intended only “to allow Democrats to have an equally effective voice in the election of a representative” in the Sixth District — an intent that it argues “cannot be equated with- an intent .to. burden [Republicans’] representational rights" — is hollow. Defs’ Memo, at 31. Even if the intent to make one party “more competitive” were constitutionally permissible, the record shows something materially different. Members of the Advisory Committee, with the help of NCEC, worked to craft a map that would specifically transform the Sixth District into one that would predictably — that is, by a 94% chance — elect a Democrat by removing Republicans from the District and adding Democrats in their place.
More fundamentally,' the State’s argument misunderstands the law. If the government uses partisan registration and voting data purposefully to draw a district that disfavors one party, it cannot escape liability by recharacterizing its actions as intended to favor the other party. The First Amendment does not distinguish between these intents, A school board,. for example, cannot manipulate its stock of library books for “narrowly partisan” reasons, whether its conduct is described as removing all books written by Republicans or as constructing a library full of books
The State also argues that its officials did not act with impermissible intent because they did not target specific voters based on their individual party affiliation or voting history. This argument, too, is based' on a misunderstanding of First Amendment jurisprudence. Here, the plaintiffs have shown that they were targeted for disfavored treatment because of a shared marker of political belief — their Republican party affiliation. The fact that the State moved Republican voters out of the Sixth District en masse, based on precinct-level data, and did not examine each voter’s history with care before taking that punitive action does not make its action less culpable under the First Amendment. Cf. Miller,
Thus, because State officials, have admitted that they intended “to -create a district where the people would be more likely to elect a Democrat than a Republican”, and that they removed likely Republican voters from the Sixth District specifically to achieve that aim, the plaintiffs have established that the State acted with, constitutionally impermissible intent..
Second, with respect to the adverse effect element, the plaintiffs have shown that the redrawn Sixth District did, in fact, burden their representational rights. At the threshold, it is important to reiterate that, under the standard set forth in our denial of the motion to dismiss,- a plaintiff who has shown that the State acted with impermissible retaliatory intent need not show that the linedrawing altered the outcome of an election — though such a showing would certainly be relevant evidence of the extent of the -injury. See Shapiro,
The plaintiffs here have made such a showing. By several measures, the new Sixth District map severely disfavors Republican voters. In creating the map, the State removed over 66,000 registered Republicans from the Sixth District and added some 24,000 registered Democrats, such that Republican voters went from outnumbering Democrats 1.3 to 1 (47% of the district’s registered eligible voters being Republicans and 36% Democrats) to nearly the exact inverse (44% Democrats, 33% Republicans). Joint Stipulations ¶¶ 10, 63. According to the DPI metric used by the mapmakers and the Cook PVI metric endorsed by the State’s expert, Republican voters in the new Sixth District were, in relative terms, much less likely to elect them preferred candidate than before the 2011 redistricting, and, in absolute terms, they had no real chance of doing so. Indeed, the Cook report deemed the district’s swing — from “Solid Republican” (R + 13) to “Likely Democratic” (D+2)— the largest of any district in the country. ECF No. 177-62 at 6-8. And, historically, “Likely Democratic” districts elect a Dem: ocrat 94% of the time. See Campbell, supra, at 628.
Moreover, while the State’s linedrawing need not change the outcome of an election to be culpable, the fact that a Democratic candidate was elected in the three elections following the 2011 redistricting supports the fact that the Republican voters have suffered constitutional injury. In other words, the Democratic officials who drew the map achieved what they aimed to do — to make Republican voters in the Sixth District less effective.
The State argues that the plaintiffs have not adequately shown that the new Sixth District map actually “chilled” their protected expression. Defs’ Memo, at 38. This argument has two flaws. First, a First Amendment injury need not take the form of “chilling” or “deterring” speech. Rather, a plaintiff may claim retaliation if his expression is “adversely affected,” Suarez Corp. Indus. v. McGraw,
The State’s action here would impair a reasonable Republican voter’s exercise of his First Amendment rights. Republicans in the Sixth District faced a severe political disadvantage after the 2011 redistricting. This itself is a constitutional injury. Moreover, it is not hard to see how the dilution of Republican voters’ effectiveness could deter reasonable voters from full participation in the political process. A committed Republican voter who finds himself in the minority may well lose interest in voting or in supporting candidates for a legislative office that, realistically, they are unlikely to fill. A different Republican voter
Finally, as to causation, the plaintiffs have established that, absent the State’s retaliatory intent, the Sixth District lines would not have been drawn to dilute the electoral power of Republican voters to the same extent. The framework governing our inquiry into causation is set forth in Mt. Healthy,
The State rejects Mt. Healthy’s burden-shifting framework for causation, contending that it applies only in the context of public employment. But there is simply no support for the State’s cramped reading of that case. On the contrary, Mt. Healthy stands for a general, common-sense principle applicable in all retaliation-based First Amendment claims — that, where the government takes an injurious action, an injured party need not show that the government would never have taken the same action anyway. The Supreme Court has accordingly relied on the Mt. Healthy framework in several types of claims unrelated to public employment, and indeed in allegations of constitutionally forbidden in
As already - noted, the record demonstrates that'the State intended to burden the plaintiffs’ representational rights, which leaves the question of whether the State has shown that, absent this intent, it would have drawn lines that similarly burdened Republican voters in the Sixth District. While it probably would be impossible for the State to show that it would have drawn-the exact same district lines absent the impermissible intent, to satisfy its end of the burden-shifting inquiry, it would at least have to show that it would have drawn lines 'that similarly burdened the plaintiffs’ representational rights. .
Even this, however, the State cannot do, It points to two primary objectives that it claims justify the Sixth District’s reconfiguration in 2011 — preventing the new First District from crossing the Chesapeake Bay and grouping residents of the 1-270 corridor together in one district. But the evidence of intent in this case is overwhelming and undisputed that the State drew the lines of the Sixth District to flip the District from Republican to Democratic control, and .it is implausible that consideration of these other objectives would have led to a map that similarly burdened Republican voters. Again, in tasking Hawkins with drawing a map, Democratic officials provided him with only two goals — protecting Democratic incumbents and obtaining a seventh Democratic seat. Hawkins was not instructed to consider whether “there was a community of interest related to the 1-270 corridor.” Hawkins Dep. 128:19-20. The record shows no invocation of 1-270 as a justification for the shapes of the Sixth and Eighth District’s until Je'anne Hitchcock’s presentation of the nearly final map to the joint session of House and Senate Democratic Caucuses and, unsurprisingly, even Democratic delegates found it a flimsy justification for the dramatic reshuffling of the two districts. See, e.g., Joint Stipulations ¶ 46.
The majority, in finding that the plaintiffs failed to show a likelihood of success on the causation element, commits two significant errors. First, it mischaracterizes our previous holding on the causation element to adopt a new standard that is inconsistent with First Amendment jurisprudence. Second, it applies the new standard to the facts in a confusing and inherently inconsistent manner.
The majority begins correctly by stating the causation standard from our previous holding — that the gerrymander must create a tangible, adverse impact that would not have occurred but for the unconstitutional intent of the mapmakers, See ante at 810-11. But then it leaps from this correct statement of the causation standard to its own newly created standard by requiring “proof that but for the gerrymander, the challenged effect (here, the switch in political power in the Sixth District) would not have happened.” Id. (second emphasis added). Explaining its new standard further, the majority states that the causation element “would be satisfied only if [the evidence showed that] Roscoe Bartlett would have won reelection in 2012 had the prior map remained intact.” Ante at 812. Indeed, it expressly contemplates that voters’ inju
Under the majority’s standard requiring an altered election outcome, critical First Amendment violations could never be remedied. For instance, claims that the party in control of State government deliberately attempted to suppress political speech before an election or deliberately located polling places to inconvenience the other party could never be pursued under the majority’s standard, because the plaintiffs would be unable to show that the election results were tipped as a result of the unconstitutional conduct. More to the point, under the majority’s new standard, no redistricting map could be challenged before an election. Any standard of causation that would so arbitrarily limit our ability to redress constitutional injuries must be rejected.
In applying its new standard to the facts in the record, the majority’s analysis is yet more confusing. The majority accepts that the defendants here did- in fact intend to retaliate against voters who had previously voted for Republican candidates in the Sixth District by drawing a map that moved over .66,000 Republicans from the old Sixth District and introduced some 24,-000 new Democrats to diminish the Republicans’ ability to express their political viewpoint. The majority also accepts, as it has to, that this map was in fact adopted and that, under this new map, the Republicans’ voice was diminished and the Democrats achieved unprecedented electoral success in the Sixth District. I submit that only one conclusion can be drawn from these accepted facts — that a degree of vote dilution significant enough to place Republican voters at a concrete electoral disadvantage was caused by the conduct that the State specifically intended. Yet, somehow, the majority holds that these actions did not cause the retaliatory harm that the State intended. The majority somehow concludes that the State’s plan was ineffective, despite its intended effect coming to pass. Such a view of causation necessarily embraces the bizarre notion that other, unnamed factors might have coincidently caused those effects. Under such reasoning, a defendant who intentionally poisons a victim’s drink could not be found to, cause the death because the victim might ■have died from a heart attack anyway. Yet this is the argument that the majority embraces.
Moreover, applying a causation standard that seeks to eliminate all possible but unproved factors, however remote and speculative; is directly contrary to the causation standard that the Supreme Court has established for retaliation claims. In Mt. Healthy, the Court required only a showing that the constitutionally imper-'nlissible intent was a motivating factor, such that the State cannot escape liability by hypothesizing some remote or speculative cause. See Mt. Healthy,
In sum, the record amply proves that the State violated the First Amendment under the standard we previously adopted
IV
The other three factors governing our issuance of a preliminary injunction do not require extensive discussion. Absent an injunction, the plaintiffs are likely to suffer irreparable harm. Because the State’s construction of the Sixth District in 2011 likely violated the plaintiffs’ First Amendment rights, the plaintiffs are experiencing ongoing constitutional injury without a new map. See League of Women Voters of N.C. v. North Carolina,
The balance of the equities here also favors the plaintiffs. To be sure, requiring Maryland to redraw the Sixth District’s boundaries is no trivial matter. But where, as here, plaintiffs establish a strong likelihood of success on the merits and irreparable injury, they have generally shown that the equities work in their favor. Direx Israel, Ltd. v. Breakthrough Med. Corp.,
Finally, it is obvious that an injunction here will serve the public interest. An injunction will not only redress a serious, ongoing constitutional injury, but will also enable the plaintiffs and those similarly situated to them — a large portion of Maryland voters — to more fully participate in congressional elections.
In sum, this fulsome record overwhelmingly shows the plaintiffs’ satisfaction of on’ First Amendment standard, and the ongoing harm can only be rectified by the entry of an injunction. I would therefore grant the plaintiffs’ motion in full.
V
If the plaintiffs were to appeal the denial of their motion for an injunction, see 28 U.S.C. § 1253, I would have no objection to the entry of a stay. Failing that, however, the mere pendency of Gill v. Whitford, No. 16-1161, in the Supreme Court does not justify delaying a final decision in this case alleging a serious breach of an important constitutional right. The nature of the claim in Gill, as well as the facts supporting the claim, is materially different from the nature of the claim before us. Gill centers on an Equal Protection claim relating to statewide redistricting, while this case involves a First Amendment claim arising from the line-drawing of a single district. Accordingly, at this juncture, I do
Judge Bredar protests that it "is incorrect” to state that he concludes that partisan gerrymandering claims are not justiciable. Ante at 808. Yet he expressly relies on what he considers to be the plaintiffs’ failure to establish justiciability as a basis for denying their motion for a preliminary injunction. Ante at 808; see also ante at 801.
The standing law is that partisan gerrymandering claims are justiciable. See Bandemer,