Benisek v. Lamone

Whether the preliminary relief standard for an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander requires a plaintiff to prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map.

Petitioners, all Maryland voters and registered Republicans, assert that Maryland’s 2011 redistricting plan was a gerrymander for the purpose of diluting Republican votes. Petitioners allege that they were specifically targeted by the redistricting plan based on their prior voting history in violation of the First Amendment. The federal district court denied the Respondents’ motion to dismiss and held Petitioners’ claims were justiciable.  The district court also issued an opinion denying Petitioners’ preliminary injunction motion and stayed the case pending the outcome of Gill v. Whitford, another gerrymandering case currently pending before the Supreme Court. The district court held that the applicable standard was whether the election outcomes were “attributable to gerrymandering,” for which the Gill case will provide guidance. However, the district court determined the standard was not satisfied without evidence of the continued effect on elections, because the “likelihood of prevailing” depends on the outcome of Gill. Petitioners argue that the redistricting plan interfered with their opportunity to elect their representative of choice by vote dilution, which was established by the election results of 2012, 2014, and 2016. Petitioners assert that the vote dilution was “more-than-de-minimus,” which they argue is the correct standard. The Supreme Court also accepted the case to determine whether it has jurisdiction, which it will determine after the case is heard on the merits.