Does Gerrymandering Violate Free Speech?

State parties across the country have already taken out knives to hack up political maps in the bloody process of redistricting. Now, many states are going to the mat to defend the highly partisan maps that, in most cases, got passed by the dominant political party in the state to the detriment of the minority party. The legal battles—particularly the ongoing Texas saga—are usually based largely around whether maps violate the Voting Rights Act. 

But in Illinois, the bipartisan League of Women Voters is challenging gerrymandered districts based on a new legal claim: that they violate free speech. While a district court already dismissed its claim, the League of Women Voters can—and has—appealed to the Supreme Court. Because it's a redistricting case, the Court will have to rule on the matter.

"This is the first time a really bipartisan group has challenged gerrymandering as a regulation of speech," says Thomas Geoghegan, the attorney for the group. "What's really shocking is that in front of our eyes for years the states have been moving people from one place or another based on the views they have expressed not in the polling place … but because you have identified yourself as a Democrat or a Republican."

The legal argument takes advantage of the Supreme Court's recent and controversial Citizens United ruling, in which restrictions on corporate spending in political campaigns were deemed restrictions on speech. According to the court, concerns about fairness and balance were not enough to warrant the campaign-finance laws. 

According to appeal, similar concerns about fairness and competition are used to justify gerrymandering in Illinois. "In ostensibly acting to ensure competitive campaigns," reads the League's appeal, "the state relocates citizens to new or different districts with the specific purpose of countering or offsetting speech in favor of one political party with speech from the other." Furthermore, the appeal goes, the determination is based on people's activism and vocal identification as Democrats or Republicans—what's known as a "content based" regulation of speech as opposed to a neutral piece of criteria. 

Just to be clear, no one is arguing the gerrymandering prevents citizens from voting, running for office, or expressing themselves. Instead, the concern is that by redrawing lines, and moving communities into different districts, the state tamps down on some speech, making it less powerful. 

Geoghegan compares the situation to the government running a public debate but only allowing 50 Republicans and 50 Democrats. Past party affiliations and activism would be used to judge who got in, and the rest would be kept out of the debate. "I think we would be properly aghast that the government is regulating who gets in and who gets out," he said. And Geoghegan argues that gerrymandering is strikingly similar: lawmakers trying to control a public debate by creating partisan balance in each legislative district.

The appeal asks that the Court "fashion a remedy that requires a neutral process" for redistricting—likely something along the lines of the bipartisan commissions in Iowa and New Jersey. 

"This is a content-based regulation of speech that we have never had the Supreme Court permit except for a compelling reason," says Geoghegan. In this case, he says, "there is no compelling reason."

Soon we'll see if the Court agrees.