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O. John Benisek, et al., Appellants v. Linda H. Lamone, Administrator, Maryland State Board of Elections, et al.

Paid petition · United States District Court for the District of Maryland, No. 1:13-cv-03233-JKB · judgment August 24, 2017

Decided · June 18, 2018

Pre-decision estimate: 47% cert probability (95% interval 27%–67%)

Before the decision, about 11.3× the 4.1% base rate. The model weighted this up for a direct appeal from a three-judge district court (mandatory jurisdiction) and a petition filed soon after the judgment below, and down for a state or local-government respondent.

Questions presented

This case is a First Amendment challenge to the partisan gerrymander of a single federal congressional district. Plaintiffs allege that state officials responsible for Maryland's 2011 congressional redistricting plan targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine. In earlier proceedings in this case, this Court held that plaintiffs’ retaliation claim is a substantial one, required to be heard by a three-judge district court. On remand, the threejudge court held that plaintiffs' retaliation claim is justiciable. The district court, in a divided opinion, thereafter denied plaintiffs' motion for a preliminary injunction, from which this appeal is taken. This appeal presents the following questions:

Did the majority err in holding that, to establish an actual, concrete injury in a First Amendment retaliation challenge to a partisan gerrymander, a plaintiff must prove that the gerrymander has dictated and will continue to dictate the outcome of every election held in the district under the gerrymandered map?
Did the majority err in holding that the Mt. Healthy burden-shifting framework is inapplicable to First Amendment retaliation challenges to partisan gerrymanders?
Regardless of the applicable legal standards, did the majority err in holding that the present record does not permit a finding that the 2011 gerrymander was a but-for cause of the Democratic victories in the district in 2012, 2014, or 2016? JURISDICTION POSTPONED 12/8/2017

Counsel of record

For petitioner
Michael B. Kimberly
McDermott Will & Emery LLP

For respondent
Steven Marshall Sullivan

Case

Conference history
Distributed for 2 conferences

Amicus briefs
15 cert-stage

Argument & decision

Argued March 28, 2018 — Michael B. Kimberly · Steven M. Sullivan. Audio and transcript

Decided June 18, 2018. Opinion by Per Curiam.

Proceedings

Jul 20 2018
JUDGMENT ISSUED.
Jun 18 2018
Adjudged to be AFFIRMED. Opinion per curiam.
Mar 28 2018
Argued. For appellants: Michael B. Kimberly, Washington, D. C. For appellees: Steven M. Sullivan, Solicitor General, Baltimore, Md.
Mar 13 2018
Reply of appellants O. John Benisek, et al. filed. (Distributed)
Feb 28 2018
Brief amicus curiae of State of Wisconsin filed. (Distributed)
Feb 28 2018
Brief amicus curiae of Freedom Partners Chamber of Commerce filed. (Distributed)
Feb 28 2018
Brief amicus curiae of States of Michigan, et al. filed. (Distributed)
Feb 27 2018
Brief amicus curiae of Senator Joseph B. Scarnati, III filed. (Distributed)
Feb 21 2018
Record requested from the U.S.D.C Dist. of Maryland.
Feb 21 2018
Brief of appellees Linda H. Lamone, et al. filed. (Distributed)
Feb 07 2018
CIRCULATED
Jan 29 2018
Brief amici curiae of Bipartisan Current and Former Members of Congress filed.
Jan 29 2018
Brief amici curiae of International Municipal Lawyers Association, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and the County of Santa Clara filed.
Jan 29 2018
Brief amicus curiae of Professor Michael Kang filed.
Jan 29 2018
Brief amici curiae of Campaign Legal Center and Southern Coalition for Social Justice in Support of Neither Party filed.
Jan 29 2018
Brief amici curiae of Judicial Watch, Inc. and Allied Educational Foundation in support of neither party filed.
Jan 29 2018
Brief amicus curiae of The Brennan Center for Justice at N.Y.U. School of Law filed.
Jan 29 2018
Brief amici curiae of National Association for the Advancement of Colored People, et al. in support of neither party filed.
Jan 29 2018
Brief amici curiae of Governors Lawrence Joseph Hogan Jr., Arnold A. Schwarzenegger, Joseph Graham "Gray" Davis Jr., and John R. Kasich filed.
Jan 29 2018
Brief amici curiae of American Civil Liberties Union, et al. filed.
Jan 29 2018
Brief amicus curiae of Stephen M. Shapiro filed.
Jan 25 2018
Brief amicus curiae of Common Cause filed.
Jan 24 2018
SET FOR ARGUMENT ON Wednesday, March 28, 2018
Jan 22 2018
Brief of appellants O. John Benisek, et al. filed.
Jan 22 2018
Joint appendix filed (4 volumes). (Statement of cost filed.)
Jan 05 2018
Blanket Consent filed by Respondent, Linda H. Lamone, et al.
Dec 26 2017
Blanket Consent filed by Petitioner, O. John Benisek, et al.
Dec 08 2017
Further consideration of the question of jurisdiction is POSTPONED to the hearing of the case on the merits.
Dec 04 2017
DISTRIBUTED for Conference of 12/8/2017.
Nov 14 2017
DISTRIBUTED for Conference of 12/1/2017.
Nov 13 2017
Opposition to motion of appellants O. John Benisek, et al. filed.
Oct 31 2017
Motion to affirm filed by appellees Linda H. Lamone, et al.
Sep 14 2017
Order extending time to file response to the jurisdictional statement to and including October 31, 2017.
Sep 13 2017
Motion to expedite consideration filed by appellants DENIED.
Sep 12 2017
Reply to response in opposition to motion to expedite consideration of the jurisdictional statement from appellants filed.
Sep 11 2017
Response in opposition to motion to expedite consideration of the jurisdictional statement from appellees filed.
Sep 01 2017
Statement as to jurisdiction filed. (Response due October 2, 2017)
Sep 01 2017
Motion to expedite consideration of the jurisdictional statement filed by appellants.