By: Hayley A Steffen
The Supreme Court has famously asserted that the right to vote is “preservative of other basic civil and political rights.” Recognizing the right to vote is implicated in election law litigation, Congress enacted special procedures for adjudicating these claims under the Three-Judge Act of 1910. Now codified under 28 U.S.C. § 2284, one provision requires a three-judge district court to hear constitutional challenges to redistricting claims of any congressional or statewide legislative body. Although the statute reads that the single judge to whom the request for a three-judge panel is made “may determine that a panel is not necessary,” it is unclear under what standard the judge has the authority to do so. Next month, the Supreme Court will be called upon to clarify this standard in a case brought by a Maryland man challenging the state’s redistricting scheme.
In Shapiro v. Mack, the petitioner brought suit challenging Maryland’s contorted congressional districts, drawn by state Democrats in 2011. According to some analysts, Maryland’s congressional districts “are among the most convoluted in the country.” Shapiro alleges that the political map violated Republicans’ First Amendment rights “by placing them in districts where they were the minority, therefore marginalizing them based on their political views.” A single-judge district court declined to convene three judges and dismissed the case based on petitioner’s failure to state a First Amendment claim under Federal Rule of Evidence 12(b)(6). On appeal, the Fourth Circuit summarily affirmed, and denied petitioner’s request for rehearing and rehearing en banc. The Supreme Court granted Shapiro’s petition to answer: “whether a single-judge district court may determine that a complaint covered by 28 U.S.C. § 2284 is insubstantial, and that three judges therefore are not required, not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).”
Congress “preserve[d] three-judge courts for cases involving congressional reapportionment or reapportionment of a statewide election because . . . these issues are of such importance, that they ought to be heard by a three-judge court.” Under the Three-Judge Act “a district court of three judges must be convened when an action is filed challenging the constitutionality of the apportionment of congressional districts.” When a suit is covered by § 2284 (a) is filed, the single-judge court “shall, unless he determines that three judges are not required, immediately notify the chief judge of the circuit, who shall designate two other judges, at least one of whom shall be a circuit judge to hear and determine the action or proceeding.” Most importantly, appeals of these cases go directly to the Supreme Court, bypassing appellate review. Furthermore, unlike a cert. denial, the Court’s decision not to hear a case up on appeal means the lower court did get the result right. Because of this, Justices feel more pressure to grant full hearings to cases up on appeal, therefore making them more likely to be heard by the Supreme Court.
At the crux of the case is the meaning of the phrase “unless he determines that three judges are not required” in § 2284 (a). In Goosby v. Osser, the Court held that three judges are not required when the “constitutional attack . . . is insubstantial,” that is, “‘obviously without merit’” or “obviously frivolous.” But what exactly is the standard for “insubstantial”? According to petitioners, “one-judge dismissal is appropriate only if the claim is so insubstantial that it does not invoke federal jurisdiction.” However, the single- judge district court relied on the Fourth Circuit’s precedent in Duckworth v. State Administration Board of Election Laws, which held that “a case need not be referred to a three-judge court if the complaint fails to state a claim under Rule 12(b)(6).” Respondents contend a complaint that fails to state a claim is obviously insubstantial under the Court’s Goosby precedent. Petitioners argue that the Fourth Circuit’s ruling is inconsistent with the statutory text and other circuits’ precedents, replacing the long-standing test of frivolousness with a plausibility standard. Allowing a single judge to dismiss on 12(b)(6) requires an inquiry into the case’s merits, which is contradictory to § 2284’s intent for three judges (instead of just one) to rule on the merits of such cases.
With precedential support from the D.C., Second, Third, Fifth, and Seventh Circuits, the Court is likely to buy the petitioners’ argument and overturn the Fourth Circuit’s decision. Professor Jason Torchinsky, a partner at HoltzmanVogelJosefiak PLLC specializing in election law, predicts that the Court will reverse the Fourth Circuit’s decision finding it inconsistent with other circuits’ precedents and the statutory intent of the law. According to Torchinsky,“what will most likely happen is that the Court will reverse the Fourth Circuit and remand the case to be heard by a three-judge district court.” Torchinsky predicts “despite a win at the Supreme Court, the eventual three-judge panel will nevertheless dismiss the case on the merits of the First Amendment claim.” Despite this potential bittersweet future for Shapiro’s case, a ruling in his favor could make it easier for other redistricting challenges to be heard by a three-judge panel, and then in front of the Supreme Court.