Benisek v. Lamone

266 F. Supp. 3d 799

Opinions

MEMORANDUM

Bredar, District Judge.

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, 2017.¹

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. -, 136 S.Ct 450, 193 L.Ed.2d 279 (2015), the case was assigned to a three-judge panel composed of Circuit Judge Niemeyer and District Judges' Bredar and Russell. (ECF No. 42.) On March 3, 2016, Plaintiffs filed a Second Amended Complaint challenging Maryland’s 2011' congressional districting map as an unconstitutional political gerrymander. (ECF No. 44.) The State moved to dismiss pursuant to Rule 12(b)(6) 'of the Federal Rulés of Civil Procedure. (ECF No. 51.)

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), 203 F.Supp.3d 579 (D. Md. 2016). In its ruling, the panel majority held that Plaintiffs’' Second Amended Complaint stated a justiciable claim for relief.. The majority went on to endorse a standard for assessing political gerrymandering claims under the First Amendment:

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 596-97.²

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 in their favor, and (4) that an injunction would serve the public interest. WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (citing Winter v. NRDC, 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). “A preliminary injunction is an ‘extraordinary remed[y] involving the exercise of very far-reaching power’ and is ‘to be granted only sparingly and in limited circumstances.’” Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 588 (4th Cir. 2017) (alteration in original) (quoting MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001)), cert. granted, — U.S. -, 137 S.Ct. 2080, 198 L.Ed.2d 643 (2017).

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, 672 Fed.Appx. 259, 260 (4th Cir. 2016) (per curiam) (“Rule 52(a)(2) ... requires that the district court make particularized findings of fact supporting its decision to grant or deny a preliminary injunction; such findings are necessary in order for an appellate court to conduct meaningful appellate review.”); accord Booker v. Timmons, 644 Fed.Appx. 219 (4th Cir. 2016) (mem.). Because Judge Bredar’s discussion in Part II.B, concerning justiciability, involves a pure question of law, no findings are enumerated in that Part. However, the opinion of the Court in Part II.C, concerning the causation element of Plaintiffs’ First Amendment theory, includes findings germane to that issue as well as separately stated conclusions of law. Such findings and conclusions are, given the procedural posture of this case, preliminary, and they will not bind the Court in any future proceedings. See Blake v. Balt. Cty., 662 F.Supp.2d 417, 421 (D. Md. 2009) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981)).

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., 299 U.S. 248, 254, 57 S.Ct. 163, 81 L.Ed. 153 (1936); see also Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983) (recognizing that courts enjoy the inherent authority to grant a stay “under their general equity powers and in the efficient management of their dockets”). The decision to stay an action “calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55, 57 S.Ct. 163; see also Rogler v. Fotos, Civ. No. WDQ-14-228, 2015 WL 7253688, at *13 (D. Md. Nov. 17, 2015), aff'd, 668 Fed.Appx. 462 (4th Cir. 2016) (mem.); Cutonilli v. Maryland, Civ. No. JKB-15-629, 2015 WL 5719572, at *4 (D. Md. Sept. 28, 2015), appeal dismissed, 633 Fed.Appx. 839 (4th Cir. 2016) (mem.).

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, 2013 WL 3776951, at *2 (D. Md. July 17, 2013) (citing Yearwood v. Johnson & Johnson, Inc., Civ. No. RDB-12-1374, 2012 WL 2520865, at *3 (D. Md. June 27, 2012)).

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.” 203 F.Supp.3d at 598. Judge Bredar disagreed, writing that because (1) Plaintiffs had “npt shown that their framework would reliably identify those circumstances in which voters’ representational rights have been impermissibly burdened” and (2) no “acceptable alternative framework” had been identified, Plaintiffs’ claim must be treated as nonjusticiable. Id. at 601-02 (Bredar, J., dissenting). Despite the disagreement among the members of the panel on this threshold issue, the majority opinion remains the law of the case absent reconsideration by at least two judges or intervention by the Supreme Court. This Memorandum does nothing to unsettle that prior decision.

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, 478 U.S. 109, 146, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986) (O’Connor, J., concurring in the judgment) (“The opportunity to control the drawing of. electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. .Thus,-' the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out ... present a political question in the truest sense of the term.”).

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, 555 U.S. at 20, 129 S.Ct. 365. That assessment is quite different from the plaintiff-friendly evaluation of the pleadings under Rule 12(b)(6) and the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A court that has made a preliminary legal determination in the plaintiffs favor must decide at the Rule 65(a) stage whether the plaintiff has carried its burden to show it will likely succeed on the merits. Intervening developments in the law and, in particular, signals from appellate courts, must inform this analysis.

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, 218 F.Supp.3d 837 (W.D. Wis. 2016), is fairly remarkable in that it is the first district court opinion since the Supreme Court’s splintered ruling in Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004), to (1) endorse a standard for adjudicating political gerrymandering claims, (2) apply that standard to rule in the plaintiffs favor, and then (3) order the state to draw a new map.³

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, 478 U.S. at 125, 106 S.Ct. 2797, but the Court fractured on the standard for adjudicating these claims. Conversely, Chief Justice Burger and Justices O’Connor and Rehnquist would have held that political gerrymandering claims “raise á nonjusticiable political question that the judiciary should leave to the legislative branch as the Framers of the Constitution unquestionably intended.” Id. at 144, 106 S.Ct. 2797 (O’Connor, J., concurring in the judgment).

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.” 541 U.S. at 281, 124 S.Ct. 1769. Justice Kennedy, the swing vote, declined to sign on to the plurality opinion that would have overruled Ban-demer, but he sounded sharp notes of caution, writing that there are “weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in, the long ,run.” Id. at 309, 124 S.Ct. 1769 (Kennedy, J., concurring in the judgment); see also id. at 317, 124 S.Ct. 1769 (“The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper.”).

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, 124 S.Ct. 1769 (plurality opinion) (emphasis added); see also Michael S. Kang, When Courts Won’t Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy', 68 Ohio St. L.J. 1097, 1111 (2007) (“Justice Kennedy’s ambivalence leaves it bizarrely unclear where the law of partisan gerrymandering stands. The plurality in Vieth, as a result, argued that Justice Kennedy’s vote ought to be understood effectively, if not expressly, as ‘a reluctant fifth vote against justiciability.’ ” (footnotes omitted)). Hardly a resounding triumph for those who would ask federal courts to adjudicate political gerrymandering disputes, Vieth was the last case in which the Court squarely confronted the question.⁴

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, 980 F.2d 943, 950 (4th Cir. 1992) (alteration in original) (quoting Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991)); see also Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir. 2017) (“Justiciability is an issue of subject-matter jurisdiction, and we have an independent obligation to evaluate our ability to hear a case before reaching the merits of an appeal.”); Proctor v. Prince George’s Hosp. Ctr., 32 F.Supp.2d 820, 824 (D. Md. 1998) (“It is appropriate for a district court to raise issues of justiciability sua sponte.”).

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. -, 137 S.Ct. 1455, 197 L.Ed.2d 837 (2017), a racial gerrymandering case decided late last Term. In a separate opinion, Justice Alito — joined by Chief Justice Roberts and, strikingly, Justice Kennedy — took a dim view on the justiciability of political gerrymandering:

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, 365 F.3d 86, 92 (1st Cir. 2004) (“[Cjarefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative.” (citation omitted)); Jordon v. Gilligan, 500 F.2d 701, 707 (6th Cir. 1974) (“Even the Court’s dicta is of persuasive precedential value.”); Fouts v. Md. Cas. Co., 30 F.2d 357, 359 (4th Cir. 1929) (“[C]ertainly dicta of the United States Supreme Court should be very persuasive.”). However, these remarks are further evidence that the justiciability question is far from settled and will likely be a focal point at the October 2017 argument.

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, 136 S.Ct. at 456.⁵

The dissent simply, is incorrect when it states that Judge Bredar advocates “judicial abdication from partisan gerrymandering cases,” post, at 830. Far from it. A final decision by a majority of Justices instructing lower courts to. apply a particular standard to resolve partisan gerrymandering claims would be a welcome development in the law. See Shapiro II, 203 F.Supp.3d at 600 (Bredar, J., dissenting) (“This opinion is not a defense of the State’s authority to segregate voters by political affiliation so as to achieve pure partisan ends: such conduct is noxious and has no place in a representative democracy.”). The point of this discussion is not to suggest that political gerrymandering claims are not or should not be justiciable; rather, it is to call attention to the uncertainty in the law, an uncertainty that was amplified two months ago when the Court granted argument in Whitford. Pausing these proceedings- to await further guidance from the Supreme Court is not abdication: it is an expression of prudence, judicial restraint, and respect for the role of a district court that must scrupulously adhere to the instructions of appellate authorities.

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, 203 F.Supp.3d at 596, it is unclear whether any such nefarious plan was and remains effective. This Court is not now persuaded that Plaintiffs will likely prove 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.” Id. at 597. Put more simply, the Court is not yet persuaded that it was the gerrymander (versus a host of forces present in every election) that flipped the Sixth District and, more importantly, that will continue to control the electoral outcomes in that district. Voter decisions are mutable and subject to change, despite voting history and party affiliation. As discussed below, the razor’s-edge Sixth District race in 2014 is evidence that suggests significant party-cróssovér voting and calls into doubt whether the State engineered an effective gerrymander.

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 extraordinary remedy of preliminary in-junctive relief.

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 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 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 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 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 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, 218 F.Supp.3d at 884.

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, 203 F.Supp.3d at 606 (Bredar, J., dissenting), no injury has occurred and no remedy may issue. While the Supreme Court’s decision in Whitford may not prove dispositive of Benisek, the Court’s analysis undoubtedly will shed light on critical questions in this case, and the parties and the panel will be best served by awaiting that guidance.

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.⁷

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 decide Whitford along the lines that the Western District of Wisconsin-found persuasive. If the First Amendment theory that Plaintiffs here have proposed and that two members of this panel have recognized as justiciable strikes one or more of the Justices as workable, the Justices certainly may adopt, co-opt, modify, or otherwise incorporate elements of that theory into a framework for decision or a possible framework for future cases.

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. -, 135 S.Ct. 2652, 2658, 192 L.Ed.2d 704 (2015). This Court will not shrink from its responsibility to adjudicate any viable claim that such segregation has occurred in Maryland, But in order to correctly adjudicate such a claim, the Court must first insure that it is proceeding on the correct legal foundation — that in measuring the legality and constitutionality of any redistricting plan in Maryland it is measuring that plan according to the proper legal standard. Following the Supreme Court’s decision in Whitford, this panel will be better equipped to make that legal determination and to chart a wise course for further proceedings.

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,

Footnotes

1

. 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). ■:

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, 203 F.Supp.3d at 601 (Bredar, J., dissenting). Ultimately, Judge Bredar concluded, there is no reliable, administrable standard for "distinguishing electoral outcomes achieved through political gerrymandering from electoral outcomes determined by the natural ebb and flow of politics.” Id. at 606.

3

. The Whitford. panel addressed the remedy separately in an unpublished opinion, see Whitford v. Gill, No. 15-cv-421-bbc, 2017 WL 383360 (W.D. Wis. Jan. 27, 2017).

4

. In League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399, 414, 126 S.Ct 2594, 165 L.Ed.2d 609 (2006), a majority of Justices declined to address the question of justiciability. Chief Justice Roberts and Justice Alito stressed in a separate opinion that they took "no position on that question, which has divided the Court.” Id. at 492-93, 126 S.Ct. 2594 (Roberts, C.J., concurring in part, concurring in the judgment in part, and dissenting in part). Justices Scalia and Thomas reiterated their view that political gerrymandering claims are nonjusticiable. Id. at 512, 126 S.Ct. 2594 (Scalia, J., concurring in the judgment in part and dissenting in part).

5

. 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 fronted with such a simple challenge.. It is not, though, and we should not oversimplify the challenge of adjudicating the claim that is actually before us on the basis of a hypothetical that has little to do with that claim.

6

. But see Shapiro II, 203 F.Supp.3d at 606 (Bredar, J., dissenting) ("Because of the inherent mutability of political affiliation, the Court cannot simply compare the results of an election conducted pursuant to Map X with those of a subsequent election conducted pursuant to Map Y and blame any shift in power on redistricting: each election cycle is unique, and voter behavior is as unpredictable as the broader societal circumstances that may make one candidate, or one party, more appealing than the other to particular voters and communities, For that matter, treating a prior map as a baseline for measuring the constitutionality of a subsequent map assumes that the prior map was itself free of impermissible manipulation — yet we know, as a practical matter, that gerrymandering is widespread in our political system and as old as the Republic.”); LULAC, 548 U.S. at 446, 126 S.Ct. 2594 (Kennedy, J.) ("There is no reason ,.. why the old district has any special claim to fairness.’’).

7

. 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., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)—only to then stay that equitable remedy. Rather, the Court will enjoin the State to implement a new map if but only if it becomes persuaded that Plaintiffs have proved each element of their First Amendment claim to the requisite degree of certainty.