Benisek v. Lamone (17-333)

argument 17-333

Benisek v. Lamone

Supreme Court of the United States 1h 2m 6 speakers 8 chapters transcribed 5 days ago official recording ↗

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What is the central constitutional question in Benisek v. Lamone?

John G. Roberts 0:00

We'll hear argument this morning in case seventeen three three three, Benesec versus Lamone. Mr Kimberly?

David Greene 0:07

Mr Chief Justice, and may it please the Court. All nine justices in Beath against Jubileer agreed that partisan gerrymandering can violate the constitution. The principal question presented in this case is whether this court has the Article three authority to do anything about it. We submit that it does under the First Amendment. According to this Court's First Amendment retaliation and ballot access cases, government officials may not single out particular individuals for disfavoured treatment. On the basis of the views that they have expressed at the ballot box in prior elections.

Unknown 0:44

Kind of preliminary question. I I take it it's it's much too late. uh even if you were successful. for there to be any change for the twenty eighteen election. And if that's so And we're only talking about a preliminary injunction here, right?

David Greene 1:04

We are talking about a preliminary junction, that's correct.

Unknown 1:08

How would you be irreparably Injured. by the denial of a preliminary injunction If the earliest that assuming you're right that a redistricting could go into effect would be twenty twenty.

David Greene 1:23

Well, uh Yor Your Honor, we don't concede for purposes of this appeal that it's too late to enter uh relief in time for the twenty eighteen election. Uh Congress has enacted a statute uh that deals with these sorts of circumstances uh that this court addressed in Bush against I'm sorry, not Bush against Fera, but the statute is too USC, uh too A C Is there

Unknown 1:44

anything in the record to indicate that e experts will tell you, Oh, this is com this is possible? It's

David Greene 1:51

That it's possible to enact a new that it

Unknown 1:53

is possible to comply with the injunction in time for the two thousand eighteen election.

David Greene 1:56

There's nothing in the record about that, Your Honor, but that also isn't an issue that the district court has been in given an opportunity to address yet.

Unknown 2:03

Well, but you're asking us to then just just assume it.

David Greene 2:06

Well, uh as a matter of fact, Your Honor, I think what we are asking for is just a remand for reconsideration of the preliminary injunction motion in light of what we take to be the proper legal standards. And so if you even

Elena Kagan 2:17

the equitable principles involved in an injunction Mrs you waited an awfully long time to bring this suit. From the change. In twenty eleven, was it? Um should that factor into our consideration of whether to uphold or not uphold your request?

David Greene 2:37

So I think there are two things to say about that, Your Honor. The first is we don't think that that is an issue that's really properly before this court unless this court concluded that it would be an abuse of discretion not to uh deny the preliminary injunction on that basis. That is a function of the abusive discretion standard r of review and the fact that the lower court hasn't had an opportunity yet to address that question. I don't think we finished

John G. Roberts 2:59

um It's not just that equitable factor, there are other factors uh under the preliminary injunction standard. uh including irreparable harm. And uh because of your delay, elections have been held under this district in Two thousand twelve, two thousand fourteen, and two thousand sixteen, right?

David Greene 3:21

Well, I I uh i it is true that those elections have been held. I would not say that it is attributable to our delay in bringing the suit.

John G. Roberts 3:27

Well no, but it is uh evidence of uh the the c the question of whether you have been irreparably harmed, uh uh that you have been willing to let go, the elections in twenty twelve, twenty fourteen and twenty sixteen suggest that maybe 2018, you are not going to be irreparably harmed in a broader sense. Obviously, you argue you would be in this particular election, but if you have been willing to accept that harm in three different cycles. I don't know if we should get Uh uh concerned about irreparable harm for one more.

David Greene 3:59

Well, I I guess I I have a few things to say about that. The first is this lawsuit was initially filed in twenty thirteen, true after one election had taken place, but uh district courts have entered injunctions against the enforcement of congressional districting maps after elections have taken place many times in the past.