Please ensure Javascript is enabled for purposes of website accessibility

Procedural issue trumps constitutional one in Md. redistricting challenge

The U.S. Supreme Court will hear a case this fall that involves a challenge to Maryland’s congressional redistricting as a violation of the free-speech and association rights of Republicans, as seven of the eight districts are dominated by Democratic voters.

Maryland, through Attorney General Brian E. Frosh, counters that individual district-court judges have latitude to dismiss redistricting challenges they deem meritless, without referring the matter to a three-judge panel. (The Daily Record / Maximilian Franz)

Maryland, through Attorney General Brian E. Frosh, counters that individual district court judges have latitude to dismiss redistricting challenges they deem meritless, without referring the matter to a three-judge panel. (The Daily Record / Maximilian Franz)

But the high court might not reach the underlying First Amendment issue because the specific question presented to the justices is procedural, not constitutional.

That question is whether a Baltimore federal judge validly dismissed the constitutional argument on his own or if he was required by statute to submit it to a three-judge panel of district court judges. U.S. District Judge James K. Bredar said he had unilateral authority to dismiss the case because the constitutional argument is not a claim for which courts can provide relief, a decision upheld by the 4th U.S. Circuit Court of Appeals.

But in their Supreme Court appeal, three Maryland voters argue that a district court judge must refer a redistricting challenge to a three-judge panel except when the underlying claim is frivolous, insubstantial or “inescapably foreclosed” by prior court decisions.

Maryland, through Attorney General Brian E. Frosh, counters that individual district court judges have latitude to dismiss redistricting challenges they deem meritless without referring the matter to a three-judge panel.

The Supreme Court has scheduled arguments Nov. 4 for the case, Shapiro, et al., v. McManus, No. 14-990, and is expected to render its decision by the end of June.

‘Common political goals’

Though the issue before the court is procedural, Frosh addressed the constitutional question as well in papers filed with the high court Friday.

Even if the federal Three-Judge Court Act limits a district judge’s authority, Bredar correctly dismissed the claim himself because a First Amendment challenge to congressional redistricting has previously been rejected by the Supreme Court, Frosh wrote.

A redistricting does not impede one’s free speech or association rights so long as he or she can associate “for the advance of common political goals and ideas,” Frosh wrote, quoting from the Supreme Court’s 1997 decision in Timmons v. Twin Cities Area New Party.

However, the Maryland voters argue that the Supreme Court has never overtly rejected a First Amendment challenge to redistricting.

They cite Justice Anthony Kennedy’s concurring and controlling opinion in the court’s 2004 decision in Vieth v. Jubelirer, upholding the dismissal of an equal protection challenge to Pennsylvania’s congressional redistricting after the 2000 census.

“First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” wrote Michael B. Kimberly of Mayer Brown LLP in Washington, quoting Kennedy.

Frosh, in response, noted the Supreme Court, with Kennedy’s concurrence, dismissed the constitutional challenge to Pennsylvania’s redistricting.

Frosh also defended Maryland’s redistricting, saying the Democratic dominance in seven of the eight districts is not intended to stifle Republican voices but “reflects the distribution of state party power,” as Democrats outnumber Republicans by more than 2-to-1 in the state.

“Although the petitioners complain that each of the abridged sections of the map they challenge voted strongly Republican in the 2008 presidential election, and they note that seven of the eight congressional districts are represented by Democrats, the Democratic party has long been the majority party in Maryland,” Frosh wrote. “Therefore, Maryland’s plan is a less likely vehicle for partisan discrimination than the reapportionment this court upheld in Vieth.”

Steven M. Sullivan, the attorney general’s chief of litigation, is listed as counsel of record in the case.

NAACP support

Maryland voters Stephen Shapiro, John Benisek and Maria Pycha raised their First Amendment challenge two years after then-Gov. Martin O’Malley signed the state’s redistricting map into law on Oct. 20, 2011. The voters cited U.S. District Judge Roger W. Titus’ description, in an unrelated case, of the gerrymandered districts as linking, for partisan purposes, voters “who have an interest in farming, mining, tourism, paper production and the hunting of bears … with voters who abhor the hunting of bears and do not know what a coal mine or paper mill even looks like.”

Bredar declined to submit the voters’ claim to a three-judge panel and, on April 8, 2014, granted the state’s motion to dismiss the case for failure to state a claim for which relief can be granted.

The 4th Circuit affirmed the dismissal on Oct. 7. 2014, prompting the voters’ appeal to the Supreme Court.

In their appeal, the voters have the support of the Virginia State Conference of the NAACP, which objected to having a single judge decide whether a reapportionment challenge will proceed.

In a brief to the high court, the NAACP chapter called the federal law calling for a three-judge panel to review redistricting challenges “an essential safeguard for voting rights litigants” in these cases.