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Maryland residents Stephen Shapiro, right, and John Benisek stand in front of the Supreme Court in Washington in 2015. (Jessica Gresko/Associated Press)

Justices divided over Md. redistricting lawsuit

WASHINGTON – The fate of a Republican-backed First Amendment challenge to Maryland’s pro-Democratic congressional redistricting will rest on the U.S. Supreme Court’s determination of whether a Baltimore federal judge validly dismissed the claim on his own or was required by statute to submit it to a three-member panel of district court judges.

The justices appeared to be as divided as opposing counsel Wednesday regarding whether U.S. District Judge James K. Bredar had unilateral authority to dismiss the constitutionality claim by three voters that Maryland’s overwhelmingly Democratic redistricting tramples on their rights to free speech and association.

Of Maryland’s eight congressional districts, seven are dominated by Democratic voters and are represented by Democrats. Democrats outnumber Republicans by more than 2-to-1 statewide.

Counsel for the three challengers argued their claim was not frivolous, insubstantial or inescapably foreclosed by prior Supreme Court decisions. A district judge can dismiss a congressional redistricting challenge only if there “could not be any debate” that the claim was “obviously frivolous” and thus unworthy of a three-judge review, said Michael B. Kimberly, of Mayer Brown LLP in Washington.

But Maryland Assistant Attorney General Steven M. Sullivan countered that each district court judge has latitude to dismiss congressional redistricting challenges they deem meritless without referring the matter to a three-judge panel.

Congress, in calling for three-judge panels in redistricting cases, sought “not to open the floodgates” to challenges, Sullivan said. The federal Three-Judge Court Act enables individual judges to find “no reason to trouble” their colleagues if the redistricting claim was insubstantial or contrary to settled law, Sullivan told the justices.

‘Fuzzy rule’

The act established and allows appeals from the three-judge panels to go directly to the Supreme Court without review by a federal circuit court of appeal. The act applies most commonly to federal claims brought under the Voting Rights Act and challenges to congressional redistricting.

Chief Justice John G. Roberts, in apparent agreement with Sullivan’s position, criticized as unclear Kimberly’s list of “adjectives” describing when a case lacks sufficient merit to warrant dismissal by a single judge.

“You call it a rule” of dismissal, Roberts said. “It’s not so much a rule as a sense that something is ‘really wrong’” with the redistricting challenge, he added.

“That’s a fuzzy rule,” Roberts said.

But Justices Elena Kagan and Stephen G. Breyer appeared to side with the challengers.

Dismissals by district court judges in congressional redistricting cases are generally reserved for claims that are “completely ridiculous” or “just a laughingstock,” Kagan said, adding that perhaps a three-judge panel should review the challenge here.

Breyer said a single judge should not dismiss a case when any doubt exists as to the merit of the challengers’ argument. The question a district court judge must ask before dismissing a case is not whether the challengers are “clearly right,” but whether they were “clearly wrong,” Breyer added.

Kimberly urged the high court to remand the case to the U.S. District Court in Baltimore with instructions that a three-judge panel determine if the constitutional challenge should be dismissed.

The justices are expected to render their decision by the end of June. The case is Shapiro, et al. v. McManus, No. 14-990.

Constitutional questions

The Supreme Court heard arguments one day after a panel appointed by Maryland Gov. Larry Hogan, a Republican, called for the creation of an independent commission to redraw congressional districts after the 2020 census. The recommendation faces an uncertain future in Maryland’s Democratic-controlled General Assembly.

Though the issue before the Supreme Court is procedural, both the challengers and Maryland Attorney General Brian E. Frosh addressed the constitutional question as well in papers they filed with the high court.

Even if the Three-Judge Court Act limits a district judge’s authority, Bredar correctly dismissed the claim himself because the First Amendment challenge to congressional redistricting has already 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, Kimberly argued that the Supreme Court has never overtly rejected a First Amendment challenge to redistricting.

Kimberly cited Justice Anthony M. 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,” Kimberly wrote, quoting Kennedy.

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

Democratic power

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.”

“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.”

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 U.S. Circuit Court of Appeals affirmed the dismissal six months later, prompting the voters’ appeal to the Supreme Court.