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The Supreme Court in October 2015. (AP Photo/Carolyn Kaster)

Supreme Court revives law student’s Md. redistricting challenge

A unanimous U.S. Supreme Court on Tuesday revived a Republican-backed First Amendment challenge to Maryland’s pro-Democratic congressional redistricting.

The high court held that a Baltimore federal judge invalidly dismissed the claim on his own, finding U.S. District Judge James K. Bredar was required by statute to submit the claim to a three-member panel of district court judges.

On remand, the three-judge panel will review the claim by three Maryland voters that the state’s overwhelmingly Democratic redistricting tramples on their rights to free speech and political association.

Of Maryland’s eight congressional districts, seven are dominated by Democratic voters, a fact reflected in the party affiliation of the state’s U.S. House delegation.

In its 9-0 decision, the high court did not address the merits of the voters’ constitutional challenge, only Bredar’s unilateral dismissal of the claim without submitting the issue to the three-judge panel. The justices held that the dismissal was in blatant violation of the federal Three-Judge Court Act, which states that a three-judge district court panel “shall be convened” for actions challenging congressional redistricting.

“That text’s initial prescription could not be clearer,” Justice Antonin Scalia wrote for the court. “Nobody disputes that the present suit is ‘an action … challenging the constitutionality of the apportionment of congressional districts.’ It follows that the district judge was required to refer the case to a three-judge court, for Section 2284(a) [of the act] admits of no exception, and the mandatory ‘shall’ … normally creates an obligation impervious to judicial discretion.”

Michael B. Kimberly, the voters’ attorney, said he was not surprised by the high court’s unanimity.

“This was a fairly straight-forward application of statutory interpretation,” said Kimberly, of Mayer Brown LLP in Washington. “We’re eager to get this moving before the three-judge panel.”

David Nitkin, spokesman for Maryland Attorney General Brian E. Frosh, said in an email the high court’s decision “provided clarity on the procedure to be followed in redistricting challenges.”

“The case did not address the substance of congressional maps in Maryland, and the Office of the Attorney General will continue to fulfill our obligation to provide representation in support of the approved district maps,” Nitkin said.

Gerrymandered districts

The Three-Judge Court Act established and allows appeals from the three-judge district-court 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.

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 granted in April 2014 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.

The justices issued their decision in Shapiro, et al., v. McManus et al., No. 14-990.

Though the issue before the Supreme Court was procedural, both Frosh and Kimberly addressed the now-revived constitutional claim in papers filed with the justices.

Frosh said the First Amendment challenge to congressional redistricting has already been rejected by the Supreme Court.

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.

Pointing to Kennedy

However, the voters’ attorney said 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,” added Kimberly, quoting Kennedy.

In response, Frosh noted that 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.”