Md. redistricting challenge moves forward in federal court

Maryland residents Stephen Shapiro, right, and John Benisek stand in front of the Supreme Court in Washington in November after a hearing in their case involving redistricting heard by the high court. Shapiro and Benisek are two of three Maryland residents who initially sued claiming the state’s congressional districts, as they were redrawn in 2011, violated their First Amendment and other rights. (Jessica Gresko/Associated Press)

A challenge to Maryland’s congressional redistricting map resurrected by the Supreme Court can proceed after a motion to dismiss was denied Wednesday by a three-judge panel.

The plaintiffs raised their First Amendment challenge to the redistricting after then-Gov. Martin O’Malley signed the new map into law in 2011. 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.

The Supreme Court held in December 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 and the challenge was not “wholly insubstantial.”

The original plaintiffs, including a law school student, filed their lawsuit pro se but, on remand, were represented by counsel and filed an amended complaint refining their theory and adding plaintiffs. The state again filed a motion to dismiss the complaint; the motion was heard by a three-judge panel on July 12.

The panel, in a 2-1 vote Wednesday, denied the motion to dismiss, with Bredar dissenting.

“It’s a very gratifying opinion,” said Michael B. Kimberly, the voters’ attorney. “[The panel] clearly gave the case a lot of careful consideration and came to the same conclusions we did.”

Gov. Larry Hogan in a statement praised the panel’s ruling and said redistricting reform should not be a partisan issue. Hogan also said he would try again next year to pass legislation in the General Assembly “to end the shameful and partisan gerrymandering practices that have dominated Maryland politics for too long.”

“The fact that multiple federal judges have found legal merit in our argument is extremely encouraging, and I look forward to seeing our state lead the nation in empowering the voters of all parties,” he said.

A spokeswoman for the Maryland attorney general’s office did not respond to a request for comment.

Lacking a standard

4th U.S. Circuit Court of Appeals Judge Paul V. Niemeyer, writing for the majority, acknowledged the supervision of federal courts over a “quintessentially” political process assigned to the states, like redistricting, is limited. But courts are authorized to enforce the rule of “one person, one vote” and stop the practice of political gerrymandering, which involves diluting the oppositions voting strength, Niemeyer said.

A lack of guidance from the Supreme Court on what standard to apply to political gerrymandering claims brought under the Equal Protection Clause does not “doom a claim that the State’s abuse of political considerations in districting has violated any other constitutional provision,” Niemeyer said.

The Supreme Court has recognized that drawing boundaries to dilute the votes of certain citizens imposes a burden on their right to have an equally effective voice in elections, and purposefully drawing those boundaries infringes on the citizens’ rights and should be analyzed as a retaliation to the exercise of free speech.

The plaintiffs must allege specific intent to impose the burden, injury in the form of vote dilution and causation, according to the majority, which found the standard met by the plaintiffs.

Niemeyer was joined in denying the motion to dismiss by U.S. District Judge George L. Russell III.

Kimberly, of Mayer Brown LLP in Washington, said the quick turnaround from oral arguments in mid-July shows how seriously the court is taking the case and the judges’ understanding that the plaintiffs want to be able to move forward in the litigation.

“We feel good,” Kimberly said. “We feel confident in the final result.”

Unreliable framework

In his dissent, Bredar expressed concerns about the standard established by the majority and its applicability through the life of the case and beyond its facts to other cases.

The framework proposed by the plaintiffs was not shown to reliably identify circumstances when voters’ rights were violated and, without being able to conceive of an alternative, Bredar said the claims “not justiciable.”

“Because I conclude that Plaintiffs’ claims can never succeed, I would spare the parties the significant expense of discovery and end this case now,” he said. “Offensive as political gerrymandering may be, there is nothing to be gained (and much to be lost) in postponing the inevitable.”

Still, Bredar acknowledged the extent of gerrymandering nationwide, saying “the problem is real and widespread and that entrenched Democratic and Republican state legislatures alike exercise their control over redistricting in an effort to promote party power.”

The case is Stephen M. Shapiro et al. v. David J. McManus Jr. et al., 1:13-cv-03233-JKB.