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Wisconsin ruling invigorates GOP challenge to Democratic Md. district

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Republican voters have alleged the General Assembly “expressly and deliberately considered the voting histories and political affiliations of Republican voters” in redrawing the 6th Congressional District in 2010 to include parts of Montgomery County, resulting then-Rep. Roscoe G. Bartlett losing to John Delaney, above. (AP/File photo)

A federal court’s striking down of Wisconsin’s legislative redistricting as unconstitutionally Republican-centric has invigorated a pending GOP challenge to a Maryland congressional district as unconstitutionally favorable to Democrats, an attorney for the challengers said Monday.

A three-judge district court panel in Wisconsin found last week the Republican-led legislature violated the equal protection and political association rights of Democratic voters in crafting district lines ensuring an overwhelming GOP majority in the statehouse. In Maryland, Republican voters claim the Democratic-controlled legislature deliberately redrew the 6th Congressional District to dilute the GOP vote and ensure the election of a Democratic representative over the then-Republican incumbent. (The lawsuit initially challenged districts statewide but was amended to focus solely on the 6th District.)

The GOP challengers claim the General Assembly’s action violated their First Amendment right to political association, as they were essentially punished for their political beliefs, much like the Democratic voters in Wisconsin had been.

“We are obviously very encouraged by the outcome in that (Wisconsin) case,” said attorney Michael B. Kimberly, of Mayer Brown in Washington, D.C. “It is certainly encouraging to see another court in another state strike down an illegal gerrymander.”

Specifically, Kimberly alleges the General Assembly engaged in unconstitutional “First Amendment retaliation” against Republican voters in the 6th District.

The district had been represented by U.S. Rep. Roscoe Bartlett prior to its being redrawn following the 2010 Census. The district, which had consisted largely of Maryland’s five GOP-rich western counties, was redrawn to include a significant swath of Democrat-rich Montgomery County, which in turn resulted in Bartlett’s re-election defeat in 2012 to John Delaney, a Democrat.

The General Assembly “expressly and deliberately considered the voting histories and political affiliations of Republican voters” in redrawing the 6th District, Kimberly wrote in papers filed earlier this year with the U.S. District Court in Baltimore.

“Plaintiffs and voters throughout the nation should be able to organize politically, to support political campaigns, to register with their preferred political parties, and to vote in support of their preferred candidates without fear that – if they are successful in electing the public officials of their choice – they will be targeted and retaliated against by the legislature for the exercise of their First Amendment rights,” Kimberly wrote. “The legislature redrew the lines of the 6th District with an intent to burden and punish the voters, including plaintiffs, for their First Amendment protected conduct.”

Democrats hold a 2-1 majority over Republicans in Maryland. Democrats also hold seven of Maryland’s eight congressional seats, compared to six of the eight seats prior to the redistricting.

Back to Supreme Court

In papers filed with the district court, Maryland Attorney General Brian E. Frosh countered that the redistricting merely changed a safe Republican seat to a secure Democratic seat, without violating the First Amendment rights of GOP voters.

“Rather than identify any form of protected expression that has been abridged by the state (redistricting) plan, the plaintiffs allege that the loss of a safe Republican district establishes that a constitutional violation has occurred,” Frosh wrote in a filing cosigned by Assistant Maryland Attorneys General Jennifer L. Katz and Jeffrey L. Darsie. “In so doing, the plaintiffs identify no constitutional principle that requires that the Republican Party have two safe districts in Maryland, or that the creation of a competitive or Democratic-leaning district from a previously Republican-leaning or safe district, violates their associational, expressive, or representational rights.”

A three-judge district-court panel is expected to hear arguments and render a decision in the 6th District case next year.

That ruling, regardless of the victor, is expected to be appealed directly to the U.S. Supreme Court, which last December revived the Republicans’ challenge on a procedural matter.

In that decision, the justices unanimously held that U.S. District Judge James K. Bredar had invalidly dismissed the Republicans’ claim on his own, , though the dismissal was in accord with then-existing 4th U.S. Circuit Court of Appeals precedent.

The Supreme Court did not address the merits of the voters’ constitutional challenge. 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.

The three judge panel subsequently rejected Frosh’s motion to have the case dismissed.

Judge Paul V. Niemeyer, writing for a 2-1 majority in August, said federal courts are authorized to enforce the rule of “one person, one vote” and may strike down acts of political gerrymandering, which involves diluting the opposition’s voting strength.

Niemeyer, who normally sits on the 4th U.S. Circuit Court of Appeals, was joined by U.S. District Judge George L. Russell III in allowing the case to proceed to trial.

Bredar dissented, calling gerrymandering a political issue that is “not justiciable.”

The case before the district court is O. John Benisek et al. v. Linda H. Lamone et al., 1:13-cv-03233-JKB.


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