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Miller, Busch must testify in redistricting case, panel affirms

Steve Lash//March 16, 2017

Miller, Busch must testify in redistricting case, panel affirms

By Steve Lash

//March 16, 2017

House Speaker Michael Busch, left, and Senate President Miller sit side by side during the 2017 Annapolis Summit. (The Daily Record / Maximilian Franz)
House Speaker Michael Busch, left, and Senate President Miller sit side by side during the 2017 Annapolis Summit. (The Daily Record / Maximilian Franz)

ANNAPOLIS – The General Assembly’s Democratic leaders must provide testimony in a challenge by Republicans to a Maryland congressional district they allege was unconstitutionally redrawn to favor Democrats.

A three-judge U.S. District Court panel this week rejected arguments by Senate President Thomas V. Mike Miller Jr. and House Speaker Michael E. Busch that they cannot be compelled to testify regarding what their motives were in voting to approve the redrawn 6th District in 2011. Miller and Busch had argued that they have “legislative privilege” from being hauled into a court proceeding to explain their votes.

The judges held that the “significance” of determining whether the redistricting was unconstitutional trumps the “intrusion” into the legislative process and the “possible chilling effect on legislative action.” The panel’s ruling Monday upheld an order for the legislators’ testimony issued last month by one of its members, U.S. District Judge James K. Bredar.

The Maryland attorney general’s office is representing Miller and Busch in the case. Raquel Guillory Coombs, a spokeswoman for the office, declined to comment Thursday on the panel’s decision.

The judges said the relevance of the leaders’ testimony is great and the availability of other evidence is small regarding the Republicans’ claim that the Democratically controlled legislature deliberately redrew the 6th District to dilute the GOP vote and ensure the election of a Democratic representative over the then-Republican incumbent.

“The plaintiffs have alleged that the method by which certain Maryland voters selected their congressional representative denied a large portion of those voters their constitutional rights, and few issues could be more serious to preserving our system of representative democracy,” wrote 4th U.S. Circuit Court of Appeal Judge Paul V. Niemeyer, who was sitting as a district court jurist and was joined by Judges George L. Russell III and Bredar.

The panel said legislative privilege is intended to protect legislators from being sued individually for their legislative actions, such as what is said during bill debates or votes.

In this case, however, the Republicans are suing not the legislators for money damages but the state for a redress of a congressional district they believe was drawn in violation of their First Amendment right to political association, as they were essentially punished for their political beliefs.

The judges, citing the candor of their own conversations with law clerks, were sympathetic to the legislators’ concerns about conversations with their aides becoming public through their deposition testimony. The panel said the lawmakers will be able to file a motion for a protective order on deposed legislator-staff communications that do not provide relevant evidence in the case.

The Republicans’ request for the legislative leaders’ testimony followed the judges’ statement, in allowing the case to proceed last August, that the GOP challengers must “produce objective evidence, either direct or circumstantial that the legislature specifically intended to burden the representational rights of certain citizens because of how they had voted in the past and the political party with which they had affiliated.”

The 6th District had been represented by Rep. Roscoe Bartlett, a Republican, prior to its being redrawn following the 2010 census. The district, which had consisted largely of Maryland’s five GOP-rich northwestern counties, was redrawn to include a significant swath of Democrat-rich Montgomery County, which in turn resulted in Bartlett’s defeat in 2012 by John Delaney, a Democrat.

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.

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

The three-judge panel’s ultimate ruling is expected to be appealed directly to the U.S. Supreme Court., which in December 2015 revived the Republicans’ challenge on a procedural matter.

In that decision, the justices unanimously held that 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, 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.

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

The case before the district court is O. John Benisek et al. v. Linda H. Lamone et al., Civil Action No. 1:13-cv-03233-JKB


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