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O’Malley must testify in GOP redistricting challenge, judge says

Former Maryland Gov. Martin O'Malley defended the 'zero tolerance' approach again Wednesday, saying the Justice Department Report report did not account for improvements, including "historic reductions in violent crime" under his watch. (Jim Cole/AP file photo)

Former Maryland Gov. Martin O’Malley (Jim Cole/AP file photo)

ANNAPOLIS – Former Maryland Gov. Martin O’Malley must provide testimony in a challenge by Republicans to a congressional district they allege was unconstitutionally redrawn to favor Democrats.

U.S. District Judge James K. Bredar last week rejected arguments by O’Malley, a Democrat, that he cannot be compelled to testify regarding his discussions leading to the redrawing of the 6th Congressional District in 2011. O’Malley had argued that he has “executive privilege” from being hauled into a court proceeding to explain his discussions.

Bredar’s decision came just days after he and two other judges on the district court upheld his earlier ruling that Senate President Thomas V. Mike Miller Jr. and House Speaker Michael E. Busch must testify in the Republicans’ lawsuit. The three-judge panel rejected the General Assembly leaders’ argument that they had legislative privilege against having to testify regarding their votes in favor of the redrawn district.

The “significance” of determining whether the redistricting was unconstitutional trumps the “intrusion” into the legislative process and the “possible chilling effect on legislative action,” wrote 4th U.S. Circuit Court of Appeals Judge Paul V. Niemeyer, who was sitting as a district court jurist and was joined by Judges George L. Russell III and Bredar.

Bredar, noting that decision, stated in his memorandum opinion on O’Malley’s request that he “accepts the existence of executive privilege, but movant (O’Malley) has failed to explain how that privilege applies in the facts and circumstances of the present case. Accordingly, movant has supplied the court with no basis for protecting him from the plaintiffs’ deposition questions on this theory.”

O’Malley and the legislative leaders are represented in the case by the Maryland attorney general’s office.

The Republican voters seek redress for a congressional district they believe was redrawn in violation of their First Amendment right to political association, saying they were essentially punished for their political beliefs.

The 6th Congressional District had been represented by U.S. Rep. Roscoe Bartlett, a Republican, prior to its being redrawn following the 2010 census and while O’Malley was governor. 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 re-election defeat in 2012 to 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 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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