WASHINGTON — The Supreme Court is taking on a case about partisan advantage in redistricting that could have ramifications in Maryland.
The justices on Monday said they will decide whether Republican lawmakers in Wisconsin drew electoral districts so out of whack with the state’s political breakdown that they violated the constitutional rights of Democratic voters.
It’s the high court’s first case on what’s known as partisan gerrymandering in more than a decade.
In Wisconsin, Democrats hope a favorable decision will help them cut into GOP electoral majorities. Election law experts say the case is the best chance yet for the high court to put limits on what lawmakers may do to gain a partisan advantage in creating political district maps.
The case will be argued in the fall.
In Maryland, a federal district court is weighing a GOP challenge to a congressional district as unconstitutionally favorable to Democrats.
Republican voters claim the Democratic-controlled legislature deliberately redrew Maryland’s 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.
History of the case
The district had been represented by U.S. Rep. Roscoe Bartlett prior to its being redrawn following the 2010 U.S. 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, the challengers’ attorney, Michael B. Kimberly, Kimberly wrote in papers filed last 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,” wrote Kimberly, of Mayer Brown in Washington. “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.
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.”
The case before a three-judge panel in the district court is O. John Benisek et al. v. Linda H. Lamone et al., 1:13-cv-03233-JKB.
The Wisconsin case
In Wisconsin, a three-judge court struck down Wisconsin’s legislative districts in November and ordered new maps drawn in time for the 2018 elections. The Supreme Court split 5-4 on Monday in ordering that work to be halted while the high court considers the Wisconsin case.
The Constitution requires states to redo their political maps to reflect population changes identified in the once-a-decade census. The issue of gerrymandering — creating districts that often are oddly shaped and with the aim of benefiting one party — is centuries old. The term comes from a Massachusetts state Senate district that resembled a salamander and was approved in 1812 by Massachusetts Gov. Elbridge Gerry.
Both parties have sought the largest partisan edge when they control redistricting. Yet Democrats are more supportive of having courts rein in extreme districting plans, mainly because Republicans control more legislatures and drew districts after the 2010 census that enhanced their advantage in those states and in the House of Representatives.
The challengers to the Wisconsin districts said it is an extreme example of redistricting that has led to ever-increasing polarization in American politics because so few districts are genuinely competitive between the parties. In these safe seats, incumbents tend to be more concerned about primary challengers, so they try to appeal mostly to their party’s base.
“Partisan gerrymandering of this kind is worse now than at any time in recent memory,” said Paul Smith, who is representing the challengers to the GOP plan in Wisconsin.
Defenders of the Wisconsin plan argued that the election results it produced are similar to those under earlier court-drawn maps. They said the federal court overstepped its bounds and judges should stay out of an inherently political exercise.
“As I have said before, our redistricting process was entirely lawful and constitutional, and the district court should be reversed,” Wisconsin Attorney General Brad Schimel said.
The justices should correct the lower court’s “flawed analysis before it spreads to other jurisdictions and interferes with the states’ fundamental political responsibilities,” Texas Solicitor General Scott Keller wrote for 12 Republican-dominated states that are backing Wisconsin.
The issue has torn the court for decades. Some justices believe courts have no role to play in a matter best left to elected officials. Others say courts should step in. In 2004, Justice Anthony Kennedy staked out a position somewhere between those two views, saying courts could referee claims of excessively partisan redistricting, but only if they can find a workable way to do so. In that case and again in 2006, Kennedy didn’t find one.
The Supreme Court has never struck down districts because of unfair partisan advantage, although it has intervened frequently in disputes over race and redistricting over the past 50 years.
Daily Record legal affairs writer Steve Lash and The Associated Press contributed to this story.