A three-judge U.S. District Court panel appears poised to stay a Republican congressional redistricting challenge in Maryland pending the U.S. Supreme Court’s resolution of whether GOP lawmakers in Wisconsin drew legislative districts so contrary to the state’s political breakdown that they violated the constitutional rights of Democratic voters.
Two of the three judges strongly indicated Friday their preference to await the high court’s decision in the Wisconsin case, Gill v. Whitford, before determining whether Maryland’s Democratic-controlled legislature violated the rights of Republican voters by redrawing the 6th Congressional District to favor a Democratic candidate. Judges James K. Bredar and George L. Russell III said they are loath to proceed without greater guidance from the Supreme Court on whether and when political gerrymandering can be so excessive as to encroach on the minority party’s First Amendment right to political association.
The third judge, Paul V. Niemeyer of the 4th U.S. Circuit Court of Appeals, said the high court has held that excessive gerrymandering raises constitutional concerns and that the Republican challengers should be allowed to proceed with their claim that the legislature intentionally and unconstitutionally flipped what had been a solidly GOP district into one that clearly favors the Democrats.
The Supreme Court has agreed to hear arguments in Gill during its 2017-2018 term, which begins in October. A decision is expected by next summer.
The three judges appeared just as split on whether to grant the Republican challengers’ request that the district court issue a preliminary injunction, essentially scrapping the heavily Democratic 6th District and order the redrawing of the state’s congressional map well ahead of the Feb. 27 candidates’ filing deadline for next year’s congressional election.
The judges indicated their diverse positions during arguments pitting the GOP challengers against Maryland Board of Elections Administrator Linda H. Lamone at the federal courthouse in Baltimore.
Pressing the challengers’ case, attorney Michael B. Kimberly urged the judges not to stay proceedings pending the Supreme Court’s decision. Kimberly distinguished the case before the high court from the current litigation, saying the Wisconsin claim is a statewide challenge to legislative redistricting while the Maryland case involves a single congressional district.
But Bredar interjected that both cases address the constitutionality of gerrymandering and thus high-court guidance is presumably necessary before the district court panel can proceed.
Now that the issue of its constitutionality is “squarely in the Supreme Court’s lap… what is the utility of the lower courts in this country continuing to hit their heads against the wall?” Bredar said. “Why don’t we just let that play itself out?”
Assistant Maryland Attorney General Sarah W. Rice, in pressing the court to grant a stay, asked if it was “worth the expenditure of effort” to continue to litigate the state’s case without a Supreme Court ruling on the constitutional limits of gerrymandering.
“No matter what happens in Gill, we are going to learn something important about the contours of this case,” Rice told the panel.
In the Maryland case case, Republican voters claim the General Assembly deliberately redrew the state’s 6th District following the 2010 U.S. Census to include a significant swath of Democrat-rich Montgomery County to dilute the GOP vote from the state’s five western counties, thereby ensuring 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.)
U.S. Rep. Roscoe Bartlett, the Republican who had represented the district since 1993, lost his re-election bid to John Delaney, a Democrat, in 2012, who then handily won re-election in 2014 and 2016.
Kimberly, in pressing the panel for a preliminary injunction, told the judges that claims by Maryland’s legislative leaders that the redrawing of the district was benign are “an effort to window dress what was really going on: bare-knuckle politics.” The Democratic leadership even retained redistricting consultants to ensure the redrawn district was heavily Democratic, added Kimberly, of Mayer Brown LLP in Washington, D.C.
But Bredar and Russell said stacking a congressional district with members of a specific party is not necessarily an unconstitutional restraint on political association, as people often vote for candidates from other parties.
“Voters are fickle,” Bredar said.
Consultants can give their best advice but they “can’t look into a voter’s mind,” Russell said. “We don’t know how they voted or why they voted the way they did.”
Kimberly responded that redistricting consultants have a very high success rate for the political parties that retain them, particularly in this case.
The Democratic leadership achieved “the complete upending of the political complexion of the 6th Congressional District,” Kimberly said.
Niemeyer, unlike Bredar and Russell, appeared receptive to the argument that the Democratic leadership’s successful effort to turn the 6th District into a Democratic stronghold by diluting the GOP vote is constitutionally suspect.
“These are smart politicians,” Niemeyer said of then-Gov. Martin O’Malley, Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch. “They knew what they were doing and they accomplished it.”
Rice, in pressing the state’s case, said the Democratic leaders were merely intending to create a competitive district and not one that would be solidly Democratic – an argument Niemeyer deemed “remarkable.”
The judges indicated that a ruling could be handed down early next week.
The case is O. John Benisek et al. v. Linda H. Lamone et al., No. JKB-13-3233.