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GOP foes of Md. congressional district seek to keep high-court option open

In this Feb. 13, 2016, file photo, people stand on the steps of the Supreme Court at sunset in Washington.  (AP Photo/Jon Elswick, file)

In this Feb. 13, 2016, file photo, people stand on the steps of the Supreme Court at sunset in Washington. (AP Photo/Jon Elswick, file)

Republicans challenging the constitutionality of the pro-Democratic redrawing of a Maryland congressional district have told the U.S. Supreme Court their claim differs significantly from a case pending before the justices, which asks if Wisconsin’s GOP lawmakers drew legislative districts so contrary to the state’s political breakdown that they violated the rights of Democratic voters.

The differences mean whatever decision the Supreme Court reaches in the Wisconsin appeal should not foreclose the justices from considering and rendering a decision in the Maryland case in the likely event it reaches them, attorneys for the Republicans stated in a friends-of-the-court brief.

The lawyers’ argument mirrors one they made last month in urging a federal district court panel to permit the Republicans’ claim to proceed rather than be stayed pending a Supreme Court decision in the Wisconsin case that might not be reached until next year. The Maryland attorney general’s office, in pressing the panel to grant a stay, said the high court’s ruling in the Wisconsin case will necessarily address the constitutional contours of gerrymandering.

The three-judge panel has not yet ruled on the motion for a stay in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. JKB-13-3233. The panel’s decision in the case could be appealed directly to the Supreme Court.

In their brief to the justices, the Maryland Republicans said they allege the Democratic-led General Assembly violated their First Amendment right to political association and expression by redrawing a formerly GOP-dominated 6th Congressional District to ensure the election of a Democrat and in “retaliation” for having supported the Republican incumbent.

By contrast, the Wisconsin appeal at the Supreme Court alleges a constitutional violation of equal protection in that the GOP’s legislative redistricting — on a statewide basis — deprived Democrats of representation in the legislature commensurate with their population in the state, the Maryland Republicans’ attorneys stated in the brief.

“Because amici (the Republicans) are pressing a single district, individualized-injury gerrymandering claim – one that suffers from none of the purported infirmities of the statewide claim at issue here – they have an interest in ensuring that the (Supreme) Court’s consideration of the questions presented is fully informed,” stated the attorneys, Michael B. Kimberly and Paul W. Hughes of Mayer Brown LLP in Washington, D.C. “They write only to stress that the court, in addressing those issues, should be aware of (and endeavor not to prejudge) amici’s very different First Amendment retaliation claim.”

In the Maryland 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.

The Supreme Court will hear arguments Oct. 3 in the Wisconsin case, Gill v. Whitford,  No. 16-1161.

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