A divided three judge U.S. District Court panel on Thursday stayed 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.
The panel, in its 2-1 decision, said the high court’s decision in the Wisconsin case — Gill v. Whitford — will help the judges determine whether Maryland’s Democratic-controlled legislature violated the rights of Republican voters by redrawing the 6th Congressional District to favor a Democratic candidate.
The Supreme Court’s decision, expected next year, will clarify whether and when political gerrymanding can be so excessive as to encroach on the minority party’s First Amendment right to political association, Judge James K. Bredar wrote for the split panel.
The majority rejected the Maryland challengers’ argument that their case, which addresses a single congressional district, is “fundamentally different” from the Wisconsin case, which applies to legislative districts statewide — and thus the challenge does not need to await a Supreme Court ruling.
“Fundamentally, these cases are two sides of the same coin: both propose a standard by which federal courts might adjudicate claims of political gerrymandering,” Bredar wrote for himself and Judge George L. Russell III. “Both cases invoke the First Amendment as a source of constitutional authority. While the Supreme Court’s decision in Whitford may not prove dispositive of (the Maryland case), the court’s analysis will shed light on critical questions in this case, and the parties and the panel will be best served by awaiting that guidance.”
Michael B. Kimberly, the Republican challengers’ attorney, said he and his clients were not “tremendously surprised” by the panel’s decision because Bredar and Russell had voiced support for the state’s stay request during a hearing last month.
“We are disappointed,” added Kimberly, of Mayer Brown LLP in Washington.
In a statement, the Maryland attorney general’s office said it expects the challengers to appeal to the Supreme Court and “will respond in the appropriate time frame.”
In dissent, Judge Paul V. Niemeyer called a stay improper because it is fairly clear that the Maryland General Assembly violated the First Amendment rights of Republicans in the 6th Congressional District by ensuring a Democrat’s election. Under the redistricting, 66,000 Republicans were removed from the district and 24,000 Democratic voters were added, wrote Niemeyer, a 4th U.S. Circuit Court of Appeals judge.
“I submit that only one conclusion can be drawn from these accepted facts – that a degree of vote dilution significant enough to place Republican voters at a concrete electoral disadvantage was caused by the conduct that the state specifically intended,” Niemeyer wrote, adding that the majority is under the “bizarre notion” that the redistricting could be considered legally benign.
“Under such reasoning, a defendant who intentionally poisons a victim’s drink could not be found to cause the death because the victim might have died from a heart attack anyway,” Niemeyer added. “Yet this is the argument the majority embraces.”
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.
Assistant Maryland Attorney General Sarah W. Rice, in urging the panel to grant a stay, told the judges at the hearing last month that “no matter what happens in Gill, we are going to learn something important about the contours of this case.”
Kimberly, the challengers’ attorney, called Democratic claims that the redrawing was benign “an effort to window dress what was really going on: bare-knuckle politics.”
The panel majority, though granting the stay, called political gerrymandering “a noxious and destructive practice.”
“The segregation of voters by political affiliation so as to achieve purely partisan ends is repugnant to representative democracy,” Bredar wrote.
“This court will not shrink from its responsibility to adjudicate any viable claim that such segregation has occurred in Maryland,” he added. “But in order to correctly adjudicate such a claim, the court must first insure that it is proceeding on the correct legal foundation – that in measuring the legality and constitutionality of any redistricting plan in Maryland it is measuring that plan according to the proper legal standard. Following the Supreme Court’s decision in Whitford, this panel will be better equipped to make that legal determination and to chart a wise course for further proceedings.”
The case is O. John Benisek et al. v. Linda H. Lamone et al., No. JKB-13-3233.