The U.S. Supreme Court on Wednesday rejected without comment a bid by Maryland Republicans for the justices’ expedited consideration of their challenge to a congressional district as being unconstitutionally gerrymandered.
The Republicans had urged the justices to hear – on a rarely granted expedited basis – their claim that the 6th Congressional District violates the First Amendment rights of GOP voters to political association because the Democratic-led General Assembly deliberately redrew it to ensure the election of a Democratic U.S. Representative and in “retaliation” for the district having elected a Republican.
Maryland Attorney General Brian E. Frosh, a Democrat who rejects the claimed constitutional violation, responded Monday by telling the justices not to go so fast and stick to their normal schedule of reviewing requests for their review.
The Republicans’ bid for expedited Supreme Court review followed the decision of a divided three-judge, federal district court panel last month to stay the GOP challenge pending the justices’ resolution of a similar appeal from Wisconsin, which they will hear Oct. 3 and likely not decide until at least December. In its 2-1 decision, the panel also rejected the Republicans’ bid for an emergency court order that the 6th District be redrawn to bring in more Republican voters in advance of next year’s primary and general elections.
The Republican challengers, in their Supreme Court appeal, had urged the justices to reschedule the Wisconsin case for a date in November and hear their appeal the same day due to the similarity of issues and the need for a “speedy” resolution because of the approaching congressional elections.
The Supreme Court denied the motion to expedite consideration in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.
In the Wisconsin case, Gill v. Whitford, the Supreme Court will consider 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. Thus, hearing the Wisconsin and Maryland cases on the same day “would present the court with a broader spectrum and more substantial record upon which to consider the issues inherent in partisan gerrymandering challenges,” wrote the Republicans’ attorney, Michael B. Kimberly, in ill-fated papers filed with the high court. “Indeed, consideration of Gill on its own, uninformed by full briefing of the merits in this case, could lead the court to inadvertently overlook points or make statements that confuse the law or foreclose meritorious claims.”
Frosh, in his response, pressed the justices to consider the Republicans’ request for review under the high court’s normal schedule, stating they did not challenge the redistricting for more than a year after the 2012 election — the first one held under the redrawn district — and waited even longer to seek an injunction.
“The sense of urgency expressed in the motion to expedite is belied by the unhurried way the plaintiffs have heretofore chosen to litigate this challenge to the congressional redistricting plan enacted by the Maryland General Assembly in 2011,” Frosh wrote in papers co-signed by Maryland Solicitor General Steven M. Sullivan, the counsel of record at the high court. “The plaintiffs watched as three successive congressional elections occurred under the 2011 redistricting plan, without any effort from them to seek a preliminary injunction.”
Kimberly, in a Supreme Court filing Tuesday, responded that “allowing the appeal to proceed in the normal course would risk running down the clock, possibly precluding the relief the plaintiffs seek” in advance of next year’s elections. Kimberly is with Mayer Brown LLP in Washington.
The General Assembly redrew the 6th District following the 2010 U.S. Census to include a significant swath of Democrat-rich Montgomery County, which the Republicans claim was a deliberate effort to dilute their vote from the state’s five western counties, thereby ensuring the election of a Democratic representative over the then-GOP 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.