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Frosh urges justices to reject GOP challenge to Md. congressional district

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)

The Supreme Court should reject a challenge by Maryland Republicans that the Democratic-led General Assembly unconstitutionally gerrymandered a congressional district because the GOP cannot show it was redrawn to replace a Republican U.S. representative with a Democratic one, state Attorney General Brian E. Frosh stated in papers filed Tuesday with the justices.

Frosh submitted the brief in response to the Republicans’ request the justices hear their claim that the 6th Congressional District violates the First Amendment right of GOP voters to political association because the legislature deliberately redrew the district to ensure the election of a Democrat and in “retaliation” for the district having elected a Republican.

Frosh, a Democrat, argued the Republicans cannot show that the legislature penalized GOP voters because of their voting record.

Legislators do not know for whom an individual voted and party “registration does not convey that knowledge; people do not necessarily vote for the candidate of the party for which they registered,” Frosh wrote to the justices. “If registration determined voting history, Governor Larry Hogan, a Republican, could not have been elected in Maryland, where registered Democrats outnumber registered Republicans by nearly 2:1.”

But Michael B. Kimberly, the Republicans’ attorney, has said the legislature’s redrawing of the district was not benign but “bare-knuckle politics” to ensure the Democratic defeat of a GOP incumbent. Kimberly is with Mayer Brown LLP in Washington.

The Republicans’ bid for Supreme Court review followed the decision of a divided three-judge, federal district court panel in August to stay the GOP challenge pending the justices’ resolution of a similar appeal from Wisconsin, which they heard Oct. 3 but likely will not decide until at least December.

In September, the Supreme Court rejected without comment the Republicans’ bid to accept their request for review and hear their appeal on an expedited basis so that the 6th District, if found unconstitutional, could be redrawn well in advance of the parties’ primary elections in June.

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.

Frosh said Tuesday in court filings that the drawing of a congressional district is an inexact science as a voter’s disclosed party affiliation provides no indication to the legislature of where he or she falls on the political spectrum.

“Republicans who identify as more moderate in their views, for example, may have had their votes diluted under past configurations of the Sixth District and therefore welcome the new plan no less than the district’s Democrats do,” Frosh wrote. “The fluidity of American political identification and ideological alignment ensures that any line-drawing in this arena will inevitably result in winners and losers potentially unseen or unimagined by the courts and litigants engaged in any particular conflict.”

Frosh’s brief was cosigned by Assistant Attorneys General Sarah W. Rice and Jennifer L. Katz, as well as Solicitor General Steven M. Sullivan, the counsel of record before the Supreme Court.

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.

The justices have not yet scheduled a vote on the Republicans’ request for review. The case is docketed at the Supreme Court as O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.

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