The Supreme Court should strike down as unconstitutional a congressional district that Maryland’s Democratic-led General Assembly redrew to replace a Republican U.S. representative with a Democratic one, a group of the state’s Republicans stated Monday in their last filing before the justices vote on whether to hear their challenge.
The Republicans 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.
“A state may not deliberately discriminate against citizens based on their support of particular politicians or political parties,” attorney Michael B. Kimberly wrote on the Republicans’ behalf. “Such viewpoint discrimination is anathema to the First Amendment and cannot ever be what democracy requires.”
The Republicans submitted the brief to the justices in response to Maryland Attorney General Brian E. Frosh’s call for the Supreme Court to reject their appeal, stating they cannot show the legislature penalized GOP voters because of their voting records when such data is not recorded due to the sanctity of the secret ballot.
The Republicans called that argument “nonsense,” saying courts have “routinely” reviewed redrawn congressional districts for possible racial discrimination without having the voting records of individual minority voters.
The Supreme Court is scheduled to vote Dec. 1 on whether to hear the Republicans’ appeal in O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.
The justices, however, might postpone the vote pending their review of a Wisconsin case, Gill v. Whitford, in which they are considering whether GOP lawmakers in that state drew legislative districts so contrary to the state’s political breakdown that they violated the constitutional rights of Democratic voters.
The justices heard arguments in Gill in October. A decision is expected by the summer.
In their filing, the Maryland Republicans pressed the justices not to await their ruling in Gill, saying the issue of statewide legislative gerrymandering is distinct from the redrawing of a single congressional district.
“This (Supreme) Court’s resolution of those questions (in Gill) will not shed any light on plaintiffs’ single-district First Amendment retaliation claim; it would be no answer to the concrete injury inflicted upon plaintiffs here to observe that far-off voters in another district had successfully elected a Republican, or to conclude that the (redrawn) map is ‘fair’ to Marylanders on the whole, according to some abstruse statistical metric,” wrote Kimberly, of Mayer Brown LLP in Washington. “Plaintiffs’ single-district challenge depends upon the practical and observable effects of gerrymandering, not academic abstractions.”
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 Gill.
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.
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.)
“The state has not remotely shown that the 6th District would have been redrawn in such politically targeted ways absent the specific intent to burden Republican voters,” Kimberly wrote this week. “Consider, for example, the targeting of Frederick — an island of blue in a sea of red, assigned with laser-like precision to 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.