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Supreme Court will hear GOP challenge to Md. congressional district

FILE - In this April 4, 2017, file photo, the Supreme Court Building is seen in Washington. In an era of deep partisan division, the Supreme Court could soon decide whether the drawing of electoral districts can be too political. A dispute over Wisconsin’s Republican-drawn boundaries for the state legislature offers Democrats some hope of cutting into GOP electoral majorities across the United States.(AP Photo/J. Scott Applewhite, File)

FILE – In this April 4, 2017, file photo, the Supreme Court Building is seen in Washington. In an era of deep partisan division, the Supreme Court could soon decide whether the drawing of electoral districts can be too political. (AP Photo/J. Scott Applewhite, File)

The U.S. Supreme Court will consider whether Maryland’s Democrat-led General Assembly unconstitutionally redrew a congressional district to replace a Republican U.S. representative with a Democratic one.

The justices on Friday agreed to hear the claim by a group of Maryland Republicans 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 in “retaliation” for the district having elected a Republican.

A threshold issue that the Supreme Court will consider in the case will be whether the First Amendment is even implicated in a partisan gerrymandering case, which has historically been regarded as a political and not a legal issue.

The high court is expected to hear arguments this spring and render its decision by the summer in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.

In papers filed earlier with the justices, the Republicans’ attorney argued that “a state may not deliberately discriminate against citizens based on their support of particular politicians or political parties.”

The lawyer, Michael B. Kimberly, added that “such viewpoint discrimination is anathema to the First Amendment cannot ever be what democracy requires.”

Maryland Attorney General Brian E. Frosh, a Democrat, had urged the Supreme Court to reject the Republicans’ 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.

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.”

The pending Maryland case is similar to one the high court heard in October. In that case, Gill v. Whitford, the high court is considering whether GOP lawmakers in Wisconsin drew state legislative districts so contrary to the state’s political breakdown that they violated the constitutional rights of Democratic voters. A decision in that case is also expected by the summer.

The Maryland 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.

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, of Mayer Brown LLP in Washington, wrote in his request that the justices hear the Republicans’ appeal. “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.

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