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Supreme Court’s decision on Md.’s 6th District could have national implications

In deciding about about the drawing of Maryland’s 6th Congressional District, the Supreme Court will consider 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. (Photo illustration by Maximilian Franz)

In deciding about about the drawing of Maryland’s 6th Congressional District, the Supreme Court will consider 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. (Photo illustration by Maximilian Franz)

One of the biggest Maryland law stories of 2017 could become an even bigger story in 2018.

The U.S. Supreme Court earlier this month agreed to 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 this spring will 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.

The Supreme Court is expected to render a decision by the end of June in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.

A threshold issue 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 Supreme Court came close to addressing the constitutional limits of political gerrymandering in its 2004 Vieth v. Jubelirer decision upholding the dismissal of an equal protection challenge to Pennsylvania’s congressional districting after the 2000 census.

“First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Justice Anthony M. Kennedy wrote in the court’s controlling opinion. “In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.”

Constitutional law professor Michael I. Meyerson said the Supreme Court “could radically alter elections in America” if it finds congressional and legislative districts susceptible to First Amendment challenges.

But to render such a ruling, the justices will have to adopt some mathematical standard for determining when a district’s partisan tilt is “too unfair” under the Constitution, said Meyerson, who teaches at the University of Baltimore School of Law.

A formula is needed, Meyerson continued, because political partisanship is not as easily established as a racially or ethnically unbalanced district, which comes down to the tried and true constitutional standard of one-person, one vote.

‘Efficiency gap’

In addition, the late Justice Potter Stewart’s visceral test of determining whether pornographic material is unconstitutionally obscene – “I know it when I see it” – would neither work nor be accepted by the American people when determining whether a district is unconstitutionally partisan, Meyerson said.

“To strike down gerrymandering, the court is going to have to come down with a standard,” he said.

“It has to feel mathematically valid to them or you’re not going to get five votes” for a simple Supreme Court majority.

One such mathematical formula showing promise in legal circles is the “efficiency gap,” which holds that, in an ideal district, both parties would have the same number of “wasted votes,” those ballots cast for losing candidates and surplus votes cast for winning candidates. The efficiency gap, developed by political scientist Eric McGhee and law professor Nicholas Stephanopoulos, also has its own formula: the difference between the parties’ wasted votes in an election divided by the total number of votes cast.

Meyerson said it would be up to the Supreme Court to determine if this formula – or any other – is legally sound.

Surprise decision

That the high court agreed to hear the Maryland case surprised many court watchers who predicted the justices would hold it in abeyance pending their decision in Gill v. Whitford, in which they are 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.

Many have assumed that the Gill decision, expected by the summer, would provide guidance to a three-judge federal district-court panel in Baltimore that is reviewing the Maryland congressional district’s constitutionality. That three-judge panel had opted in August to stay the Republicans’ challenge pending the Supreme Court’s decision in Gill.

But the Republicans challengers in Maryland had other plans, as they distinguished their single congressional district challenge from the Democrats’ statewide legislative challenge in Wisconsin.

The Republicans’ attorney, Michael B. Kimberly, declined to comment on the case or his legal strategy beyond what he has written in court filings. In those filings, Kimberly argued “a state may not deliberately discriminate against citizens based on their support of particular politicians or political parties,” adding “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.

Frosh, in court filings, stated 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 6th 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.

Independent commission?

With the case pending before the Supreme Court, Gov. Larry Hogan has said he plans to have legislation resubmitted this coming General Assembly session that would create an independent commission to draw congressional and legislative districts in the state.

The proposal failed in the legislature this past session as the Democrat-led General Assembly passed a redistricting bill that would take effect if five other states in the region – New Jersey, New York, Pennsylvania, North Carolina and Virginia – agree to the changes.

Hogan vetoed that bill, calling it “a political ploy” to block real reform.

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.

The Associated Press contributed to this report.

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