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Hogan will urge Supreme Court to strike down congressional district

Brief places governor at odds with Attorney General Frosh

ANNAPOLIS – Maryland Gov. Larry Hogan on Thursday said he will urge the U.S. Supreme Court to strike down as unconstitutional a congressional district the Democrat-led General Assembly redrew to replace a Republican U.S. representative with a Democratic one.

The decision by Hogan, a Republican, to join a brief in opposition to the 6th Congressional District puts him at odds with Maryland Attorney General Brian E. Frosh, a Democrat, who is defending the redrawing before the high court.

“Sadly, Maryland’s attorney general is on the wrong side of this battle and on the wrong side of history, in my opinion,” Hogan said. “Unfortunately, I cannot direct him to fight on the side of an overwhelming number of Marylanders who oppose gerrymandering and want free elections in our state.”

Raquel Guillory Coombs, a spokeswoman for Frosh, responded that “the attorney general is constitutionally required to defend state law. The governor should be well aware of that.”

Hogan joins former California governor Gray Davis, a Democrat, in signing the brief. The Maryland Republican called on other current and former governors to follow their lead.

Common Cause Maryland began soliciting the support of governors and former governors to sign on to the amicus brief drafted by Reed Smith LLP.

Damon Effingham, acting director of Common Cause Maryland, applauded Hogan’s action and said the first-term Republican was the first to sign on.

The amicus brief on redistricting is not the first time Hogan has gone his own way when it comes to issues before the Supreme Court. Last year, Hogan signed an amicus brief in support of a New Jersey case that could allow states to legalize sports betting.

Hogan also announced he will propose in the General Assembly, for a third year, a bill that would take legislative redistricting out of the hands of the governor and lawmakers and place it in the hands of an independent commission. That bill has died in committee in each of the last two sessions — and many expect this year’s effort will fare no better.

Still, Hogan called on Democrats who control the legislature to back his effort.

“This is not a fight between Republicans and Democrats,” Hogan said. “This is about Maryland’s future. This is not about right and left but about right and wrong.”

Last year, instead of passing Hogan’s bill, Democrats passed legislation creating an independent redistricting commission affecting only congressional redistricting only if five other select states passed identical legislation. Hogan vetoed the legislation.

Democrats this year have tabled a vote on overriding that veto until the last day of the session, suggesting to some that the governor’s action will not be undone.

“It seems maybe in their nine months away from Annapolis some legislators saw the light or maybe they felt the heat,” Hogan said of the delay.

Threshold issue

The justices have agreed to hear the claim by group of Maryland Republicans that the 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 the Supreme Court will consider in the case is 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.”

Frosh 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.”

Wisconsin case

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.

Daily Record government writer Bryan P. Sears contributed to this report.

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