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Hogan urges justices to strike down 6th Congressional District

Governor calls gerrymandering threat to 'our democracy'

Gov. Larry Hogan announces his intention Jan. 18 to join a brief to the Supreme Court in opposition to the 6th Congressional District. (File photo)

Gov. Larry Hogan announces his intention Jan. 18 to join a brief to the Supreme Court in opposition to Maryland’s 6th Congressional District. (File photo)

Saying political parties cannot be trusted to draw nonpartisan districts, Maryland Gov. Larry Hogan on Monday urged 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.

Such partisan gerrymandering intentionally dilutes the voting strength of the minority party based on their political views and party affiliation in violation of the First Amendment rights of free speech and association, Hogan, a Republican, stated in papers filed with the high court.

Hogan’s views put him at odds with Maryland Attorney General Brian E. Frosh, a Democrat, who is defending the state’s 6th Congressional District before the Supreme Court. The governor announced his intentions.

The justices are scheduled to hear arguments March 28 in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333. A decision is expected this summer.

Hogan was joined in the brief by Ohio Gov. John Kasich, a Republican, and former California Govs. Arnold Schwarzenegger and Gray Davis, a Republican and Democrat, respectively.

“(P)artisan gerrymandering is a serious problem that distorts our elections and political processes in ways that transgress settled First Amendment limits and impair a properly functioning democratic republic,” states the brief, submitted by lead attorney Colin E. Wrabley, of Reed Smith LLP in Pittsburgh.

“Worse still, the tentacles of this gerrymandering reach even deeper, disrupting the very processes by which voters might reverse these negative effects through their votes and their pressure on elected officials – pressure that, given the powerful allure of gerrymanders, is likely to fall on deaf ears,” the brief continues. “The (Supreme) Court, therefore, should now firmly and expressly declare what many of its members have observed: The First Amendment forecloses partisan gerrymandering that unlawfully dilutes the right to vote based on one’s viewpoint and political affiliation.”

Hogan and his colleagues submitted the brief in support of a group of Maryland Republicans who claim the 6th 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.

Hogan, in the brief, argued politicians are inherently part of the gerrymandering problem, which needs a judicial solution.

“Based on our own political experiences, we can attest to the natural incentives elected officials have to entrench their party’s power by adopting partisan-gerrymandered redistricting plans and the natural resistance those officials may have to any effort to police redistricting decisions,” the brief states. “Given that experience, our bottom-line conviction is unequivocal: Judicial review is necessary to safeguard our democracy from partisan gerrymandering.”

Hogan has endorsed legislation calling for the creation of an independent commission to redraw district lines but that bill has died in the General Assembly the past two years without reaching either the Senate or House floor.

Frosh had urged the Supreme Court not to hear the challenge to the 6th District, arguing the Republican challengers 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.)

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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