With the Supreme Court poised to rule on political gerrymandering this year, Maryland Attorney General Brian E. Frosh urged the justices to uphold a congressional district Republican voters say the state’s Democratic-led General Assembly redrew unconstitutionally to replace a GOP House member with a Democratic one.
In papers filed with the court Wednesday, Frosh said the Republicans cannot show that the 6th Congressional District violates the First Amendment right of GOP voters to political association because, they claim, the legislature deliberately redrew the district to ensure the election of a Democrat and in “retaliation” for the district having elected a Republican.
The voters cannot prove the harm, because the constitutional right to vote does not include a right to live in a district where the majority shares one’s political views and will vote for one’s favored candidate, Frosh wrote.
“Any member of a political minority may still vote in elections, campaign for preferred candidates, petition her representative, and access constituent services,” he wrote.
“A redistricting plan has no inherent impact on who is on the ballot, who can cast a vote, or when votes may be cast, and is therefore not a tangible restriction impacting individuals’ ability to cast their votes effectively,” Frosh added. “To be faithful to the retaliation jurisprudence … the (GOP voters) would have to have established, as a matter of law, that a resident suffers tangible harm merely by living in a district where one’s political party is in the minority or where one’s preferred candidate does not command a majority of voters’ support.”
Frosh filed the papers in advance of the Supreme Court hearing arguments March 28 on the Republican voters’ constitutional challenge. The justices are expected to render their decision by this summer in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.
Frosh was joined in the brief by Assistant Attorneys General Sarah W. Rice, Jennifer L. Katz and Andrea W. Trento; Adam D. Snyder, deputy chief of litigation; and Maryland Solicitor General Steven M. Sullivan, the counselor of record before the justices.
Frosh, in the brief, stated that the determination of whether political gerrymandering violates the First Amendment is “neither judicially manageable nor justiciable” due to the sanctity of the secret ballot, the inherent flaws of polling data and the inability to define how much voter dilution is ‘too much.”
“Determining retaliatory animus becomes impracticable in the redistricting setting, where reapportionment legislation results from the impact of numerous actors with differing motivations, and the secret ballot precludes defendants’ knowledge of an individual plaintiff’s voting behavior,” Frosh wrote.
“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,” added Frosh, a Democrat. “Perhaps because of the recognized disconnect between party registration and voting behavior, no evidence in this or other pending partisan gerrymandering claim suggests that an individual’s partisan affiliation served as a basis for legislative decision making.”
Hogan has broken with Frosh in the Supreme Court case, having joined a brief in support of the Republican voters’ constitutional challenge. Hogan, who took office in 2015, also backs the creation of an independent redistricting commission in Maryland, a legislative proposal that has died in the General Assembly in each year of his governorship.
In papers filed with the Supreme Court last month, the Republican voters’ attorney proposed a three-question test for courts to use in assessing whether a district has been drawn in favor of one party to such an extent as to violate the First Amendment: Did the state redraw district lines with the intent to dilute the votes of citizens because of their political beliefs? Were the votes actually diluted? And is there a constitutionally acceptable explanation for the map’s “ill effects” besides the intent to discriminate based on “political belief”?
Attorney Michael B. Kimberly, in explaining his test, wrote the First Amendment does not “entail a right to electoral success – it entails only a right to be free from governmental reprisals for successful past support of opposition candidates for elective office.”
Kimberly is with Mayer Brown LLP in Washington.
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. Delaney handily won re-election in 2014 and 2016.
The justices are also considering a similar Wisconsin case that addresses 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. A decision in that case, Gill v. Whitford, is also expected by the summer.