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ACLU opposes a dozen states in Md. redistricting case

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)

(Photo illustration by Maximilian Franz)

A dozen states have come out in support of Maryland Attorney General Brian E. Frosh’s request that the U.S. Supreme Court 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.

But the American Civil Liberties Union and its Maryland and New York chapters said the high court should be skeptical of congressional districts drawn to “entrench” the legislature’s majority party, adding such entrenchment could violate the First Amendment right of minority-party voters to political association.

The dueling positions have emerged in briefs the states and ACLU groups submitted to the Supreme Court in recent weeks as it considers whether the General assembly unconstitutionally redrew the 6th Congressional District to ensure the election of a Democrat in “retaliation” for the district having elected a Republican.

The Supreme Court will hear arguments March 28 in the case, O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.. The justices are expected to render their decision by the summer.

The states, led by Michigan, argued redistricting is a political function and thus the province of legislatures, not courts.

“By textually committing districting to state legislatures and to Congress – each a political branch – the Constitution keeps the courts out of the inherently political issue of how much politics is acceptable in districting,” the states wrote in their brief. “This structural allocation of districting decisions to political branches makes sense because, as all sides of this debate seem to agree, it is impossible to take all political consideration out of the legislative act of drawing districts.”

As the First Amendment is intended to protect political expression, any redistricting plan required to disregard political affiliation would itself violate the First Amendment, the states wrote.

“Applying a First Amendment-based test would create an across-the-board ban on considering politics in districting, and thus would run contrary to the one point about partisan districting that has shared wide agreement on the (Supreme) Court: the fact that politics and political considerations are inseparable from districting and apportionment,” the states stated. “Applying the First Amendment to partisan redistricting would outlaw any consideration of politics, and that means it would not provide a helpful gauge for measuring the real question this court has grappled with in partisan redistricting cases: “How much political motivation and effect is too much?”

Joining Michigan on the brief were Arkansas, Colorado , Georgia, Indiana, Louisiana, Missouri, Ohio, Oklahoma, South Carolina, Texas and Utah.

Burden of proof

But the ACLU and its Maryland and New York chapters counter that “the First Amendment, which requires that the government remain neutral in regulating expression, provides a proper framework for reviewing  partisan gerrymandering claims. Just as the state may not use its regulatory authority to skew the marketplace of ideas, so too it may not use its regulatory authority to skew electoral outcomes.”

The civil liberties organizations also propose a burden-of-proof procedure for courts to apply in assessing the constitutionality of a redistricting.

First, the party challenging the district as violating the First Amendment would have to show an improper legislative intent to secure a partisan advantage as well as an impermissible effect of “entrenching” partisan advantage against likely changes in voter preference. The burden would then shift to the state to show impairing First Amendment rights was “necessary to advance legitimate state interests,” such as ensuring the districts are compact, contiguous or comply with the federal Voting Rights Act.

The organizations, however, said assessing the constitutionality of redistricting is more accurately accomplished on a statewide basis rather than for a single district, as is the situation in the Maryland case.

“When creating a districting plan – whether congressional or legislative – following the decennial census, a redistricting authority does not draw individual districts as discrete independent entities, but must adopt a map for the entire state,” the ACLU groups stated. “Making a choice in drawing any particular district line necessarily compels a choice with respect to the next, and so on. To focus on a lone district therefore risks missing the forest for a single tree.”

Frosh, in his brief to the justices, stated 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.

Hogan has broken with Frosh in the Supreme Court case, having joined a brief in support of the Republican voters’ constitutional challenge. The governor also backs the creation of an independent redistricting commission in Maryland, a legislative proposal that has died in the General Assembly in past sessions.

3-question test

In papers filed with the Supreme Court, 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.

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