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Judges can decide Md. district’s validity, GOP voters tell justices

Filing precedes Supreme Court argument

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)

In their last filing before the Supreme Court hears their appeal, Republican voters told the justices Tuesday that federal judges can determine if Maryland’s Democratic-led General Assembly unconstitutionally redrew a congressional district to replace a GOP House member with a Democrat.

The Republican voters’ filing was in response to Maryland Attorney General Brian E. Frosh’s argument that they cannot show 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 “First Amendment challenge to Maryland’s single-district partisan gerrymander is justiciable under the same standards that govern all First Amendment challenges in cases involving voting and elections,” wrote Michael B. Kimberly, the Republicans’ lawyer. “Thus, when a state deliberately retaliates against its citizens for their past voting behavior by diluting their votes so significantly that it eviscerates their political opportunity – and the burden would not have been imposed otherwise – the targeted voters have a First Amendment claim, and Article III (federal) courts have jurisdiction to resolve it.”

The Republican voters’ filing came in advance of the Supreme Court hearing arguments March 28 on their 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.

The pending arguments have drawn the attention of the American Civil Liberties Union and its Maryland and New York chapters, which stated in papers filed with the justices that they should be skeptical of congressional districts drawn to “entrench” the legislature’s majority party because such entrenchment could violate the First Amendment right of minority-party voters to political association. But a dozen states supporting Frosh countered that redistricting is the province of legislatures, not courts, and therefore politics cannot be entirely displaced.

The Republican voters, in their filing, agreed with the inevitability of politics but said the courts play a tempering role.

“Enforcement of the First Amendment in this case will not ‘outlaw’ all politics in redistricting; it will forbid only deliberate efforts to dilute citizens’ votes because of the way they voted in the past,” wrote Kimberly, of Mayer Brown LLP in Washington.

“This is a difference of kind, not degree; most political considerations remain entirely permissible,” he added. “Nor do we argue that plaintiffs’ political success before the redistricting entitles them to continued political success after the redistricting. The point is only that the plaintiffs have a right not to be singled out for disfavored treatment on the basis of their party preference or successful past support of Republican candidates for office.”

Frosh argued in his earlier filing that determining partisan retaliation is “impracticable” in a redistricting.

“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,” wrote 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 also backs the creation of an independent redistricting commission in Maryland, a legislative proposal that has died in the General Assembly in past years.

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.

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