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Md. elections board, GOP voters cite justices’ ruling in redistricting challenge

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)

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)

A group of Republican voters and the Maryland Board of Elections have brought differing interpretations of a recent Supreme Court decision to their ongoing legal dispute regarding whether partisan gerrymandering in a congressional district was so severe it violated the minority party’s constitutional right to political association.

The GOP voters claim the justices’ June 18 ruling in Gill v. Whitford, No. 16-1161, stands for the proposition that partisan gerrymanders could be unconstitutional based on a showing of intentional dilution of the minority party’s vote in a specific legislative or congressional district. But the Board of Elections counters the high court in Gill, a Wisconsin case, held that voter dilution cannot be asserted by a group but that each individual voter must show his or her vote was weakened as a result of the gerrymander.

The GOP voters and elections board have presented their dueling arguments in papers filed this month with a three-judge panel of the U.S. District Court in Baltimore, which is reviewing the Republicans’ claim that the 6th Congressional District was unconstitutionally redrawn to be overwhelmingly majority-Democrat in retaliation for the district having elected a GOP U.S. representative.

No date has been set for the panel to hear arguments and rule on the parties’ filings, in which each side is requesting the judges render summary judgment in its favor on the voters’ First Amendment claim. The case is docketed in the district court as O. John Benisek et al. v. Linda H. Lamone et al., No. 13-cv-3233.

The Supreme Court issued its ruling in Gill the same day it upheld the three-judge panel’s denial of the Republican voters’ request for a court order that the congressional district encompassing Maryland’s five western counties be redrawn in time for the general election this fall. The justices, in sending the case back to the panel, said such a hurried ruling would be premature.

The Supreme Court case from Maryland was docketed as O. John Benisek et al. v. Linda H. Lamone et al., No. 17-333.

Wisconsin case

Unlike the Maryland single-district case, Gill concerned whether GOP lawmakers in Wisconsin drew legislative districts so contrary to the state’s political breakdown that they violated the constitutional rights of Democratic voters. The justices noted the breadth of the statewide claim in holding that the voters lacked individual standing to bring their constitutional claim.

Maryland’s GOP voters, in their papers filed this month, seized on the distinction between their single-district claim and the statewide claim in Gill in arguing they not only have standing to bring their claim but can prove the 6th District was deliberately redrawn after the 2010 Census to replace the incumbent GOP representative with a Democratic one.

“The majority opinion (in Gill) confirmed in clear and certain terms that vote dilution is a cognizable injury in partisan gerrymandering cases like this, and it held that  such claims must be brought in exactly the kind of single-district challenge that we have brought here,” stated Michael B. Kimberly, the GOP voters’ lead attorney.

“And both the majority and concurring opinion lend additional support tour contention that the plaintiffs’ (voters’) injury inheres not in changed electoral outcomes themselves, but in the gerrymander’s burdening of their votes and associational rights, making it harder for them to achieve electoral success,” added Kimberly, of Mayer Brown LLP in Washington. There is strong – indeed, undisputed – evidence of such burdens and causation in this case.”

That evidence includes deposition testimony from former Maryland Gov. Martin O’Malley, a Democrat, that Democratic control of the district was a goal of the redistricting that he oversaw.

But the Board of Elections, in its filing, quoted from Gill in stating that each voter must “prove concrete and particularized injuries using evidence … that would tend to demonstrate a burden on their individual votes.”

The Republican voters in the 6th District “have never made any attempt to explain how  the evidence they have provided demonstrates any burden on their individual votes when what they have shown is nothing more than their preferred political party’s diminished success in electing its candidate,” wrote Maryland Attorney General Brian E. Frosh, the board’s lead attorney. “That showing does not suffice to establish a redressable injury under the Supreme Court’s redistricting precedents.”

Frosh was joined in the filing by Assistant Attorneys General Sarah W. Rice, Jennifer L. Katz and Andrea W. Trento.

The three judges on the U.S. District Court panel are James K. Bredar, George L. Russell III and Paul V. Niemeyer, who sits on the 4th U.S. Circuit Court of Appeals.

Maryland’s Democrat-controlled 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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