A panel of three federal judges appears poised to permit Republican voters to go to trial – or perhaps even rule for them outright – on their claim that partisan gerrymandering of their western Maryland congressional district was so severe it violated their constitutional right to political association.
During arguments Thursday, the judicial trio in Baltimore seemed receptive to the voters’ claim that the state’s Democratic leadership intentionally – and successfully – redrew the district after the 2010 U.S. census to ensure the election of a Democratic congressman over the Republican incumbent.
The judges also seemed sympathetic to the voters’ argument that the redrawn district was targeted not only at ensuring a Democrat’s election but to weaken the GOP’s ability to organize, fundraise and campaign in the 6th Congressional District.
“The explicit intent was to do exactly what they accomplished,” 4th U.S. Circuit Court of Appeals Judge Paul V. Niemeyer said, referring to the Democratic leadership. The electorate has the “right to an equally weighted vote,” he added.
By contrast, the judges were critical of the state Board of Elections’ contention that the GOP voters have failed to adequately show that the loss of the congressional seat to a Democrat was the goal of then-Gov. Martin O’Malley, a Democrat, and the Democratic-led General Assembly. Assistant Maryland Attorney General Sarah W. Rice, arguing on the board’s behalf, also contended that the Republican voters essentially waived their right to challenge the redistricting by waiting several years before filing suit.
But U.S. District Judge James K. Bredar said the Democrats’ intent was “obvious” in sharply reducing the number of Republicans in the redrawn 6th District.
“They (Republicans) cannot associate with each other in a manner that is meaningful because they are not in the same district,” said Bredar, chief judge of the U.S. district court for Maryland. “If you can’t associate, you have associational harm.”
The GOP voters and the state were each pressing the three judges to grant summary judgment in the years-old case that presents the issue – as yet unresolved by the Supreme Court – of whether a congressional or legislative district can be so heavily partisan gerrymandered as to violate the minority party’s First Amendment right to political association. The case was in fact back before the three-judge panel after the Supreme Court in June declined the GOP voters’ bid for an emergency court order that the 6th Congressional District be redrawn in time for next month’s election.
‘Nobody will fix it’
At Thursday’s court session, panel members suggested wistfully that the two sides try to seek an agreement, such as by having an independent body redraw the district or join with a state with a record of Republican gerrymandering and redraw each other’s districts. The judges also said if a settlement could not be reached, the federal court could step in and redraw the district itself.
Niemeyer, in suggesting settlement, noted that the two sides remain far apart but urged them not to be stubborn.
“It takes two to tango,” Niemeyer said. “It (also) means that one has to take the lead.”
Bredar called heavy partisan gerrymandering “repugnant” in saying that a settlement should not be impossible.
“Everyone says it (the gerrymandering) is terrible but nobody will fix it,” Bredar said. “Agreements can be reached to solve hard thorny problems if there is a will.”
The GOP voters’ attorney, Michael B. Kimberly, said he would welcome a settlement if it results in a “neutrally drawn map.” However, a settlement is unlikely because it would essentially require a redistricting vote by the Democratic-led General Assembly, he added.
Rice also called settlement unlikely and maintained the redrawn 6th District passes constitutional muster.
Kimberly pressed the GOP voters’ bid for summary judgment, saying the deliberate redrawing of the district from competitively Republican to overwhelmingly Democratic violated the associational rights of GOP voters who were so outnumbered they could no longer find a viable candidate to run much less effectively fundraise in the 6th District or get voters to the polls.
“What is the point of showing up at the ballot box … for a candidate who is almost certain to fail?” said Kimberly, of Mayer Brown LLP in Washington. “They (GOP voters) have been singled out for disfavored treatment.”
Rice, in pressing the Board of Elections’ request for summary judgement, said the GOP voters had failed to show a Democratic intent to harm them Republicans and had waited too long to mount their constitutional challenge.
The “dilatory” tactics of the Republican voters was unfair to both the 6th District electorate – which has developed a settled expectation of the geographic boundaries, Rice said. The delay also placed at a disadvantage O’Malley, Senate President Thomas V. Mike Miller and House Speaker Michael E. Busch, Democratic leaders whose memories of the years-ago redistricting are fading but have nevertheless been compelled to testify regarding what they remember, Rice told the three-judge panel.
Rice added that after November only one more election will be held, in 2020, before the congressional districts are again redrawn.
But that argument drew scorn from Niemeyer, who said judges are not relieved of their duty to remedy a constitutional violation – if they find one – simply because time might provide its own cure.
Judges can say neither “you can suffer that injury for another election and then we will help you” nor “there’s only one election; put up with it; we’ll help you in the next election,” Niemeyer said.
U.S. District Judge George L. Russell III is the other jurist on the panel. The judges did not say when they would rule on the dueling motions for summary judgment.
The losing party before the three-judge panel could ultimately seek review directly from the Supreme Court.
The case is docketed at the district court as O. John Benisek et al. v. Linda H. Lamone et al., No. 13-cv-3233.
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.