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Three-judge panel finds Md.’s 6th Congressional District unconstitutional

Gov. Larry Hogan speaks in March about gerrymandering. (The Daily Record / Maximilian Franz)

Gov. Larry Hogan, shown in March, hailed the three-judge panel’s ruling Wednesday that the 6th Congressional District in Maryland is drawn in such a way as to be unconstitutional. (The Daily Record / Maximilian Franz)

A three-judge panel on Wednesday struck down as unconstitutionally gerrymandered a western Maryland congressional district, agreeing with Republican voters that it was so severely tilted to ensure a Democrat’s election as to violate the GOP members’ right to political association.

The federal judges’ decision does not undo Tuesday’s election in the 6th Congressional District, which was won by Democrat David Trone. But the judges have blocked the state from conducting a congressional election in 2020 unless the district is redrawn to protect the rights of the Republican voters.

After the 2010 U.S. Census, Maryland’s Democratic-led government “specifically targeted voters in the 6th Congressional District who were registered as Republicans and who had historically voted for Republican candidates,” 4th U.S. Circuit Court of Appeals Judge Paul V. Niemeyer wrote in the panel’s majority opinion.

The judges noted that the redrawn map removed 66,000 GOP voters from the district and added 24,000 Democratic voters in their places.

“The state meaningfully burdened the targeted Republican voters’ representational rights by substantially diminishing their ability to elect their candidate of choice,” added Niemeyer, who was joined by U.S. District Judge George L. Russell III.

“The state also burdened the Republican voters’ right of association, as demonstrated by voter confusion, diminished participation in Republican organizational efforts in the Sixth District, and diminished Republican participation in voting as well as decreased Republican fundraising,” wrote Niemeyer, who serves on the 4th U.S. Circuit Court of Appeals. “We thus conclude that the plaintiffs (GOP voters) have sufficiently demonstrated that Maryland’s 2011 redistricting law violates the First Amendment by burdening both the plaintiffs’ representational rights and associational rights based on their party affiliation and voting history.”

The panel’s third judge, U.S. District Judge James K. Bredar, wrote a concurring opinion.

Maryland Gov. Larry Hogan, a Republican, called the decision “a victory for the vast majority of Marylanders who want free and fair elections and the numerous advocates from across the political spectrum who have been fighting partisan gerrymandering in our state for decades.”

Hogan, in his statement, said the ruling confirms “what we in Maryland have known for a long time – that we have the most gerrymandered districts in the country, they were drawn this way for partisan reasons, and they violate Marylanders’ constitutional rights.”

The governor added “it’s past time for Marylanders to choose their representatives instead of politicians choosing their constituents, and today’s ruling is a major step in that direction.”

The office of Maryland Attorney General Brian E. Frosh, a Democrat, has been defending the controversial district in court as part of his duty to defend the duly passed laws of Maryland. His office said in a statement Wednesday afternoon that it is “reviewing options” in light of the panel’s decision.

The options could include an appeal to the U.S. Supreme Court, as decisions by three-judge U.S. District Court panels convened in voting-rights cases are appealable directly to the justices.

The Republican voters’ attorney, Michael B. Kimberly, hailed the panel’s decision as “a great one for democracy” that “strikes at the heart of the First Amendment.”

The court “quite appropriately” waited until after the election to avoid confusing voters or influencing the result so soon before the vote while requiring the state to act quickly to ensure voters’ rights are protected the next time they elect a member of Congress, said Kimberly, of Mayer Brown in Washington.

To ensure Maryland’s constitutional compliance by 2020, the three judges ordered the state to submit to them, by March 7, 2019, a new 6th Congressional District map. The Republican voters would have 30 days to object to the submitted map.

If the judges reject the plan – or if the state fails to meet the deadline – they will assign the job of redrawing the district to a Congressional District Commission they will appoint. The commission would then have until July 8, 2019, to submit an appropriate plan to the judges.

The commission would consist of U.S. magistrate Judge J. Mark Coulson, who would serve as chair; a person designated by the Republican voters; and a person designated by the state. The designees could not be employees of the federal government or of Maryland, under the panel’s order.

The commission would retain a professional map drawer as an assistant. The state would bear all costs, the panel stated in its order.

The three-judge panel’s ruling addressed 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 Tuesday’s election.

“To be sure, the Supreme Court has not directly addressed allegations that a redistricting plan has violated the First Amendment, but it has indicated clearly that such a challenge is not precluded by its decisions or by the Constitution,” Niemeyer wrote.

“To be sure, citizens have no constitutional right to be assigned to a district that is likely to elect a representative that shares their views,” he wrote.

“But they do have a right under the First Amendment not to have the value of their vote diminished because of the political views they have expressed through their party affiliation and voting history,” Niemeyer added. “Put simply, partisan vote dilution, when intentionally imposed, involves the state penalizing voters for expressing a viewpoint while, at the same time, rewarding voters for expressing the opposite viewpoint. This targeting of a citizen’s viewpoint is typical of First Amendment violations in other contexts.”

Maryland’s then-governor, Democrat Martin O’Malley, and the Democratic-controlled General Assembly redrew the 6th District following the 2010 census to include a significant swath of Democrat-rich Montgomery County. Republicans said the move 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. Delaney chose not to run for re-election in 2018 in order to pursue the Democratic presidential nomination in 2020.

Trone, having won on Tuesday, will succeed Delaney.

The three-judge panel rendered its decision in O. John Benisek et al. v. Linda H. Lamone et al., No. 13-cv-3233.


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