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Frosh will appeal redistricting decision to Supreme Court

Attorney general seeks stay of judges' order to redraw district

Maryland Attorney General Brian Frosh. (File)

Maryland Attorney General Brian Frosh. (File)

Maryland Attorney General Brian E. Frosh will seek Supreme Court review of a three-judge panel’s decision striking down as unconstitutionally gerrymandered a western Maryland congressional district that Republican voters say was so severely tilted to ensure a Democrat’s election as to violate the GOP members’ right to political association.

Frosh, with the support of the Republican voters’ counsel, is also asking the U.S. District Court panel to stay its order — issued last week — that the state redraw the 6th Congressional District to meet constitutional standards pending Supreme Court resolution of his appeal.

Frosh filed with the district court Thursday his notice of appeal to the Supreme Court and his consent motion to stay the order issued Nov. 7.

In the stay motion, Frosh stated the Supreme Court is “poised to address the issue of partisan gerrymandering” and, thus, halting proceedings in the 6th Congressional District challenge is appropriate to let the justices decide whether and under what circumstances partisan gerrymandering is unconstitutional and, if so, what remedial steps should be taken.

“A stay of this matter pending the defendants’ appeal to the Supreme Court is warranted to avoid potentially contradictory results or needless expenditure of public resources,” Frosh wrote in the motion joined by Assistant Attorneys General Sarah W. Rice, Jennifer L. Katz and Andrea W. Trento.

“Any further guidance from the Supreme Court will be important to ensure that, even if this court’s order is affirmed, state lawmakers do not redraw Maryland’s electoral map for 2020 using a standard that is not the one ultimately adopted by the Supreme Court,” Frosh added. “Moreover, this court’s order may be reversed, either because the Supreme Court finds partisan gerrymandering to be nonjusticiable or because the Supreme Court approves a different test for partisan gerrymandering claims, which Maryland’s map may or may not satisfy.”

Frosh stated in the motion that he would file with the Supreme Court by Dec. 3 his request for the justices’ review and that counsel for the Republican voters’ said they would submit their reply to the justices by Dec. 11. Frosh would then submit his response by Dec. 18, in hope that the expedited time table would ensure the Supreme Court is able to consider the appeal during its current term and issue a decision by the end of June, Frosh stated.

In consenting to the motion for stay, the GOP voters’ lead counsel, Michael B. Kimberly, told the three-judge panel that “time is of the essence in this case” and “the Supreme Court must be allowed to rule promptly.”

Kimberly is with Mayer Brown LLP in Washington.

The three-judge panel struck down the 6th Congressional District, saying that Maryland’s Democratic-led government which redrew it following the 2010 census “specifically targeted voters in the 6th Congressional District who were registered as Republicans and who had historically voted for Republican candidates.”

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,” wrote 4th U.S. Circuit Court of Appeals Judge Paul V. 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.”

Frosh, a Democrat, has been defending the controversial district in court as part of his duty to defend the duly passed laws of Maryland.

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, which Frosh, with the Republican voters’ support, has moved to stay.

The three-judge panel did not say when it would rule on the motion for stay.

In its decision last week, the panel 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.

David Trone, a Democrat, was elected Nov. 6 to 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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One comment


    I am extremely disappointed in Mr. Frosh’s stance. The partisan gerrymandering of the Sixth Congressional District was admitted to by Martin O’Malley during his deposition in the federal lawsuit challenging the absurd boundary-drawing of the district. For Mr. Frosh, whom I admire in so many aspects, to pretend this is anything other than partisan gerrymandering is extremely disappointing.

    I have always supported you Mr. Frosh because I believed you to be a man of principle and not just of party. Shame on me.