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Judges stay Md. gerrymandering decision, order pending Supreme Court resolution

A three-judge panel on Friday stayed, pending U.S. Supreme Court resolution, its decision that a western Maryland congressional district was so severely drawn to ensure a Democrat’s election as to violate the GOP voters’ constitutional right to political association.

The panel of federal judges also placed on hold – pending the high court’s decision — its order that Maryland redraw the 6th Congressional District to meet constitutional standards.

Maryland Attorney General Brian E. Frosh had asked for the stay on Thursday, noting his intention to appeal the panel’s ruling to the justices. Frosh’s motion for the stay was supported by the Republican voters and their attorneys.

In his 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 20220 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 district-court 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.

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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