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Frosh appeals redistricting ruling, order to Supreme Court

Maryland’s attorney general on Monday urged the Supreme Court to review and overturn a lower-court 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.

In papers filed with the high court, Brian E. Frosh wrote the three-judge panel which struck the Sixth Congressional District and ordered it redrawn failed to apply a “limited and precise test” for determining when redistricting has been so partisan as to violate the First Amendment. Frosh added that political affiliation of voters is a valid consideration in redrawing districts to achieve proportional representation that reflects their party preference.

“The three-judge court directed the state ‘to adopt promptly a new congressional districting plan that addresses the constitutional violations found here with respect to the Sixth District for use in the 2020 elections,’ and expressly prohibited the state from ‘considering how citizens are registered to vote or have voted in the past or to what political party they belong’ in doing so,” Frosh wrote. “The state is thus precluded from, for example, adopting a map that seeks to approximate the strengths of Democrats and Republicans statewide. The three judge court’s opinions and injunction fail to set forth workable standards for adjudicating partisan-gerrymandering claims, because they foreclose considerations that this (Supreme) Court has long held to be permissible.”

Frosh was joined on the brief by Maryland Solicitor General Steven M. Sullivan, the counsel of record before the justices.

Frosh’s Supreme Court filing was expected, as he had told the three-judge panel last month that he would seek the justices’ review of its decision and order. The panel, in turn, agreed to stay its ruling and order pending the Supreme Court’s resolution.

Attorneys for the Republican voters challenging the gerrymandered 6th District consented to Frosh’s requested stay in return for expedited filings with the Supreme Court. The Republican voters’ filing is due Dec. 11.

Their lead counsel is Michael B. Kimberly, of Mayer Brown LLP in Washington.

The Supreme Court has not stated when it would vote on Frosh’s request for its review. The case is docketed at the high court as Linda H. Lamone et al. v. O. John Benisek et al.

In its decision, the three judge district court panel held that Maryland’s Democratic-led government, which redrew congressional districts  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.

Then-Maryland Gov. Martin O’Malley, a Democrat, and the Democrat-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 Democrat John Delaney 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.

Democrat David Trone 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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