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Md. GOP voters urge justices to affirm gerrymander decision

In deciding about about the drawing of Maryland’s 6th Congressional District, shown in this photo illustration of the U.S. Supreme Court. (Maximilian Franz)

In deciding about about the drawing of Maryland’s 6th Congressional District, shown in this photo illustration of the U.S. Supreme Court. (Maximilian Franz)

A group of Republican voters on Tuesday urged the U.S. Supreme Court to uphold a lower court decision that their western Maryland congressional district was so severely drawn to ensure a Democrat’s election as to violate their constitutional right to political association.

In papers filed with the high court, the GOP voters wrote, through counsel, that the three-judge panel which struck the 6th Congressional District and ordered it redrawn correctly concluded the Democratic-led partisan gerrymandering rendered the election’s result a foregone conclusion in violation of the First Amendment.

“The practice of partisan gerrymandering – aided in modern times by sophisticated software and the most detailed troves of data imaginable – is at war with this (representative) system of government,” wrote Michael B. Kimberly, the GOP voter’s lead counsel.

“Its purpose is to reduce the franchise to a charade – a meaningless exercise, the outcome of which is preordained by computer scientists and political consultants turned cartographers,” added Kimberly, of Mayer Brown LLP in Washington. “If this (Supreme) Court does not take the opportunity, once and for all, to condemn political gerrymandering as the First Amendment violation that it is, it will be giving a green light to lawmakers across the country to engage in gerrymandering in 2020 like never before. It will make the 2010 cycle look like child’s play.”

The GOP voters’ filing followed Maryland Attorney General Brian E. Frosh’s request last week that the justices review and overturn the three-judge panel’s November decision and order the 6th District be redrawn to achieve a constitutionally permissible partisan balance. Frosh, a Democrat, contended the federal district court panel failed to apply a “limited and precise test” for determining when redistricting has been so partisan as to violate the First Amendment.

The panel’s order to redraw the 6th District has been stayed pending the Supreme Court’s resolution of the case.

The justices have not said when they will vote on whether to hear Frosh’s appeal of the panel’s decision. The appeal is docketed at the Supreme Court as Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726.

In their high court filing, the GOP voters suggested that if the justices agree to hear Frosh’s appeal, arguments should be scheduled for the same day as a case from North Carolina challenging that state’s Republican-drawn congressional map as unconstitutionally gerrymandered to dilute the votes of Democrats.

Hearing both arguments back-to-back “would ensure a broader spectrum of legal arguments and a more substantial combined factual record upon which to consider the issues presented in the appeals,” Kimberly wrote.

The Supreme Court has not yet decided whether it will review and overturn the federal court decision that invalidated North Carolina’s map. That case is docketed as Robert A. Rucho et al. v. Common Cause et al., No. 18-422.

Maryland Gov. Larry Hogan is not waiting for the Supreme Court’s resolution.

The Republican chief executive last month ordered the creation of a nonpartisan emergency commission to draw new boundaries for the 6th Congressional District in light of the three-judge panel’s decision. The nine-member commission will have until March 4 to propose a more evenly drawn 6th Congressional District that protects the rights of all voters regardless of party, according to Hogan’s executive order.

The three-judge panel held last month that the state’s Democratic-led government, in redrawing 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 6th District, and diminished Republican participation in voting as well as decreased Republican fundraising,” Niemeyer wrote. “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’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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