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Constitution bars ‘excessive’ partisanship, Frosh tells justices

Attorney general defends congressional district

Attorney General Brian Frosh. (File photo)

Maryland Attorney General Brian E. Frosh says the First Amendment gives lawmakers latitude to consider politics when redrawing congressional districts as long as they are not excessively partisan. (File photo)

A three-judge panel disregarded legitimate political considerations when it struck down a congressional district in western Maryland because it was drawn with such a partisan bias by the state’s Democratic leadership as to violate the Republicans’ constitutional right to political association, Maryland’s attorney general stated in papers filed Friday with the Supreme Court.

With the justices slated to hear his appeal next month, Brian E. Frosh stated that the First Amendment gives lawmakers latitude to consider politics in redrawing congressional districts, as long as they are not excessively partisan.

But the U.S. District Court panel failed to “distinguish between permissible political considerations and excessive partisanship” in ordering the 6th Congressional District to be redrawn, Frosh wrote in urging the Supreme Court to overturn the judges’ decision.

The three-judge panel “draws no line between acceptable and excessive political consideration,” Frosh wrote in the brief, which was co-signed by Maryland Solicitor General Steven M. Sullivan, counsel of record before the Supreme Court. “Any degree of partisan intent and almost all political aims of any nature will suffice, because any intent to draw a boundary in a way that marginally benefits one political party, even as it serves another (valid) redistricting goal, can be characterized as an attempt ‘to impose a burden’ on members of a competing political party ‘because of how they voted or the political party with which they were affiliated.’ Thus, this intent element is likely to be satisfied in every redistricting challenge.”

Frosh is opposed at the high court by a group of Republican voters urging the justices to affirm what they call the three-judge panel’s correct decision that Democratic-led partisan gerrymandering rendered a Democrat’s election in the 6th District 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 voters’ lead counsel, in a filing with the justices last year. “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.”

Kimberly is with Mayer Brown LLP in Washington.

The justices are to hear arguments in the case on March 26 and are expected to issue their decision by this summer. The case is Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726.

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

The Republican governor in late November ordered the creation of a nonpartisan emergency commission to draw new boundaries for the 6th District in light of the three-judge panel’s decision. The nine-member commission will have until the spring 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 in early November 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.

“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 member, U.S. District Judge James K. Bredar, wrote a concurring opinion.

Frosh, a Democrat, then sought review by the Supreme Court.

“Maryland recognizes that the problem of partisan gerrymandering poses a threat to democracy in the United States and that our courts have an important role, in both remedying existing unconstitutional gerrymanders and preventing future violations by providing clear guidance for legislatures and other districting bodies,” Frosh wrote in the brief submitted Friday.

“This (Supreme) Court can and should determine a manageable standard, one that lower courts can apply to remedy abusive partisan gerrymanders such as those that entrench in power a political party whose adherents enjoy only minority support,” Frosh added. “This is not such a case, and the decision below fails to supply the much-needed standard.”

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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