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As high court date nears, Md. GOP voters make last gerrymander challenge

In their final attack on partisan gerrymandering before the U.S. Supreme Court hears the case, Maryland Republicans told the justices Monday that the state’s Democratic leadership violated their constitutional right to political association by redrawing the state’s western-most congressional district in a successful attempt to sap their votes and organizational activities while ensuring a Democrat’s election.

“Government regulation may not favor one citizen over another on the basis of his or her political views,” the GOP voters’ attorney Michael B. Kimberly wrote in the Supreme Court filing.

“That is exactly what a partisan gerrymander does: It inflicts concrete burdens (vote dilution and associational disruptions) on a particular group of citizens because government officials disapprove of those citizens’ voting histories and political-party affiliations,” added Kimberly, of Mayer Brown LLP in Washington. “Gerrymander plaintiffs are entitled to relief under the First Amendment when they prove that map drawers deliberately diluted their votes or disrupted their associational activities because of their political views, producing a discernible, concrete injury.”

The Republicans’ filing came as the Supreme Court prepares to hear arguments March 26 in Maryland Attorney General Brian E. Frosh’s appeal of a three-judge panel’s decision that the 6th Congressional District was unconstitutionally drawn by the Democratic leadership after the 2010 census to replace a Republican congressman with a Democrat.

The U.S. District Court panel also ordered that the congressional district be redrawn to achieve constitutional equity between the political parties, but that order that has been stayed pending the Supreme Court’s decision in the case, Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726.

A ruling is expected by this summer.

Frosh, in his filing with the Supreme Court last month, stated that the First Amendment gives lawmakers latitude to consider politics in redrawing congressional districts, as long as they are not excessively partisan.

The three-judge panel improperly established “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.”

The high court’s resolution of the case could be a legal landmark as the justices have not set constitutional limits on partisan gerrymandering. They came close to doing so in their 2004 Vieth v. Jubelirer decision upholding the dismissal of an equal-protection challenge to Pennsylvania’s congressional redistricting after the 2000 census.

“First Amendment concerns arise where a state enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views,” Justice Anthony M. Kennedy wrote in the court’s controlling, but not majority, opinion. “In the context of partisan gerrymandering, that means that First Amendment concerns arise where an apportionment has the purpose and effect of burdening a group of voters’ representational rights.”

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.


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

Following the 2010 census, Maryland’s then-governor, Democrat Martin O’Malley, and the Democratic-controlled General Assembly redrew the 6th District 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.

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