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ACLU of Maryland calls congressional district unconstitutionally drawn

Rights group submits brief in Supreme Court case

Maryland Attorney General Brian E. Frosh xxxxxx (File photo)

Maryland Attorney General Brian E. Frosh has appealed a ruling by a three-judge U.S. District Court panel that ordered the state to redraw the 6th Congressional District to achieve partisan equity. (File photo)

The ACLU of Maryland pressed the U.S. Supreme Court on Friday to strike down the state’s westernmost congressional district as unconstitutionally drawn by Maryland’s Democratic leadership to freeze out Republican voters and ensure the election of a Democrat as U.S. representative.

In papers filed with the justices, the American Civil Liberties Union chapter said partisan gerrymandering by the party in control of the state violated the minority’s First Amendment right to political association.

The state ACLU chapter included a similar criticism of North Carolina’s congressional redistricting, in which that state’s Republican-led government deliberately created GOP-rich districts.

“The First Amendment safeguards voters’ freedoms to associate with and advocate for a political party, vote for their candidate of choice, express their political views, and participate in the political process,” the ACLU of Maryland stated in the Supreme Court brief it joined with the union’s national, North Carolina and New York chapters.

“It is difficult to identify a core individual political right that is left untainted by partisan gerrymandering,” the ACLU groups said. “By weighting the electoral scales, it substantially burdens the rights of any citizens who would choose to run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a political campaign, and contribute to a candidate’s campaign.”

The justices will hear constitutional challenges to the Maryland and North Carolina redistricting on March 26. The high court is expected to render its decisions by the summer.

The Maryland case involves Republican voters’ claim that the state’s Democratic leaders redrew the 6th Congressional District following the 2010 census in a successful and unconstitutional attempt to sap their votes and organizational activities while ensuring a Democrat’s election.

A three-judge panel agreed with that argument in November and ordered the state to redraw the district to achieve partisan equity, an order that has been stayed pending the Supreme Court’s resolution of Maryland Attorney General Brian E. Frosh’s appeal of that ruling.

Frosh, in his filing with the Supreme Court last month, stated 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 Republican voters, in a filing this week, said the First Amendment places a strict limit on partisan gerrymandering.

“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,” said 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 Maryland case before the Supreme Court is Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726. The North Carolina case is Robert A. Rucho et al. v. Common Cause et al., No. 18-422.

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.

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 incumbent at the time, a Republican. (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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