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Justices weigh constitutionality of Maryland district

Steve Lash//March 26, 2019

Justices weigh constitutionality of Maryland district

By Steve Lash

//March 26, 2019

Former California Gov. Arnold Schwarzenegger, left, and Maryland Gov. Larry Hogan, attend a rally for "Fair Maps" at the Supreme Court in Washington Tuesday. (AP photo/Carolyn Kaster)
Former California Gov. Arnold Schwarzenegger, center left, and Maryland Gov. Larry Hogan attend a rally for “fair maps” at the Supreme Court in Washington Tuesday. (AP photo/Carolyn Kaster)

WASHINGTON – Based on questions and comments from justices Tuesday, Maryland’s currently configured westernmost congressional district appears to stand no chance of survival if the Supreme Court holds unconstitutional the intentional redrawing of a district to favor one political party, in this case Democrats.

The high court considered the issue as it heard Maryland Solicitor General Steven M. Sullivan’s appeal of a three-judge U.S. District Court panel’s decision that the 6th Congressional District was unconstitutionally redrawn by Maryland’s Democratic leadership to freeze out Republican voters and ensure the election of a Democrat as U.S. representative.

Sullivan argued that partisan gerrymandering is constitutional so long as a district is not “excessively” tilted in favor of one political party. He called it unrealistic for the politicians redrawing districts – and the judges who review them — to ignore partisanship altogether.

“That is the air politicians breathe,” Sullivan told the high court. “Political aims are endemic.”

“Whether the court likes it or not,” he said, “this is the norm.”

But Sullivan’s argument drew an onslaught of questions and comments from justices who cited testimony from then-Gov. Martin O’Malley and the General Assembly’s leaders that they intended the district to flip Democratic after the 2010 census.

Justice Elena Kagan noted the redrawn map removed 66,000 GOP voters from the district and added 24,000 Democratic voters.

“Under any measure, this is excessive,” Kagan said. “Republicans will never win this seat again. How is that not excessive?”

Justice Brett M. Kavanaugh, echoing Kagan’s comments, advised Sullivan to acknowledge that the state’s leaders created a partisan district to ensure a Democrat’s election over an incumbent Republican in a state where Democrats outnumber Republicans two to one but hold seven of the eight congressional seats.

“I don’t think you should run away from the obvious,” Kavanaugh said. “It was the stated goal (of electing a Democrat) that was effectuated.”

In response, Sullivan noted the redrawn map had been approved by Maryland’s voters in a referendum.

Thus, the redrawn, Democrat-led 6th District was not “the politicians putting one over on people,” Sullivan said. “It (the referendum) is the people’s will being expressed.”

But Justice Samuel A. Alito Jr. said it was not surprising that voters in Maryland, who are mostly Democrats, would approve a map that favors Democrats.

Countering Sullivan, the GOP voters’ attorney told the justices that the 6th District was redrawn to “discriminate against a group of voters based on their political beliefs” in violation of their First Amendment right to political association.

“We are entitled to a neutrally drawn map,” said Michael B. Kimberly, of Mayer Brown LLP in Washington.

However, Chief Justice John Roberts interjected that, if such a nonpartisan map were drawn, “it would be the first time in history.”

Roberts indicated that neutrality in redistricting was unrealistic and said that some partisanship was to be expected and was likely constitutional. “In every redistricting, partisanship is going to have a significant role,” he said.

But Kagan said Maryland was “an outlier,” as evidence of partisan intent was clear given the admissions of the state’s Democratic leaders.

“What makes your case so easy,” Kagan told Kimberly, “is that everybody was upfront about what they were doing.”

Kagan added that perhaps a test of constitutionality could be drawn to strike down “the worst of the worst” of political gerrymanders.

“This happens to be one of them,” Kagan said, referring to the 6th District.

The Supreme Court is expected to render its decision by the summer in the case, Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726.

The high court’s ruling 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,” since-retired 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 commission is expected to propose next month 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 district court panel held in early November that Maryland’s Democratic-led government, in redrawing congressional districts, “specifically targeted voters in the 6th Congressional District who were registered as Republicans and who had historically voted for Republican candidates.”

“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 panel’s third member, U.S. District Judge James K. Bredar, wrote a concurring opinion.

Maryland Attorney General Brian E. 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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