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Supreme Court stays clear of Maryland gerrymander dispute

Justices rules redistricting to be a 'political question'

The Supreme Court is seen under stormy skies in Washington, Thursday, June 20, 2019. (AP Photo/J. Scott Applewhite)

The Supreme Court is seen under stormy skies in Washington, Thursday, June 20, 2019. (AP Photo/J. Scott Applewhite)

A sharply divided U.S. Supreme Court ruled Thursday that federal courts play no role in overseeing congressional redistricting, thus leaving intact Maryland’s westernmost district, which Republicans had claimed was unconstitutionally redrawn by the state’s Democratic leadership to freeze out GOP voters and to ensure the election of a Democrat as U.S. representative.

Writing for the 5-4 majority, Chief Justice John G. Roberts Jr. said redistricting is a political question that must be left to elected representatives.

“Excessive partisanship in districting leads to results that reasonably seem unjust,” Roberts wrote in an opinion joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.

“But the fact that such gerrymandering is incompatible with democratic principles does not mean that the solution lies with the federal judiciary,” Roberts added. “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.”

Justice Elena Kagan led the dissenters in saying that courts can review redrawn political maps to determine if they are so excessively partisan as to violate the minority party’s First Amendment right to political association.

“For the first time ever, this court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” Kagan wrote in a dissent joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Sonia Sotomayor.

“The partisan gerrymanders in these cases deprived citizens of the most fundamental of their constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives,” Kagan added. “In so doing, the partisan gerrymanders here debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people. … If left unchecked, gerrymanders like the one here may irreparably damage our system of government.”

For Maryland Attorney General Brian E. Frosh, whose office defended the 6th Congressional District’s constitutionality before the justices, the Supreme Court victory is Pyrrhic.

Frosh’s office had argued that courts can review a redrawn district and deem it unconstitutional if the drafters went beyond “permissible political considerations” and engaged in “excessive partisanship” to silence the minority party.

“This is a sad day for our democracy,” Frosh said in a statement regarding the decision.

“We urged the Supreme Court to adopt a nationwide standard that would prevent extreme partisan gerrymandering,” he added. “The decision today instead prevents voters everywhere from challenging in federal court any redistricting map as excessively partisan. The attention now turns to Congress, which has the power to outlaw partisan gerrymandering of congressional districts.”

Michael B. Kimberly, lead attorney for the Republican challengers in the 6th District, said he and his clients were “deeply disappointed” with the high court’s decision.

“The focus now will be on state reforms, including possible litigation in state courts,” Kimberly said in a statement. “Partisan gerrymandering imperils our democracy. Its goal is to insulate those in power from accountability to the voting public. Nothing could be more undemocratic. We can’t stand idly by and allow gerrymandering to continue, and we won’t.”

Kimberly is with McDermott Will & Emery in Washington.

The high court’s decision overturned a three-judge U.S. District Court decision 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.

But the Supreme Court, by the slimmest of majorities, said judicial review of partisan redistricting would involve the courts in distinctly political decisions, unlike the courts’ more appropriate reviews of whether a congressional district discriminates against a minority group or violates the constitutional principle of one person-one vote.

“Unlike partisan gerrymandering claims, a racial gerrymandering claim does not ask for a fair share of political power and influence, with all the justiciability conundrums that entails,” Roberts wrote. “It asks instead for the elimination of a racial classification. A partisan gerrymandering claim cannot ask for the elimination of partisanship.”

The one-person, one-vote rule is “relatively easy to administer as a matter of math,” Roberts added. “The same cannot be said of partisan gerrymandering claims, because the Constitution supplies no objective measure for assessing whether a districting map treats a political party fairly. It hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support.”

But Kagan, in dissent, said federal district courts in Maryland and elsewhere that have found partisan gerrymandering unconstitutional have also developed workable solutions that now will not be implemented due to the high court’s decision.

“So the only way to understand the majority’s opinion is as follows: In the face of grievous harm to democratic governance and flagrant infringements on individuals’ rights – in the face of escalating partisan manipulation whose compatibility with the nation’s values and law no one defends – the majority declines to provide any remedy,” Kagan wrote. “But in throwing up its hands, the majority misses something under its nose: What it says can’t be done has been done. Over the past several years, federal courts across the country – including, but not exclusively in the decisions below – have largely converged on a standard for adjudicating partisan gerrymandering claims (striking down both Democratic and Republican districting plans in the process).”

Following the 2010 census, Maryland’s 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.

The Supreme Court, in its ruling, also rejected as unreviewable a Democratic challenge to a North Carolina redistricting as excessively favoring Republican voters.

The Supreme Court rendered its decision in the consolidated Maryland and North Carolina cases, Linda H. Lamone et al. v. O. John Benisek et al., No. 18-726, and Robert A. Rucho et al. v. Common Cause et al., No. 18-422


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