Challenge to Maryland Gerrymandering Revived | Courthouse News Service
Tuesday, November 28, 2023
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Challenge to Maryland Gerrymandering Revived

WASHINGTON (CN) - A federal judge improperly disposed of a challenge to Maryland gerrymandering without convening a three-judge panel, the U.S. Supreme Court ruled Tuesday.

Stephen Shapiro, O. John Benisek and Maria Pycha filed the lawsuit pro se after the Maryland Legislature set new district lines for the state's eight congressional seats in 2011.

They appealed to the Supreme Court after the Fourth Circuit summarily affirmed a federal judge's decision to dismiss the action.

The basis for their challenge hinged on Section 2284(a) of Title 28, which since 1976 has required a three-judge panel to hear any action "challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body."

Per that statute, the judge who catches the case fills one of the three seats on the panel, and he informs the district's chief to appoint two others for the case.

Though the statute says the judge to whom the case was presented must immediately notify the chief judge of the circuit to designate the two other judges, it also contains the language "unless he determines that three judges are not required."

State elections board officials seized on that phrase to say that the statute granted the judge here the authority to dismiss Shapiro's challenge without beginning the procedures that would convene a three-judge panel.

The U.S. Supreme Court disagreed and unanimously reversed Tuesday.

"Whatever the purposes of a three-judge court may be, respondents' argument needlessly produces a contradiction in the statutory text," Justice Antonin Scalia wrote for the court. "That text's initial prescription could not be clearer: 'A district court of three judges shall be convened ... when an action is filed challenging the constitutionality of the apportionment of congressional districts.' Nobody disputes that the present suit is 'an action ... challenging the constitutionality of the apportionment of congressional districts.' It follows that the district judge was required to refer the case to a three-judge court, for §2284(a) admits of no exception, and 'the mandatory "shall" ... normally creates an obligation impervious to judicial discretion.'" (Emphasis added in ruling.)

As for the "unless" language, Scalia said the provision "need not and therefore should not be read as a grant of discretion to the district judge to ignore §2284(a)."

"It is not even framed as a proviso, or an exception from that provision, but rather as an administrative detail that is entirely compatible with §2284(a)," Scalia added. "The old §2284(1) triggered the district judge's duty to refer the matter for the convening of a three-judge court 'on the filing of the application' to enjoin an unconstitutional state law. By contrast, the current §2284(b)(1) triggers the district judge's duty 'upon the filing of a request for three judges.'" (Emphasis added in ruling.)

"Whether in good faith or bad, through ignorance or hope or malice," a party can always ask the court to convene a three-judge panel, according to the ruling.

"Section 2284(b)(1) merely clarifies that a district judge need not unthinkingly initiate the procedures to convene a three-judge court without first examining the allegations in the complaint," Scalia wrote. "In short, all the district judge must 'determine' is whether the 'request for three judges' is made in a case covered by §2284(a) - no more, no less."

Scalia said the challenge by Shapiro here "easily clears" the hurdle.

"Perhaps petitioners will ultimately fail on the merits of their suit, but §2284 entitles them to make their case before a three-judge district court," the eight-page opinion concludes.

Scalia opened the ruling with a note that three-judge courts were more common before the law change in 1976, saying they were used previously for any injunction-based case "restraining the enforcement, operation or execution of any state statute ... upon the ground of the unconstitutionality of such statute."

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