WASHINGTON (CN) - The Supreme Court will dive into partisan gerrymandering Wednesday for the second time in less than six months, as a group of Maryland Republicans attempt to show that state lawmakers redrew their congressional district to punish their political affiliation.
The Maryland Legislature redrew its 6th Congressional District in 2011, dragging the boundaries of the historically Republican district down into reliably liberal Montgomery County. Even though the recent census did not mandate a large shift in population, the new map shuffled more than 66,000 registered Republican out of the district while ushering in 24,000 registered Democrats.
Rep. Roscoe Bartlett, the Republican who represented the Sixth District since 1991, lost his seat by 21 points in the first election after the redraw, having won the previous election by 28 points. Led by O. John Benisek, a group of Republicans challenged the redistricting on the basis of their First Amendment rights to association.
"In this case, Maryland lawmakers singled out the Republican-voting residents of the old Sixth District for vote dilution because of their historical support for Republican Congressman Bartlett," the Maryland plaintiffs' brief before the Supreme Court states (emphasis in the original). "The lawmakers' goal was clear: to dilute Republican voter strength enough to prevent the reelection of Mr. Bartlett and to depress Republican engagement in the area."
The case went through lengthy discovery, eliciting a number of statements from state lawmakers seen by the Republicans as incriminating.
In refusing to enjoin the map, however, a panel of federal judges said the Republicans lacked proof that the redistricting plan caused their poor electoral performance or that the Democrats' advantage would endure.
In many ways, the Maryland case is a mirror image of Whitford v. Gill, a challenge of Republican-led redistricting in Wisconsin that the Supreme Court heard in October. While courts have developed a method for assessing racial gerrymandering claims, a reliable test for partisan gerrymandering has remained elusive.
Both sets of plaintiffs claim to have found one, but the Maryland Republicans urge the justices to take a slightly different path to getting involved in partisan gerrymandering.
First, and perhaps most notably, the Maryland case rests on the First Amendment, with the plaintiffs claiming the way the Maryland Legislature redrew the 6th Congressional District infringed on their rights to speech and association by punishing them for their voting history.
The plaintiffs in Wisconsin, who are Democrats, claimed on the other hand that their state's map violated the Constitution's equal-protection clause.
The Maryland plaintiffs argue that, by framing partisan gerrymandering through the First Amendment, judges can rely on their ample precedent for assessing when state law tramples such rights to determine when a gerrymander has gone too far.
The First Amendment framework also means the Maryland plaintiffs do not inundate the justices with the stream of social-science metrics cited by the Wisconsin plaintiffs as proof that their map unfairly advantaged Republicans.
Keith Bybee, vice dean of the Syracuse University College of Law, said abandoning these metrics, which Chief Justice John Roberts referred to as "gobbledygook" at the Wisconsin arguments in October, in favor of a more generalized First Amendment claim could be key to nailing down the justices.