Maryland Gerrymander Case Offers Unique Test to High Court

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.

“They’re just trying to do this whole Houdini escape-type of move,” Bybee said. “I don’t even have to get into the different metrics of proportionality or disproportionality or wasted votes or any of that stuff. If I can just show that you drew this district to punish Republicans, then that’s a violation of the free-speech rights and association rights of Republicans, and it shifts the burden onto the state to prove that they weren’t.”

But the state warns the court adopting the Republicans’ framework for partisan gerrymandering would lead to an avalanche of challenges to individual congressional districts throughout the country, without providing a reliable method for determining which to strike and which to uphold.

“Although the plaintiffs purport to leave room for ‘permissible’ partisanship and a ‘de minimis’ effect on their voting strength, they do not define what that means, thereby leaving it for courts to assess on some indeterminate basis,” the state’s brief states. “By dodging the problem, the plaintiffs’ proposed standard threatens to render any partisan motive fatal to redistricting – something that this court has already rejected.”

The Maryland challenge is also to just a single district, while the Wisconsin plaintiffs asked the justices to take an ax to the entire state map. The Maryland plaintiffs argue this limited challenge makes adjudicating gerrymandering claims more manageable.

Richard Briffault, a professor at Columbia Law School, said the single district challenge gives the court a second option for justifying its involvement in partisan gerrymandering cases.

“They’re able to actually point to an oddity in the way in which the district lines were drawn and then there are smoking gun statements about why it was done that way,” Briffault said in an interview.

But this also makes the case a battle over the true nature of the 6th District. While the Republicans point to the 1991 map as the barometer, the state points out Democrats had an even tighter grip on the district before then.

Even with these differences, Justice Anthony Kennedy remains the target of both petitions. Kennedy’s concurring opinion in the 2004 case Vieth v. Jubelirer has served as a beacon for challengers to partisan gerrymanders, as the Reagan appointee invited someone to develop a workable test by which to judge such claims.

That opinion, combined with Kennedy’s interest in the First Amendment, makes him likely to be the justice to tip the balance in both cases, Bybee said.

“There’s some speculation involved, you’re speculating what some justices who haven’t had a crack at partisan gerrymandering will say,” Bybee said. “But every indication seems to be that this, like so many controversial issues, is going to turn on what Justice Kennedy thinks.”

Beyond the merits of either claim, court experts have searched for meaning in the court’s decision to grant the Maryland case without having handed down a decision in the Wisconsin challenge.

Some believe the decision could be a good sign for those who want courts to get more involved in partisan gerrymandering claims. They reason the court agreed to hear the case because it wants to avoid the appearance of partisanship by handing down twin decisions, one striking down a Republican gerrymander and another striking down on from Democrats.

“If you have two cases like this, and let’s say the court ends up intervening and deciding to come to some kind of an agreement on a test that can actually be used to strike down partisan gerrymandering,” Bybee said. “And if it uses that test to call into question, if not outright invalidate, redistricting plans, I think it wants to, in order to avoid the perception of rank, petty partisanship, strike down districting plans from each side. It’s a sort of ‘curse on both your houses’ approach.”

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