Baltimore Sun

Supreme Court hears objections to Md. congressio­nal districts

- By John Fritze

WASHINGTON – Supreme Court justices pummeled Maryland’s meandering congressio­nal districts on Wednesday as they heard arguments in a high-profile case that some hope will reduce political influence in the decennial redistrict­ing process.

As they have in past cases, the justices criticized Maryland’s congressio­nal map — with some saying the litigation offered clear evidence of the political motivation­s behind its design. But the court also appeared to wrestle with setting a standard for just how far mapmakers may go in pursuit of political advantage.

“Part of the issue here is you have people from … Potomac joined with people from the far west panhandle,” said Chief Justice John G. Roberts Jr., pointing to the state’s sprawling 6th Congressio­nal District. “I mean, they both have farms but the former, hobby farms.”

The lawsuit, brought by seven Republican voters living in Maryland’s 6th

District, turns on whether the First Amendment may be used to reject a gerrymande­red map. The voters contend that Democrats in Annapolis violated their First Amendment rights with the 2011 redistrict­ing by punishing them for their GOP voting history.

In a state where Democrats outnumber Republican­s two to one, Maryland’s mapmakers turned an eight-member House delegation that was split evenly in 2000 into one that now has seven Democrats and one Republican.

At issue in the case before the Supreme Court is the 6th District, which was represente­d by Republican Rep. Roscoe G. Bartlett for 20 years. Democrats in Annapolis redrew the lines in 2011 to scoop heavily Democratic neighborho­ods in Montgomery and Frederick counties into the district, overwhelmi­ng the Republican tilt of Western Maryland. In the election that followed, Democratic newcomer John Delaney unseated Bartlett and has won re-election twice.

“People were very upfront about what they were trying to do here, which was to create another Democratic district. And they did that,” said Justice Elena Kagan. “How much more evidence of partisan intent could we need?”

But Justice Samuel A. Alito Jr. was among several of the court’s conservati­ves who questioned the practical implicatio­ns of allowing voters who are disadvanta­ged by the maps to sue.

“I really don't see howany legislatur­e will ever be able to redistrict,” Alito said. “Hasn't this court said time and again you can't take all considerat­ion of partisan advantage out of districtin­g?”

Though the litigation is focused on the 6th District, several others in Maryland have received more attention from advocates for reform. The state’s 3rd District, in particular, is often held up as the epitome of a gerrymande­red boundary, winding its way through Baltimore City and four counties. The lines are drawn so that three of the state’s eight House members — two Democrats and one Republican — live in Baltimore County.

The case is one of two before the court that could have implicatio­ns for the way congressio­nal maps are drawn. Computeriz­ed mapmaking has made it easier to design a district that leans one way or the other, and some political scientists blame the current polarizati­on of national politics on districts that are competitiv­e only in primary elections.

The court heard arguments in a Wisconsin legislativ­e redistrict­ing case in October, and the justices put a congressio­nal redistrict­ing case from North Carolina on hold this year.

Justice Stephen G. Breyer raised the idea of hearing those cases together so the court could weigh the legal theories presented by each.

“You could have a blackboard and have everyone's theory on it, and then you'd have the pros and cons and then you'd be able to look at them all,” he said.

“I do think it makes sense to think about them all together because I think the consequenc­es of not adopting one or the other theory is alarming and ought to be alarming to anybody,” said Michael B. Kimberly, who is representi­ng the voters in the Maryland case.

The legal theory arguing a First Amendment basis for ordering districts to be redrawn is based on a concurring opinion written by Justice Anthony M. Kennedy in 2004. In that case, Kennedy wrote that the First Amendment could be used as a basis if plaintiffs could argue that a state law resulted in a "disfavored treatment" of some voters based on their political views.

It’s not clear whether there would be time to redraw the maps for the 2018 midterm election if the court sided with the Republican voters.

The case has been to the Supreme Court once before. Describing Maryland's congressio­nal district map as a “crazy quilt,” a unanimous court decided in 2015 that the litigation could be considered by a panel of lower court judges.

The decision overturned a ruling that found the case did not meet the standard for convening that panel.

Filed in 2013, the lawsuit drew renewed interest last year after lawyers questioned former Gov. Martin O’Malley, a Democrat, and leaders of the General Assembly about the motivation­s behind the 2011 congressio­nal redistrict­ing. In a deposition, O’Malley acknowledg­ed what was widely known but rarely said: that Maryland Democrats used the redistrict­ing to flip the 6th Congressio­nal District from a reliably Republican seat to one far more competitiv­e for their party.

That assertion was reinforced this week by a cache of documents reviewed by The Baltimore Sun that showed state officials at the time raising concerns internally about the redistrict­ing process.

O’Malley has since embraced the idea of nonpartisa­n redistrict­ing commission­s.

On that issue, O’Malley agrees with his successor. Gov. Larry Hogan, a Republican, has called for a nonpartisa­n redistrict­ing commission but has drawn little support fromDemocr­atsinAnnap­olis. If Hoganwins a second term this year, it would give him considerab­le control over the 2021 redistrict­ing, setting up a showdown with the Democratic-controlled General Assembly.

Reprising an argument often embraced by supporters of the map, Maryland Solicitor General Steven M. Sullivan told the court that the districts had been approved in a 2012 referendum. A ruling for the GOP voters, Sullivan said, would be a “blow against democracy.”

Breyer appeared to take issue with that argument, reading aloud the legalese of the referendum measure.

“I think your your friends on the other side suggest that the phrasing of the question on the referendum was opaque,” Roberts interjecte­d.

“This referendum was not held in a vacuum,” said Sullivan, pointing to a state court decision in which the ballot language was found to be sufficient.

“The court said we're not going to presume that the voters are not smart enough or well-informed enough to make their decisions.”

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