Supreme Court case based in Md. could have wide impact

Bethesda man's fight against redistricting winds up at the Supreme Court

A little-noticed lawsuit brought by a Maryland man challenging the state's contorted congressional districts will be heard this fall by the Supreme Court — where it has the potential to open a new line of constitutional attack for opponents of gerrymandering.

Stephen M. Shapiro, a former federal worker from Bethesda, argues that the political map drawn by state Democrats after the 2010 census violated the First Amendment rights of Republicans by placing them in districts in which they were in the minority, marginalizing them based solely on their political views.

The issue before the Supreme Court is whether a lower court judge had the authority to dismiss the suit before it was heard by a three-judge panel. But Shapiro hopes the justices will also take an interest in his underlying claim.

Most redistricting court challenges are rooted in the 14th Amendment right to equal protection under the law. If Shapiro's approach is endorsed by federal courts, supporters say, it could open a new approach to challenging partisan political maps.

"Once you open the window of this case, it presents a fascinating question of First Amendment law," said Jeremy D. Farris, an attorney representing the good-government group Common Cause.

No one paid Shapiro much attention when he filed the suit in 2013. By then, the map drawn by state Democrats after the 2010 census already had been approved by voters and upheld three time by a federal court. Shapiro, who has no legal training, was representing himself — another sign his case was going nowhere.

"Not being a lawyer, it wasn't the easiest undertaking in the world," he said. "I just felt it was not something that we as a state or a party should be doing."

The case, filed against state election officials, heads to oral arguments this fall as redistricting has emerged again as a potent issue nationally and in Maryland.

Some analysts say the state's congressional districts, drawn in 2011 by then-Gov. Martin O'Malley and Democrats in the General Assembly, are among the most convoluted in the country. Republican Gov. Larry Hogan, O'Malley's successor, created a commission last month to study possible reforms.

The map helped Maryland Democrats oust longtime Republican Rep. Roscoe G. Bartlett in 2012 and secure seven out of eight House seats for their party a remarkable feat in a state where one in four voters registers with the GOP, and where, as recently as 2003, the delegation was split evenly between the parties.

"Maryland is maybe the worst in terms of gerrymandered states," said Tom Fitton, president of Judicial Watch, a conservative watchdog group that filed a brief supporting Shapiro's position. "It really is an outlier."

Shapiro's case, which also has drawn support from Common Cause and the Virginia NAACP, has the potential to answer two questions.

The first deals with the circumstances under which a single judge may dismiss a redistricting lawsuit rather than referring it to a three-judge panel.

Supporters say Congress intended redistricting cases, which are often inherently political, to be heard by panels. But in Shapiro's case, a district court judge ruled last year that the suit was so obviously frivolous that the law didn't require a panel — and dismissed it himself.

Shapiro said that decision, which was affirmed later by the 4th Circuit Court of Appeals, was incorrect.

If he's right, the high court could limit the circumstances under which an individual judge in the 4th Circuit could dismiss similar cases. But if the justices rule against Shapiro, it might allow other courts across the country more latitude to toss such cases.

The procedural dispute, while arcane, has a practical consequence: Decisions by three-judge panels can be appealed directly to the Supreme Court, meaning they move through the system faster.

"The reason this matters is that challenges to redistricting and other voting rights [issues] … really need to be decided quickly," said Michael B. Kimberly, an attorney with Mayer Brown who now is representing Shapiro pro bono.

"It doesn't do voters much good if it takes four or five years to get a ruling on the constitutionality," he said.

Supporters hope the justices will do more than settle the procedural question however. They hope the court also will offer guidance about Shapiro's underlying claim.

For decades, redistricting lawsuits have been grounded in the Equal Protection clause. But state parties have figured out how to draw lines to their liking without running afoul of that amendment, which has prompted good-government advocates to pursue a different approach for their complaints.

Justice Anthony Kennedy has suggested one such path. Kennedy, long considered a swing vote on the bench, wrote in a concurring opinion in 2004 that the First Amendment could be used as the basis of a redistricting lawsuit if plaintiffs could argue that a state law resulted in a "disfavored treatment" of some voters based of their political views.

That, in essence, is what Shapiro argued.

"Plaintiffs have been looking for a way to find a standard on partisan gerrymandering that Justice Kennedy would support," said Joshua A. Douglas, a law professor at the University of Kentucky, who specializes in constitutional and election law.

Farris, a lawyer at Bondurant Mixson & Elmore, argued in an amicus brief that the First Amendment should prohibit state legislatures in most cases from considering political affiliation and voting history when drawing the lines, in the same way it denies states from removing Catholic voters from a district to create a Protestant majority.

Maryland officials are not swayed. In its initial brief this year, the Maryland attorney general's office pointed to the district court's ruling. The court found that nothing about an odd-looking congressional district affects a voter's ability to participate in political debate, to join a political committee or to "use whatever other means are at their disposal to influence the opinions of their congressional representatives."

A spokesman for Attorney General Brian E. Frosh declined to comment on the potential impact of the case.

Observers say they are not surprised the Maryland map has drawn attention. While federal courts have upheld the state's districts on constitutional grounds, they have made their distaste clear.

One judge compared the 3rd District, currently represented by Democratic Rep. John Sarbanes, to a "broken-winged pterodactyl."

Hogan, who campaigned on a promise to address redistricting, has created a commission to recommend changes to the state's mapmaking process to the General Assembly.

Democrats have been cool to the idea. They note that Republicans are just as adept at drawing lines to their advantage in states where they control the process.

Several states — notably, California — use independent panels to draw the boundaries. The Supreme Court this year turned back a challenge to the constitutionality of such a commission in Arizona, where GOP leaders objected to the result of the process.

Shapiro has been fighting Maryland's redistricting for 25 years, starting with lines drawn after the 1990 census. He has testified in Annapolis and lobbied state lawmakers.

When those approaches failed, he decided to file the lawsuit.

At first, he said, the task was daunting. But as time went on, he said, he became increasingly confident in his court filings.

No matter the outcome of his case, it already has had a profound impact on Shapiro personally: Last week, the 54-year-old enrolled in law school.

john.fritze@baltsun.com

twitter.com/jfritze

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