Supreme Court picks up gerrymander case with potential implications for Maryland

and Contact ReporterThe Baltimore Sun

The Supreme Court agreed Monday to hear a major challenge to partisan gerrymandering in a case that could have implications for Maryland, where the state's contorted congressional maps are being contested in a separate but similar federal case.

The challenge to the Wisconsin legislative map, to be heard by the high court in the fall, could yield one of the most important rulings on political power in decades.

The separate Maryland case is pending before a three-judge federal court.

Gerrymandering, the practice of drawing boundaries for political advantage, often producing bizarre-shaped districts resembling spiders or salamanders, has long drawn criticism. Several studies have suggested Maryland — where Democrats have turned a 2-1 advantage in voter registration into a House delegation with seven Democrats and one Republican — has one of the most gerrymandered congressional maps in the nation.

Supreme Court justices have lamented partisan mapmaking, but the court has failed to agree on a legal standard to decide when an effort to draw political advantage into a district crosses the line. The Wisconsin and Maryland cases are proposing different standards for how to determine whether a map is unconstitutional.

A decision in the Wisconsin case could have an impact on the Maryland litigation, or trigger a new case.

"It certainly could put limits on Maryland," said Danielle M. Lang of the Campaign Legal Center, a Washington-based group representing the plaintiffs in the Wisconsin case. "We certainly hope that ... our case can provide a meaningful standard."

A loss in the Wisconsin case would not likely keep the Maryland case from going forward.

"The two cases involve independent and complementary theories, which should give us two at-bats for the home run we need to resolve this very difficult legal problem," said Michael B. Kimberly, an attorney representing the plaintiffs in the Maryland case.

A spokeswoman for the Maryland attorney general did not respond to a request for comment. The state has until the end of the month to argue against the plaintiffs' motion for an injunction that would force the state to begin the process of redrawing the maps for the 2018 midterm election.

The Maryland litigation is focused on the state's 6th Congressional District, which state Democrats redrew in 2011 to benefit their party. Adding heavily Democratic portions of Montgomery County to the Western Maryland-based district helped John Delaney, a Potomac Democrat, unseat Republican Rep. Roscoe G. Bartlett.

In depositions in that case made public last month, former Gov. Martin O'Malley acknowledged what had been widely assumed: That mapmakers relied on voting patterns and party enrollment to try to make the district favorable for Democrats.

The lawsuit, brought by several Republican voters, is based on the novel argument that the state violated the First Amendment's prohibition against retaliating against an individual because of his or her speech or conduct. They say Republicans in the 6th District were penalized because of how they cast a ballot.

The fact that the Maryland case is focused on a single district may be legally significant, because it is not clear that a resident in one district has legal standing to challenge the way lines are drawn in another district.

The Wisconsin plaintiffs argue that so-called partisan asymmetry should be a factor in determining whether a map is unconstitutional. For instance, in that state's 2014 election, Republican candidates for state Assembly won 52 percent of the statewide vote, according to the lawsuit, but captured nearly 64 percent of the chamber's seats.

A similar disconnect exists in Maryland's congressional districts. In the 2014 election, for instance, 41 percent of all state voters selected a Republican candidate for the House of Representatives. But in that election, Democrats won more than 87 percent — or seven of eight — of Maryland's congressional seats.

Politicians have long practiced gerrymandering, but computers have made it a more exact science. Carefully drawn maps can all but assure the party in power at the beginning of the decade — when districts are determined — will maintain control of the state legislature and win most of the state's seats in the House of Representatives.

Democrats maintain that the GOP has used its control of electoral maps after the 2010 census to give Republicans an unfair grip on power in Congress.

For example, Pennsylvania, Ohio and Michigan are closely divided states in terms of party affiliation and all voted for former President Barack Obama. But 34 of their 48 House representatives are Republicans thanks largely to partisan gerrymandering.

The Supreme Court rejected North Carolina's electoral map in a separate case because Republicans there used race in a effort to create more GOP-leaning districts. The state sends 10 Republicans and three Democrats to the House, even though statewide races often reflect a population that is narrowly divided.

Democrats have played the same game, but they control far fewer states.

Whether the justices will see the process as politics as usual or an unconstitutional rigging of elections is unclear. In the past, the Supreme Court has viewed political gerrymandering as distasteful, but not illegal. The justices have ruled against gerrymandering along racial lines, but have never struck down an electoral map because it was unfairly partisan.

Voting rights advocates are hopeful this time will be different. They say party leaders in Wisconsin have gone too far in rigging their system in their favor.

Paul Smith, a Washington lawyer for the Campaign Legal Center who represents a dozen Democratic voters in Wisconsin, said partisan gerrymandering "is worse now that any time in recent memory."

The map has all but assured the GOP will win a super majority of seats in the assembly, even when more votes are cast statewide for Democrats than for Republicans.

A three-judge federal court agreed with the challengers last year, and ruled 2-1 that the Wisconsin map was unconstitutional. The map's "motivating factor" was an "intent to entrench a political party in power," said Judge Kenneth Ripple, a Reagan appointee to the 7th Circuit Court in Chicago.

The Republican National Committee does not share that assessment. Its lawyers urged the Supreme Court to take up the Wisconsin case and uphold the state's map. They argued their party's advantage reflects the "reality of political geography." They say Democratic voters are concentrated in the cities, giving the GOP a big edge elsewhere.

"The Constitution contains no right to proportional representation in legislative bodies based on statewide totals," they argued.

Wisconsin's attorney general directly appealed to the Supreme Court. The state's lawyers said the districts were compact and neatly drawn. They said the Democrats are at a disadvantage because their voters are concentrated in Milwaukee and Madison.

They urged the court to overturn the lower-court ruling and throw out the claim on the grounds that redistricting is a political process, not a legal one. They also won a procedural ruling on Monday that could be a good omen for the Republicans.

Shortly after announcing the court would hear the Wisconsin case, the justices issued an order that put on hold the lower court's decision that required Wisconsin lawmakers immediately redraw the map for its legislative districts. The order came on a 5-4 vote. The four Democratic appointees dissented.

david.savage@latimes.com

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