Supreme Court wrestles with how political is too political in Maryland redistricting case

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 reelection 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 how any 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 go forward and 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 from Democrats in Annapolis. If Hogan wins a second term this year, it would give him considerable control over the 2021 redistricting, setting up a showdown with the Democrat-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.”

john.fritze@baltsun.com

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