The Supreme Court wrestled Wednesday with whether a novel lawsuit challenging the constitutionality of Maryland's convoluted congressional districts could proceed, or whether a lower court judge was correct to toss it out on his own.
Stephen M. Shapiro, a former federal employee turned law student, argues that lower federal courts didn't properly review his claim that congressional districts drawn by state Democrats after the 2010 Census violated the First Amendment rights of voters, marginalizing them based on party affiliation.
The case, among the first heard by the high court this term, comes during a period of heightened scrutiny over the partisanship of congressional redistricting across the country. Maryland has become a flash point in that debate — and a source of frequent litigation — because watchdogs have described its districts as among the most gerrymandered in the nation.
The issue before the Supreme Court is narrower. Shapiro's case was dismissed last year by a district judge in Baltimore who said the lawsuit did not meet the standard for convening a panel of judges to review his claim. He wants the Supreme Court to clear the way for such a panel.
Michael B. Kimberly, an attorney representing Shapiro, said Wednesday that Congress intended for three-judge panels to review redistricting cases as a way to insulate them from politics.
"The public could rest more easy when decisions of such political importance and sensitivity are decided by three judges rather than one," he told the court.
Maryland's current congressional boundaries, crafted by then-Gov. Martin O'Malley and Democrats in the General Assembly, immediately drew criticism when they were unveiled in 2011. The state's contorted House districts helped Democrats oust longtime Republican Rep. Roscoe G. Bartlett in the 2012 election, and bound together dissimilar communities across the state.
On Tuesday, a commission appointed by Republican Gov. Larry Hogan recommended that the Democratic-controlled General Assembly cede political mapmaking to an independent panel. The commission suggested that the panel draw political boundaries without regard to party enrollment, an idea that would almost certainly change the shape of Maryland's eight House districts.
The 3rd Congressional District, currently represented by Democratic Rep. John Sarbanes, stretches from the Washington suburbs up to central Baltimore County. An often-quoted federal court opinion in 2011 described the district as "a broken-winged pterodactyl, lying prostrate across the center of the state."
Seven of Maryland's eight House seats are controlled by Democrats, even though one in four Maryland voters is registered with the Republican Party. Rep. Andy Harris of Baltimore County is the only Republican in the state's congressional delegation.
As recently as 2003, the state's congressional delegation was split evenly between the parties.
But the districts have survived multiple court challenges. The Supreme Court in 2012 affirmed a lower court's ruling that upheld the state's redistricting. And 64 percent of Maryland voters approved the congressional map when it was placed on the ballot for referendum in 2012.
And the same federal court that compared the 3rd District to a dinosaur also noted that the Constitution does not require "regularity of district shape."
The question before the Supreme Court in Shapiro's case is technical, and the arguments Wednesday did not touch directly on Maryland's congressional maps. The justices will decide whether a lower-court judge erred by dismissing the lawsuit instead of referring it to a three-judge panel.
The Maryland attorney general's office, which defends the state against legal challenges, argued Wednesday that Congress narrowed the circumstances that would require such a panel when it changed the law in 1976.
"Congress, if it had looked back at this court's case law, would have seen that this court regularly denied three-judge courts even where there was an important issue," Assistant Attorney General Steve M. Sullivan told the court.
Shapiro and his attorneys have said it is only the 4th Circuit that applies the more conservative standard on convening three-judge panels. That inconsistency, they said, is precisely why the Supreme Court must weigh in. The 4th Circuit covers the states of Maryland, Virginia, West Virginia, North Carolina and South Carolina.
"The issue today is whether citizens from the 4th Circuit states can bring such cases to court on the same basis as residents of all the other states in the country," Shapiro said outside the court.
Justice Antonin Scalia questioned the complexity that can arise when panels aren't convened. Plaintiffs might have to appeal their case all the way to the Supreme Court just to get a decision on whether a three-judge panel is justified. Then they would have to return to the lower courts to argue their case on the merits.
"So it goes all the way up, and if — if he loses in the court of appeals, he tries to come up here, right? And we finally decide it did state a claim. Then what happens? It goes back down and you begin all over again with a three-judge court, right?" Scalia asked.
"Wow," Scalia said. "Wow, that's — I mean, that's my comment."
Most redistricting lawsuits have been brought under the 14th Amendment right to equal protection under the law. If Shapiro's First Amendment claim is heard by a three-judge court and is ultimately successful, it could open a new line of attack for those alleging political gerrymandering.
"All of the pieces for putting together a First Amendment claim are there in the court's precedents, and for whatever reason litigants haven't pieced the parts of the puzzle together," Kimberly, who is representing Shapiro pro bono, told reporters. "If any case is capable of doing that … this is it. I hope that we get our chance before a three-judge court to test the theory."
Shaprio, a Bethesda man, filed the lawsuit without an attorney in 2013. The experience of navigating a complicated area of the law on his own prompted him to quit his job and pursue a law degree at American University this year.
Though he now has Kimberly to represent him, Shapiro has received attention for being a first-year law student with a case before the Supreme Court. He jokingly noted that he had to skip class Wednesday to attend the argument.
"We'll see if I graduate before this gets resolved," he said.