Maryland Del. Haven Shoemaker, R-District 5, and 20 of his Republican colleagues in the House of Delegates have signed a letter to Attorney General Brian Frosh asking that he recuse himself from a court case involving alleged gerrymandering.
The case, Benisek v. Lamone, is currently before a three-judge panel in the U.S. District Court in Baltimore and stems from a lawsuit brought by plaintiffs alleging unfair gerrymandering in Maryland's 6th congressional district.
The district, which encompasses most of Western Maryland and had previously included Carroll County, was redrawn by the Democrat-controlled General Assembly following the 2010 census and now excludes Carroll, but incorporates portions of Montgomery County, a Democratic stronghold. Represented by Republican Congressman Roscoe Bartlett for two decades, Democrat John Delaney won the seat in the redrawn District 6 in 2012.
District 6 residents filed the suit in 2013, alleging that the redistricting plan was politically motivated and violated their First Amendment rights, as well as their right to representation under Article 1 Section 2 of the U.S. Constitution.
Frosh, a Democrat, has argued that there is no evidence the General Assembly targeted individual Republicans for retribution. He also noted that a voter isn't entitled to be represented in Congress by someone of like mind.
"All of plaintiffs' arguments hinge on a single false premise: That individuals who affiliate with a party have a right to maintain electoral successes gained by their party under prior redistricting maps," Frosh wrote in June. "Plaintiffs have produced no evidence that any decision maker 'specifically intended to burden the representational rights of certain citizens.'"
Frosh has called for the federal court to dismiss the lawsuit.
In their letter, dated Thursday, Aug. 10, Shoemaker and his colleagues argue it is inappropriate for Frosh to defend the redistricting plan given his past role in the Democratic Senate leadership — Frosh served on the Senate Committee on Reapportionment and Redistricting before being elected attorney general in 2014.
"Since you personally had a hand in drawing congressional districts at the direction of the Democratic leadership of the General Assembly, you could (and perhaps should) be called as a witness by the plaintiffs in the referenced lawsuit," Shoemaker wrote in the letter. "The Maryland Rules of Professional Conduct for attorneys state in Rule 19-303.7(a) that an attorney shall not act as an advocate at a trial in which the attorney is likely to become a witness."
Shoemaker and his colleagues suggest the appointment of a "retired attorney general or former member of the judiciary to act as a special assistant attorney general in this matter."
Christine Tobar, deputy director of communications for the attorney general, said the office hadn't received the letter, but upon reading an email copy forwarded from the Times, disputed Shoemaker's reading of the relevant section of the rules of Professional Conduct.
"The Attorney General is not going to be an advocate at trial. The Attorney General is not a necessary witness," she wrote in an email Thursday. "Delegate Shoemaker obviously failed to read the rule or he failed to understand it."
Shoemaker, in turn, disagreed.
"I am familiar with the rule; I've read it a couple of times in 25 years of practicing law. The fact of the matter is, he is a potential witness as I pointed out in my letter," Shoemaker said. "I disagree with him vehemently."
In July, the three-judge panel agreed with the plaintiffs that there is convincing evidence the state's Democratic leaders drew the districts to favor their party, but were divided on whether the redrawing of District 6 directly caused Bartlett to lose his seat in 2012. Such a ruling, if and when it comes, could require the General Assembly to redraw their redistricting map before the 2018 elections.
An appeal of the eventual decision by the three judges, by either side, would send the case to the U.S. Supreme Court.
Another partisan gerrymandering case, however, will likely get there first. The Supreme Court is set to hear Gill v. Whitford in October, a case on appeal by the State of Wisconsin after a three-judge panel in that state ruled in favor of Democratic voting plaintiffs that argued redistricting there had unfairly favored Republicans.
Gerrymandering, Shoemaker said, is wrong, whether conducted by Republicans or Democrats, and he suspects the Supreme Court could render moot his concerns by virtue of a decision in Gill v. Whitford.
"In the meantime," he said, "Frosh needs to recuse himself."
Frosh was granted the ability to sue the federal government independent of the governor and General Assembly under the Maryland Defense Act of 2017, or MDA, a resolution legislators passed swiftly along party lines in February.
"Our office has done precisely what the MDA calls for: we have acted to protect the citizens of our state from the policies of the Trump administration that threaten our health, our livelihoods, our environment and the Chesapeake Bay," Frosh wrote in a statement to the media.