The Supreme Court said Friday that it will hear a challenge to Maryland’s congressional districts brought by seven Republican voters who say the state’s 2011 redistricting violated their First Amendment rights.
In a case that has been watched closely by state political leaders and that has already been to the Supreme Court once before, the seven voters will now have an opportunity to bring their novel argument before the justices: that the redistricting amounted to a retaliation against them because of how they voted.
The court heard a separate redistricting case in October filed by Wisconsin Democrats over that state’s legislative districts that some believed could have bearing on the Maryland litigation. Taking the second case suggests that redistricting will feature even more prominently during the court’s current term.
A three-judge panel in August ruled against the plaintiffs’ request to discontinue use of the state’s current congressional districts ahead of next year’s midterm election. In a 2-1 decision, the court wrote that an immediate fix of the maps would have the effect of “scuttling” other legislative priorities in next year’s General Assembly session.
The seven voters appealed to the Supreme Court days later.
“This case is unlike any previous challenge to partisan gerrymandering,” the Republican voters’ lawyer, Michael B. Kimberly, wrote in his appeal in September. “The fact that a gerrymander successfully changes the outcome of an election is strong evidence that the burden inflicted is real.”
Kimberly described the court’s decision to take the case as good news, but otherwise declined to comment. A spokeswoman for Maryland Attorney General Brian E. Frosh, who is representing the state in the case, also declined to comment.
The litigation is focused on Maryland’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 district helped John Delaney, a Potomac Democrat, unseat Republican Rep. Roscoe G. Bartlett.
The case is based on the contention that the state violated the First Amendment's prohibition against retaliating against an individual because of his or her speech or conduct. The voters argue that Republicans in the 6th District were penalized because of how they cast their ballots.
Justice Anthony Kennedy opened the door to that line of argument in a concurring opinion he wrote in 2004. In that case, Kennedy wrote that the First Amendment could be used as a basis of a redistricting lawsuit if plaintiffs could argue that a state law resulted in a "disfavored treatment" of some voters based on their political views.
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 in Maryland this year after lawyers sharply 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.
Gov. Larry Hogan, a Republican, has called for a nonpartisan redistricting commission, an idea Democrats in the state have flatly rejected. If Hogan wins a second term next year, it would give him considerable control over the 2021 redistricting, setting up a showdown with Democratic-controlled General Assembly
Democrats currently control seven of eight House seats in the state.
Lawyers for the state noted in a brief filed with the Supreme Court this fall that the congressional maps were approved by voters in a statewide referendum.
“An examination of the electoral circumstances at work in the 2012 election demonstrates that plaintiffs’ real complaint is that their preferred candidate did not win as he had in the past,” the lawyers wrote. “But that individual candidate’s loss is not traceable to any government action.”