Supreme Court allows First Amendment case against Md. districts

Maryland residents Stephen Shapiro, right, and John Benisek stand in front of the Supreme Court in Washington.
Maryland residents Stephen Shapiro, right, and John Benisek stand in front of the Supreme Court in Washington. (Jessica Gresko / Associated Press)

Describing Maryland's congressional district map as a "crazy quilt," a unanimous Supreme Court on Tuesday directed a lower court to listen to the argument of a Montgomery County law school student that the 2011 redistricting ran afoul of the First Amendment.

Writing for the court, Justice Antonin Scalia said the 4th Circuit Court of Appeals erred when it threw out a lawsuit by Stephen M. Shapiro of Bethesda that alleged the new map marginalized voters based solely on their party affiliation.


The First Amendment claim is a novel approach in a redistricting lawsuit. In a 9-0 decision, the justices said the lower court must convene a three-judge panel to review it.

"Perhaps petitioners will ultimately fail on the merits of their suit," Scalia wrote, "but [the law] entitles them to make their case."


The question before the high court was technical: Shapiro's lawsuit was dismissed last year by a district judge in Baltimore who said it did not meet the standard for convening a panel of judges to review his claim.

Shapiro appealed the decision, and the Supreme Court heard oral arguments last month.

But if successful, Shapiro's position has the potential to open a new line of legal attack for opponents of districts drawn with partisan aims. Most redistricting lawsuits have been brought under the 14th Amendment, not the First Amendment.

The court offered no opinion on Shapiro's theory. But Scalia did take a few jabs at Maryland's map.


"Maryland enacted a statute in October 2011 establishing — or, more pejoratively, gerrymandering — the districts for the state's eight congressional seats," he wrote.

Maryland's current congressional boundaries, crafted after the 2010 census by then-Gov. Martin O'Malley and Democrats in the General Assembly, drew criticism when they were unveiled. The contorted House districts, which bound together dissimilar communities across the state, helped Democrats oust longtime Republican Rep. Roscoe G. Bartlett in the 2012 election.

Though the maps were affirmed by voters in a 2012 referendum, they remain a point of political contention, and repeated litigation.

Republican Gov. Larry Hogan has proposed an independent commission to set district lines in the future. The idea has met with resistance from Democrats.

Shapiro, a former federal employee, learned of the court decision Tuesday as he was preparing for his finals at the American University law school.

He initially represented himself in the case, but now has a Washington-based lawyer, Michael B. Kimberly, who has taken it on pro bono.

"I'm gratified that the court has put voters of the 4th Circuit in the same standing as voters in the rest of the country — to be able to challenge congressional districts," Shapiro said.

The Supreme Court upheld the Maryland boundaries in a separate case in 2012.

While Tuesday's decision did not answer whether Shapiro has a legitimate constitutional claim, it will have a practical consequence: Decisions by three-judge panels can be appealed directly to the Supreme Court, meaning they move through the system faster.

That could make it easier for voters in the 4th Circuit to bring future redistricting challenges.

"The Supreme Court has provided clarity on the procedure to be followed in redistricting challenges, and the number of judges that must review such challenges," said David Nitkin, a spokesman for Maryland Attorney General Brian E. Frosh.

"The case did not address the substance of congressional maps in Maryland," Nitkin said in a statement. "The Office of the Attorney General will continue to fulfill our obligation to provide representation in support of the approved district maps."

The 4th Circuit — which covers the states of Maryland, Virginia, West Virginia, North Carolina and South Carolina — has taken a more liberal view of its ability to dismiss cases without convening the multi-judge panel.

Shapiro based his First Amendment claim on a 2004 concurring opinion by Justice Anthony Kennedy. Kennedy wrote that the First Amendment could be used as a basis of a redistricting lawsuit if plaintiffs could argue a state law resulted in a "disfavored treatment" of some voters based on their political views.

Scalia, avoiding discussion on the merits of the case, said it is inconceivable that a lawsuit based on a legal theory noted by Kennedy could be dismissed before it was considered by the three-judge panel.

"Whatever 'wholly insubstantial,' 'obviously frivolous,' etc., mean, at a minimum they cannot include a plea for relief based on a legal theory put forward by a justice of this court and uncontradicted by the majority in any of our cases," he wrote.


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