By Steve Lash
BridgeTower Media Newswires
BALTIMORE — The judicial process moves slowly. Perhaps never more so than when the U.S. Supreme Court appears on the verge of redefining constitutional law in an area of representative democracy long presumed to be the province of state legislatures and the belief that to the winners go the spoils.
In 2019, a group of Republican voters from western Maryland will likely present to the high court their final argument that a congressional district can be so severely drawn by the party in power at the state level — the Democrats — as to violate the constitutional right of the minority to political association.
The GOP voters, through counsel, presented that case to the justices in 2018, but their argument, for emergency action, was turned aside as premature.
The case is back before the Supreme Court, awaiting a decision by the justices on whether they will hear the state’s appeal of a lower court ruling that Maryland’s 6th Congressional District is unconstitutional and must be redrawn to achieve a partisan balance.
And it will be at the Supreme Court where the fate of partisan gerrymandering in Maryland will be decided, because the General Assembly’s Democratic majority has shown no desire to initiate change in the way congressional districts are redrawn in the state, said political science professor Todd Eberly.
“The Democratic leadership in the assembly is going to use the appeal, for lack of a better word, to do nothing,” added Eberly, who teaches Maryland politics at St. Mary’s College of Maryland. “They don’t want to give up power. People in power don’t want to give up power; they just want more power.”
But law professor Mark Graber said waiting for the high court to rule might ill-serve the legislature’s Democratic majority. He said the General Assembly should redraw the district to assuage constitutional concerns in advance of a Supreme Court decision.
“I think if the Maryland legislature were smart it would do the redistricting and moot the case,” said Graber, who teaches constitutional law at the University of Maryland Francis King Carey School of Law.
Removing Maryland from the constitutional equation would also benefit the Democratic Party, as most partisan gerrymanders being challenged through litigation in the nation’s courts favor Republicans, Graber added.
“The country doesn’t like the gerrymanders,” he said. “I think it’s something the Democrats can run on.”
The constitutionality of North Carolina’s pro-Republican gerrymander is also on appeal to the justices. That case is Robert A. Rucho et al. v. Common Cause et al., No. 18-422.
Graber predicted that the Supreme Court, by a slim majority, will not strike down partisan gerrymanders as unconstitutional.
“This is a case where law and politics may converge,” Graber said. “This is a court where at least its majority has not been willing to find partisan gerrymanders.”
The General Assembly’s Democratic leaders — Senate President Thomas V. Mike Miller Jr. and Speaker Michael E. Busch — declined through spokespeople to comment on potential redistricting legislation in the coming session, which begins Jan. 9.
During the Supreme Court arguments last March, Justices Elena Kagan and Sonia Sotomayor indicated that Maryland’s 6th Congressional District would be Exhibit A if partisan gerrymandering is found unconstitutional.
“People were very upfront about what they were trying to do here,” Kagan said, citing deposition testimony of then-Gov. Martin O’Malley, Miller and Busch in the GOP voters’ litigation.
Sotomayor said the Republican voters challenging the redrawn district’s constitutionality “certainly have enough (evidence) to go to a jury on that question.”
Following the Supreme Court’s remand, a three-judge panel in the U.S. District Court in Baltimore last month declared the 6th District unconstitutionally drawn to favor Democrats running for the congressional seat and ordered it redrawn.
That decision and order have been put on hold as Maryland Attorney General Brian E. Frosh, a Democrat, has appealed the ruling to the justices.
The high court has not said when it will vote on whether to hear Frosh’s appeal in the case, Linda H. Lamone et. al. v. O. John Benisek et al., No. 18-726.
Maryland Gov. Larry Hogan, a Republican, said he is not willing to wait for the Supreme Court and has created a nonpartisan commission to propose a redrawn 6th District by the spring, in keeping with the three-judge panel’s decision.
The General Assembly redrew the 6th District following the 2010 U.S. Census to include a significant swath of Democrat-rich Montgomery County.
Republicans claim that action was a deliberate effort to dilute their vote from the state’s five western counties, thereby ensuring the election of a Democratic representative over the then-GOP incumbent. (The lawsuit initially challenged districts statewide but was amended to focus solely on the 6th District.)
U.S. Rep. Roscoe Bartlett, the Republican who had represented the district since 1993, lost his re-election bid to John Delaney, a Democrat, in 2012, who then handily won re-election in 2014 and 2016.
Delaney chose not to run for re-election in 2018 in order to pursue the Democratic presidential nomination in 2020.
David Trone, a Democrat, was elected Nov. 6 to succeed Delaney.
The three-judge panel rendered its decision in O. John Benisek et al. v. Linda H. Lamone et al., No. 13-cv-3233.
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