Maryland Redistricting In The Supreme Court

A Maryland redistricting case that avoided significant notice when it was filed in 2013 - we lawyers never pay attention to cases filed by non-lawyers - is set for oral argument before the U.S. Supreme Court this fall, opening up the prospect of a new line of challenges to political gerrymandering efforts not only here in Maryland but across the country. Contrary to the arguments made by Maryland legislative leaders in defending their indefensible 2011 redistricting plan, this case, if successful, will advance both the principle of fairer districts and the political interests of the Democratic Party nationally. A win win situation.

John Fritze of the Sun reports:

A little-noticed lawsuit brought by a Maryland man challenging the state’s contorted congressional districts will be heard this fall by the Supreme Court — where it has the potential to open a new line of constitutional attack for opponents of gerrymandering.

Stephen M. Shapiro, a former federal worker from Bethesda, argues that the political map drawn by state Democrats after the 2010 census violated the First Amendment rights of Republicans by placing them in districts in which they were in the minority, marginalizing them based solely on their political views.

The issue before the Supreme Court is whether a lower court judge had the authority to dismiss the suit before it was heard by a three-judge panel. But Shapiro hopes the justices will also take an interest in his underlying claim.

A little background. In 2004, the Supreme Court held that challenges to Pennsylvania’s redistricting - in which Republicans ended up holding 14 out of 19 congressional seats despite Democrats being a plurality of state voters - could not be challenged as being too partisan. Four justices held that the issue was “nonjusticiable,” that courts should not even intervene in political gerrymandering, because no neutral rule could be decided to apply to such cases using the usual measuring stick of equal protection. One Justice - yes, you guessed it, that attention hog, Anthony Kennedy, AGAIN - wrote that while he agreed that the PA case should be dismissed, he believed that future cases might result in the development of neutral rules could be developed under the First Amendment rather than the 14th Amendment’s Equal Protection clause. Kennedy wrote in 2004:

Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.

This is precisely the argument being made in the Maryland case. The fact that the case was accepted for review by the Supreme Court - which requires four votes to grant review - suggests that either Kennedy agreed to accept the case or that the four liberal justices - Breyer, Ginsburg, Kagan and Sotomayor - believe they can convince Kennedy that the time has come to revisit the First Amendment issue in the context of political gerrymandering. The consequences of this case - both for Maryland and for the country - could be enormous, and in a hugely positive and principled way.

UPDATE: Here’s the brief submitted to the Supreme Court last month by the Petitioners. The brief of the Maryland elections officials in response has not been filed, and oral argument has yet to be scheduled. I intend to be present when the case is argued.

One thought on “Maryland Redistricting In The Supreme Court

Leave a Reply

Please log in using one of these methods to post your comment: Logo

You are commenting using your account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s