By Lisa Soronen
The challengers to the redistricting of Maryland’s 6th Congressional District just might win—if the U.S. Supreme Court actually decides their case.
In Benisek v. Lamone, the Maryland legislature in 2011 needed to move about 10,000 voters out of the 6th Congressional District to comply with “one-person one-vote.”
It moved about 360,000 Marylanders out of the district and about 350,000 Marylanders into the district. As a result only 34 percent of voters were registered Republican versus 47 percent before redistricting.
Following the redistricting, Democrat John Delaney defeated the incumbent Republican by almost 21 percent. But in 2014 Delaney almost lost his seat even though his challenger didn’t live in the district and raised less money. That same year, Republican gubernatorial candidate Larry Hogan won the Sixth District, beating his rival by 14 percent.
A number of 6th District Republicans sued, alleging the state legislature “targeted them for vote dilution because of their past support for Republican candidates for public office, violating the First Amendment retaliation doctrine.”
In 2016, a three-judge court articulated a standard for when partisan gerrymandering violates the First Amendment. But two of the judges weren’t convinced that the challengers were able to demonstrate that, but for the partisan gerrymander, Republicans would have won and continued winning in the 6th District.
The Supreme Court may decide whether to accept or reject this standard. The Court has never adopted a standard or legal theory for when partisan gerrymandering is unconstitutional.
At oral argument, nearly all the justices asked questions suggesting they didn’t think they should even decide the case because there isn’t enough time for new maps to be drawn in Maryland for the 2018 election.
In asking questions about the merits of the case, predictably the more liberal justices seemed more inclined to want to rule the redistricting in this case was the result of unconstitutional First Amendment retaliation.
Justice Anthony Kennedy asked questions of the attorneys arguing for both sides but seemed quite skeptical of the redistricting in this case. He asked the attorney defending the plan whether it would be OK for the state legislature to pass a law saying it would favor one party in redistricting. Building on that hypothetical, Justice Elena Kagan suggested that is pretty much what happened in this case.
Interestingly, Chief Justice John Roberts, while helping out the plan challenger’s attorney at times, asked the attorney numerous questions including whether it really makes sense to include in the same district hobby farmers in Potomac, Md., with real farmers in western Maryland.
Justice Stephen Breyer suggested a novel idea. Earlier in the term the Supreme Court heard oral argument in Gill v. Whitford, which also raises the question about whether and when partisan gerrymandering claims are justifiable. The court may also agree to review a case from North Carolina where a three-judge court ruled unconstitutional partisan gerrymandering occurred.
Breyer suggested hearing all these cases together so the court may consider all the pros and cons of the various legal theories and tests the court has been encouraged to apply for determining when partisan gerrymandering rises to the level of being unconstitutional.
Unless the rest of the court goes along with Breyer, the court will issue an opinion in this case by the end of June.
Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial issues.