The Supreme Court was asked on Wednesday to resolve an age-old problem — partisan gerrymandering — using a novel legal strategy offered by a group of Maryland citizens.
It’s not clear the justices bought it.
“It was a very vigorous argument, with both lawyers being questioned very closely,” said journalist Kenneth Jost, a veteran court-watcher and author of “Supreme Court Yearbook.” “It’s clear that the justices are conflicted.”
The case, Benisek vs. Lamone, was spawned by the congressional map the state legislature drew in 2011, a process that General Assembly Democrats and then-Gov. Martin O’Malley (D) made plain had the goal of boosting their chances of winning races during the ensuing decade, by moving Democratic voters from the safe 8th District into the 6th District, where the party struggled.
It worked. Democrat John K. Delaney knocked off 10-term incumbent Rep. Roscoe G. Bartlett (R) in 2012. Maryland’s House delegation, which had four members of each party as recently as 2002, now favors Democrats, 7-1.
The Benisek plaintiffs, a group of seven residents from Republican-leaning Western Maryland, argued in court Wednesday that their First Amendment rights were violated when they were placed in a district with the residents of wealthier and more Democratic western Montgomery County.
“It’s making it more difficult— deliberately making it more difficult — for particular citizens to achieve electoral success because their views are disapproved by those in power, in this case in Annapolis,” argued the plaintiffs’ attorney, Michael B. Kimberly, a Washington, D.C., lawyer.
Not so, countered Maryland Solicitor General Steven M. Sullivan.
“This new district looks much more traditional,” he said. “In fact, it has Montgomery County in it, which was the traditional layout of the 6th District until that was changed in 1990, which paved the way for Roscoe Bartlett to be able to get elected, unlike his previous try for the seat [in 1982] where he lost by 49 points.”
Almost all the justices who spoke (eight, with the traditional exception of Justice Clarence Thomas) peppered the two litigants with some version of the same question — whether the plaintiffs’ challenge has reached the court too late for relief this election cycle. The primaries are scheduled for June 26, early voting begins June 14, and overseas absentee and military ballots will be sent out even sooner.
Justice Ruth Bader Ginsburg cut into Kimberly’s remarks mere seconds after he started talking. “It’s much too late, even if you were successful, for there to be any change for the 2018 election… right?” she asked.
“You waited an awfully long time to bring this suit, from the change — in 2011, was it?” added Justice Sonya Sotomayor. “Should that factor into our consideration of whether to uphold or not uphold your request?”
“I still don’t understand what you want to have take place… in practical terms,” said Justice Samuel A. Alito Jr. “You want this case remanded to the district court and you think… there will be time to adopt a new map to be used in the 2018 election?”
Justice Anthony M. Kennedy, a frequent swing vote, phrased the concern this way: “People are planning campaigns and so forth. … Are you suggesting that it would not be disruptive of the current election… [if] the map should be changed at this late date?”
“I don’t deny that, Your Honor,” Kimberly offered. “But I don’t think this Court has to actually take a position on the time in question one way or another. What we’re asking this Court to do is evaluate the legal principles…”
Outside the court, Walter K. Olson, co-chairman of the Maryland Redistricting Commission, which was convened by Gov. Lawrence J. Hogan Jr. (R) to reform the redistricting process, conceded there are practical problems with the lawsuit’s timing.
“We are late in the calendar,” he said. “They have been printing up military ballots [for the June primary], all sorts of things that are kind of set in stone now. If the court actually uprooted that, you could have a lot of panic.”
From the questions, it was clear the justices had done their homework.
“Democrats have now prevailed in three straight elections, including in an election which was a wave Republican election,” said Justice Elena Kagan. “So the effects were exactly what the intent would suggest: A long-standing Republican incumbent is unseated by a Democratic newcomer, who withstands a wave election, who prevails three straight times. I mean, it appears that the Maryland legislature got exactly what it intended, which was you took a Republican district, a safe Republican district, and made it into not the safest of Democratic districts but a pretty safe one.”
“No, it’s not safe,” Sullivan contended. “It was judged competitive. And in that first election, 2012, the incumbent Republican had seven — count them, seven — opponents in the Republican primary. … Those seven candidates did not run for office, presumably, because they thought it was a waste of time. … They considered it to be competitive.”
Justice Neil M. Gorsuch noted that Maryland’s 2011 redistricting scheme was put before voters after critics challenged it.
“And [it] passed with 64 or so percent of the vote,” he said.
“Yes, and some of our plaintiffs were active in getting that referendum on the ballot,” Sullivan said. “The people have spoken and they’ve expressed themselves, and they did so overwhelmingly to support this plan, including in 10 out of 12 counties where the majority of voters are Republican.”
“So this is not, as many a redistricting case might be presented to you, a blow for democracy. This would be a blow against democracy.”
Benisek is one of two high-profile redistricting cases the Supreme Court is hearing this term. The other is Gill vs. Whitford, a challenge to the map Wisconsin legislators drew for the state Assembly in 2011. Politicians and campaign strategists are watching both cases carefully, as rulings could reverberate well beyond the states whose maps have been challenged.
The nation is gearing up for the 2020 census. The following year, congressional and state legislative maps using the data will be drawn in all 50 states.
Hogan and former California Gov. Gray Davis (D) filed friend of the court briefs on behalf of the plaintiffs in the Benisek case. Hogan has advocated for a non-partisan redistricting process.
While map-drawing controversies have existed since the beginning of the Republic, courts have been reluctant to intervene — both because of the inherently political nature of the disputes and because it’s difficult to come up with a metric to determine when line-drawing becomes overly political.
“I leave completely baffled as to how the court is going to decide this,” Jost, the longtime court-watcher, told Maryland Matters. “Usually you can sense that some majority is forming during the argument. I did not see the outline of a majority approach.”
“Gerrymandering is very much the topic of the day in political and legal circles,” he said. “But I think this case is not going to yield very useful answers. I think the real test of this court is going to be the Wisconsin case that was argued in October and has been sitting for more than six months now.”
Olson told reporters a growing number of states, particularly in the West, are taking map-drawing power out of the hands of politicians. “If you look west of the Rockies, most states have adopted serious redistricting reform over the last 10 or 20 years.”
The panel advocating for reform in Maryland is urging:
— A process that is independent of the General Assembly;
— That members of the redistricting commission not be appointed by incumbent office-holders;
— That map-makers be “blind” to precinct-level voting history and party registration; and
— That decision-makers not know or take into account where officer-holders or potential candidates reside.
“A very powerful principle, that last one,” Olson said.
But the General Assembly has bottled up Hogan’s and other Republican redistricting reform proposals for several years.
Because the Maryland case involves political activity in the court’s back yard, there were occasional moments of levity.
“Part of the issue here is you have people from, you know, Potomac joined with people from the far west panhandle,” Chief Justice John G. Roberts Jr., who lives in Chevy Chase, observed. “They both have farms, but the former [has] hobby farms. And the others are real farms.”
To see a comparison of the old 6th District map with the current one, courtesy of Capital News Service, click here.