On November 7th, after managing a protracted series of procedural issues involving a lawsuit that was initially filed in 2013, a federal district court panel invalidated Maryland’s 6th congressional district on grounds that it was an unconstitutional partisan gerrymander. Maryland has until early March 2019 to enact a new congressional map or the court will create its own commission to do so. This case is notable since the court overturned the map on 1st amendment grounds instead of the 14th amendment, which until recently had been the basis for most if not all partisan gerrymandering challenges. In the court’s own words:
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We . . . conclude that the plaintiffs have sufficiently demonstrated that Maryland’s 2011 redistricting law violates the First Amendment by burdening both the plaintiffs’ representational rights and associational rights based on their party affiliation and voting history.
The opinion goes on to list the factors that ultimately led it to grant the plaintiff’s motion for summary judgement:
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- The State (of Maryland) specifically targeted voters in the Sixth Congressional District who were registered as Republicans;
- The State specifically intended to diminish the value of those targeted citizens’ votes by removing a substantial number of them from the Sixth District and replacing them with Democratic voters for the purpose of denying, as a practical matter, the targeted voters the opportunity to elect the candidate of their choice; and
- The State also burdened the Republican voters’ right of association, as demonstrated by voter confusion, diminished participation in Republican organizational efforts in the Sixth District, and diminished Republican participation in voting, as well as decreased Republican fundraising.
Maryland has the option to appeal directly to the Supreme Court, but whether it will or not is anybody’s guess. The Maryland Governor Larry Hogan has been a staunch advocate of independent redistricting commissions and this may be an opportunity for Hogan to do just that. In 2015, Hogan executed an executive order that creates a bipartisan commission to examine Maryland’s redistricting process. The commission’s final report recommended reforming the process by giving the authority to redistrict to an independent, nonpartisan commission which would be selected by a process similar to California’s Commission.
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If the case does go on direct appeal to the Supreme Court, it will likely be heard in conjunction with a similar partisan gerrymandering case from North Carolina. However, with the retirement of Justice Kennedy – who first originated the idea of partisan gerrymandering as a First Amendment claim – and the recent addition of Justice Kavanaugh, a more conservative court is less likely to actively police partisan gerrymandering.
