ANNAPOLIS, MD — The redistricting of Maryland's Sixth Congressional district certainly seemed to help Democrats, but that's not a matter for courts to decide. That's the 5-4 decision by the U.S. Supreme Court in Maryland's controversial gerrymandering case. Oral arguments were heard by the nation's highest court in March 2018, but the court's opinion wasn't released until Thursday, June 27, right before its summer recess.
Five conservative justices said that federal courts have no role to play in the dispute over political line-drawing for partisan gain when state lawmakers draw districts following the 2020 census.
Voters and elected officials should be the arbiters of what is a political dispute, Chief Justice John Roberts said in his opinion for the court, according to the Associated Press.
The decision was a major blow to critics of the partisan manipulation of electoral maps that can result when one party controls redistricting. The districting plans "are highly partisan by any measure," Roberts said.
But he said courts are the wrong place to settle these disputes.
Gov. Larry Hogan in a statement called the court's ruling on Benisek v. Lamone "terribly disappointing to all who believe in fair elections." He pledged to continue fighting the issue in Maryland and nationally, saying both parties are guilty of gerrymandering.
"It stifles real political debate, contributes to our bitter partisan polarization, and deprives citizens of meaningful choices. The voters should pick their representatives, not the other way around. I will do everything in my power to restore free and fair elections for the people," Hogan said.
Redistricting reform legislation will be introduced in Maryland next year, the governor said, that would require a balanced and nonpartisan commission draw up districts.
The League of Women Voters of Maryland said it will fight to ensure Maryland enacts a redistricting process that will lead to fair maps in the 2021 redistricting cycle. "As a resident of Maryland's 6th district, it is a disappointment that the court has opted not to re-enfranchise voters here, but as a leader in the state I will work tirelessly to ensure our state legislators put an end to this undemocratic practice in 2020," co-president of the state League, Richard Willson said in a press release.
The Maryland League signed on in amicus with the Benisek case before the court and the League's state director, Ashley Oleson, served on the governor's commission to redraw district 6 pursuant to the U.S. District Court's order. "I hope that legislators in the state will now see that it is up to them to right this wrong," Oleson said. "The public is depending on them to fortify our democratic system against current and future actors who seek to chip away at it."
Benisek v. Lamone, the Maryland gerrymandering case, focused on whether redrawing district lines in favor of one party is a violation of the First Amendment. Michael B. Kimberly, representing O. John Benisek, a resident of Washington County, argued the partisan gerrymandering that occurred in Maryland's 6th District under then-Gov. Martin O'Malley, a Democrat, in 2011 was a violation of the First Amendment due to the additional challenges created by shifting districts for voters.
"The evidence is unequivocal," Kimberly told the justices. "It's deliberately making it more difficult for particular citizens to achieve electoral success because their views are disapproved by those in power."
In 2011, O'Malley created the Governor's Redistricting Advisory Committee to redraw the congressional and state legislative districts in Maryland. A new map was created, passed both the Maryland House and Senate, and was signed by O'Malley. Before the redistricting, Maryland Democrats controlled six of the state's eight U.S. House districts. After the election following the new map, the Democrats controlled seven seats.
Republicans argued Maryland's partisan redistricting caused irreparable damage to voters in the new district. Kimberly said that "Governor O'Malley and others involved in the redistricting have candidly acknowledged their intent to dilute Republican votes in the 6th District to prevent Republican voters there from reelecting Congressman Roscoe Bartlett," reported Capital News Service when it covered the oral arguments in March 2018.
Some justices questioned whether voters had truly been harmed by the redistricting. Chief Justice John Roberts called the length of time between the redistricting and the oral arguments into question.
Many justices during last year's arguments questioned the intent of the redistricting, suggesting O'Malley's reason for redistricting was unconstitutional.
"The effects were exactly what the intent would suggest," Justice Elena Kagan said in 2018. "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 safe Republican district, and made it into not the safest of Democratic districts, but a pretty safe one. … I mean, how much more evidence of partisan intent could we need?"
Steven Marshall Sullivan, representing Linda H. Lamone, Maryland's elections administrator, disagreed. Sullivan said that 20 percent of voters in the 6th District are registered as independents. The result is that neither the Republicans nor the Democrats make up a majority there. "The independent vote is critical because, in the first election, the Democrat won more of the independent vote than the Republican," Sullivan said. "The redistricting lines couldn't have caused that to happen. That happened because of the views of those voters and the strength of that candidate."
"It seems like a pretty clear violation of the Constitution in some form to have deliberate, extreme gerrymandering," Justice Stephen Breyer said of the Maryland map last year. "But is there a practical remedy that won't get judges involved in dozens and dozens and dozens of very important political decisions?"
Courts have previously treated challenges to political redistricting as a "nonjusticiable 'political question,' based on the lack of a determinate, judicially enforceable standard to judge political gerrymanders," according to the Preview of the United States Supreme Court Cases.