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Benisek v. Lamone

United States District Court, D. Maryland

March 13, 2017

O. JOHN BENISEK, et al., Plaintiffs,

          Argued: March 6, 2017

          Michael B. Kimberly, Paul W. Hughes, Stephen M. Medlock, E. Brantly Webb, and Micah D. Stein, MAYER BROWN LLP, Washington, D.C., for plaintiffs.

          Jennifer L. Katz, Sarah W. Rice, and Kathryn M. Rowe, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for defendants.

          Benjamin W. Thorpe, Emmet J. Bondurant, BONDURANT MIXSON AND ELMORE LLP, Atlanta, Georgia, Gregory L. Diskant, PATTERSON BELKNAP WEBB AND TYLER LLP, New York, New York, and Michael A. Pretl, Riverton, Maryland, for Amicus Common Cause. Charles E. Davidow, Washington, D.C., Pietro Signoracci, Robert A. Atkins, New York, New York, PAUL WEISS RIFKIND WHARTON AND GARRISON LLP, and Michael Li, Thomas P. Wolf, New York, New York, for Amicus The Brennan Center for Justice at N.Y. U.School of Law. Paul March Smith, JENNER AND BLOCK LLP, Washington, D.C., for Amicus The Campaign Legal Center, Inc.

          Before Niemeyer, Circuit Judge, and Bredar and Russell, District Judges.


          Paul V. Niemeyer United States Circuit Judge

         The plaintiffs in this action challenge the constitutionality of Maryland's redistricting law enacted on October 20, 2011, alleging that the law violated their rights under the First Amendment and Article I, Sections 2 and 4, of the U.S. Constitution. Pursuant to 28 U.S.C. § 2284(a), this three-judge court was convened to hear and determine the action.

         Acting under § 2284(b)(3), Judge Bredar, a member of the three-judge court, issued two discovery orders dated January 31, 2017, and February 3, 2017, in which he rejected claims of legislative privilege asserted by witnesses whom the plaintiffs sought to depose and from whom the plaintiffs sought documents. The witnesses, represented by the Office of the Attorney General of Maryland, filed a motion for review of Judge Bredar's orders by the full court, as authorized by § 2284(b)(3).

         The full court, having now received the parties' memoranda and their oral arguments at a hearing on March 6, 2017, affirms Judge Bredar's orders.



         Based on the results of the 2010 census, the State of Maryland was required to redraw the lines of its eight congressional districts to ensure that each district had an equal share of the State's population. Governor Martin O'Malley, a Democrat, established the Governor's Redistricting Advisory Committee by executive order in July 2011, charging the Committee with “holding public hearings around the State and drafting [a] redistricting plan[] for [his] consideration [that would] set the boundaries of the State's . . . 8 congressional districts following the 2010 Census.” Joint Stipulation ¶ 18. The Governor selected Jeanne D. Hitchcock - a Democrat who was the Appointments Secretary in the Governor's Office and who had been the Deputy Mayor of Baltimore when O'Malley had been the Mayor - to chair the Committee. And he appointed four other individuals to be members of the Committee: (1) State Senate President Thomas V. Mike Miller, Jr., a Democrat; (2) House of Delegates Speaker Michael E. Busch, a Democrat; (3) Richard Stewart, a businessman who had chaired the Governor's reelection campaign in Prince George's County, a Democrat; and (4) James J. King, a businessman from Anne Arundel County who had previously served in the House of Delegates, a Republican.

         The Advisory Committee held 12 public hearings across the State in the summer of 2011, receiving approximately 350 comments from members of the public. The Committee also solicited submissions of plans by third parties for its consideration. Although the Committee held public hearings and solicited public comments, it was “exempt by law from the Maryland Open Meetings Act.” Joint Stipulation ¶ 27. The Committee prepared a draft redistricting plan using a computer software program called Maptitude for Redistricting Version 6.0, and, when doing so, it had access to the State Board of Elections' statistical data, including “address-level voter registration data” and “address-level voter-history data.” Id. ¶ 29. Using the Maptitude software program to analyze this data, the Committee would have had the ability “to determine how the outcome of historical elections would have changed . . . if the proposed plan had been in place in prior years.” Id. ¶ 30.

         The Advisory Committee completed its proposed map on October 4, 2011, with King, the Committee's lone Republican, casting the sole dissenting vote. After posting the map online and receiving additional comments from the public, the Governor announced on October 15 that he would submit to the legislature a map that was substantially the same as the Advisory Committee's proposal. See Joint Stipulation ¶ 33. Two days later, on October 17, Senate President Miller introduced the Governor's proposed redistricting map as Senate Bill 1 at a special legislative session. That same day, the Senate Committee on Reapportionment and Redistricting, along with the House Rules Committee, held a joint hearing on Senate Bill 1 and voted to approve the bill. After adopting minor technical amendments, the Senate passed the bill the next day, October 18, sending it to the House of Delegates, which, after making additional technical amendments, passed it on October 19. The Senate concurred in the House's technical amendments, and the Governor signed Senate Bill 1 into law on October 20, 2011, three days after it had been introduced. See Md. Code Ann., Elec. Law §§ 8-701 to -709.

         The enacted Plan created eight congressional districts that were equal in population according to the adjusted 2010 census data. The changes effected by the Plan, however, were far more extensive than those needed to achieve population equality, and the reshuffling was particularly extensive with respect to Maryland's Sixth Congressional District. Historically, the Sixth District had consistently included all of the State's five most northwestern counties - Garrett, Allegany, Washington, Frederick, and Carroll Counties - as well as various portions of Baltimore, Howard, Montgomery, and Harford Counties, and it had been represented in Congress by Representative Roscoe Bartlett, a Republican, since 1992. At the time of the 2010 congressional election - the last held prior to the 2011 redistricting - 46.68% of the Sixth District's eligible voters were registered as Republicans, while 35.84% were registered as Democrats, and Representative Bartlett won reelection that year by a margin of 28.2%. Joint Stipulations ¶¶ 8, 10.

         Under the 2011 Plan, the new Sixth District retained Garrett, Allegany, and Washington Counties, as well as roughly half of Frederick County's population. The Plan moved to other districts the remainder of Frederick County, all of Carroll County, and the portions of Baltimore and Harford Counties that had previously been part of the Sixth District, and in their place it added approximately 350, 000 residents from Montgomery County. Thus, under the 2011 Plan, roughly half of the Sixth District's residents live in Montgomery County, which has well over twice as many registered Democrats as registered Republicans.

         “One widely understood consequence of the Plan was that it would make it more likely that a Democrat rather than a Republican would be elected as representative from the [Sixth] District.” Joint Stipulation ¶ 31. This understanding turned out to be accurate. At the time of the 2012 congressional election - the first held under the 2011 Plan - 33.32% of the Sixth District's eligible voters were registered as Republicans, and 44.11% were registered as Democrats. Id. ¶ 53. In that election, Democratic candidate John Delaney, a newcomer to politics, defeated Bartlett by a 20.9% margin. Id. ¶ 54. Representative Delaney won reelection in 2014 and again in 2016, albeit by smaller margins.


         The seven plaintiffs in this action, registered Republicans who lived in the Sixth District prior to the 2011 Plan's enactment, challenge the constitutionality of the Plan under the First Amendment and Article I, Sections 2 and 4, of the U.S. Constitution. Their second amended complaint, which names as defendants the Chair and the Administrator of the State Board of Elections (the “State”), alleged that those responsible for the 2011 Plan “purposefully and successfully flipped [the Sixth District] from Republican to Democratic control by strategically moving the [D]istrict's lines by reason of citizens' voting records and known party affiliations.” Second Am. Compl. ¶ 1. They alleged that “[t]he drafters of the Plan focused predominantly on the voting histories and political-party affiliations of the citizens of the State in deciding how to” redraw the Sixth District's lines and that they “did so with the clear purpose . . . of diluting the votes of Republican voters and preventing them from electing their preferred representatives in Congress.” Id. ¶ 6. They alleged further that the Plan achieved its intended effect, imposing a significant burden on the former Sixth District's Republican voters by preventing them “from continuing to elect a Republican representative . . ., as they had in the prior ten congressional elections.” Id. ¶ 7(b). And they maintained that “the State ...

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