United States District Court, D. Maryland
O. JOHN BENISEK, et al., Plaintiffs,
LINDA H. LAMONE, et al., Defendants. COMMON CAUSE; THE BRENNAN CENTER FOR JUSTICE AT N.Y. U.SCHOOL OF LAW; THE CAMPAIGN LEGAL CENTER, INC., Amici Supporting 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
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.
Niemeyer, Circuit Judge, and Bredar and Russell, District
MEMORANDUM AND ORDER
V. Niemeyer United States Circuit Judge
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
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).
full court, having now received the parties' memoranda
and their oral arguments at a hearing on March 6, 2017,
affirms Judge Bredar's orders.
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.
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.
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.
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.
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
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.
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 ...