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Benisek v. Lamone

United States District Court, D. Maryland

August 24, 2017

O. JOHN BENISEK, et al., Plaintiffs
LINDA H. LAMONE, et al., Defendants

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


          Bredar, District Judge.

         On May 31, 2017, Plaintiffs O. John Benisek, et al. (“Plaintiffs”) filed a Rule 65(a) Motion for a Preliminary Injunction and to Advance and Consolidate the Trial on the Merits or, in the Alternative, for Summary Judgment. (ECF No. 177.) The State responded on June 30, 2017, with a Cross-Motion for Summary Judgment. (ECF No. 186.) Both motions have been briefed. On June 28, 2017, this three-judge Court set in a hearing on Plaintiffs' preliminary injunction motion. On its own motion, the Court directed the parties to also address whether further proceedings in this case should be stayed pending the Supreme Court's decision in Gill v. Whitford, No. 16-1161, a political gerrymandering case set to be argued in the forthcoming Term. A hearing on both matters was held on July 14, 2017.[1]

         For the reasons explained below, the Court now DENIES Plaintiffs' preliminary injunction motion and STAYS this case pending the outcome of Whitford, As set forth in Part II.B, Judge Bredar concludes that such action is necessary because the justiciability of political gerrymandering claims remains in doubt, but the Supreme Court will likely resolve or clarify this threshold jurisdictional matter in its Whitford, decision. As set forth in Part II.C, Judges Bredar and Russell conclude that Plaintiffs have not made an adequate preliminary showing that they will likely prevail on the causation element of their First Amendment retaliation claim. While the Court by no means excludes the possibility that Plaintiffs may ultimately prevail, Plaintiffs have not demonstrated that they are entitled to the extraordinary (and, in this case, extraordinarily consequential) remedy of preliminary injunctive relief. A stay pending further guidance in Whitford is appropriate at this juncture.

         As set forth in his dissenting opinion, Judge Niemeyer would grant Plaintiffs' motion for preliminary injunctive relief.

         I. Procedural History

         A review of the recent history of this redistricting case may prove helpful. Following a remand from the Supreme Court on a procedural issue, see Shapiro v. McManus (Shapiro I), 136 S.Ct. 450 (2015), the case was assigned to a three-judge panel composed of Circuit Judge Niemeyer and District Judges Bredar and Russell. (ECF No. 42.) On March 3, 2016, Plaintiffs filed a Second Amended Complaint challenging Maryland's 2011 congressional districting map as an unconstitutional political gerrymander. (ECF No. 44.) The State moved to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 51.)

         On August 24, 2016, the Court denied the State's motion to dismiss in a 2-1 decision, with Judge Bredar dissenting. See Shapiro v. McManus (Shapiro II), 203 F.Supp.3d 579 (D. Md. 2016). In its ruling, the panel majority held that Plaintiffs' Second Amended Complaint stated a justiciable claim for relief. The majority went on to endorse a standard for assessing political gerrymandering claims under the First Amendment:

When applying First Amendment jurisprudence to redistricting, we conclude that, to state a claim, the plaintiff must allege that those responsible for the map redrew the lines of his district with the specific intent to impose a burden on him and similarly situated citizens because of how they voted or the political party with which they were affiliated. In the context of redistricting, this burden is the injury that usually takes the form of vote dilution. . . . [T]o establish the injury element of a retaliation claim, the plaintiff must show that the challenged map diluted the votes of the targeted citizens to such a degree that it resulted in a tangible and concrete adverse effect. . . . Finally, the plaintiff must allege causation-that, absent the mapmakers' intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.
When a plaintiff adequately alleges the three elements of intent, injury, and causation . . . he states a plausible claim that a redistricting map violates the First Amendment and Article I, § 2. Of course . . . the State can still avoid liability by showing that its redistricting legislation was narrowly tailored to achieve a compelling government interest.

Id. at 596-97.[2]

         Following the Court's decision at the pleading stage, the parties entered a contentious period of discovery, which resulted in voluminous procedural rulings that need not be reviewed here. At the conclusion of this discovery period, the parties filed their pending motions. (ECF Nos. 177, 186.)

         As explained more fully in Part II, the Court concludes that preliminary injunctive relief is inappropriate at this stage because Plaintiffs have not shown that they can likely prevail on each of the three elements of their First Amendment claim. Moreover, any further proceedings- whether in relation to the pending cross-motions for summary judgment or at a bench trial-would be premature because the Supreme Court is poised to consider issues that go to the heart of Plaintiffs' gerrymandering case. Until the Supreme Court speaks, prudence compels this Court to stay further proceedings.

         II. Analysis

         A. Standard of Decision

         1. Preliminary Injunction

         Plaintiffs seek preliminary injunctive relief in the form of an order barring the State from enforcing the 2011 redistricting plan and requiring the State to implement a new map in advance of the 2018 midterm elections. To prevail on their motion for such relief, Plaintiffs must show (1) that they are likely to succeed on the merits of their political gerrymandering claim, (2) that they will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in their favor, and (4) that an injunction would serve the public interest. WV Ass'n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (citing Winter v. NRDC, 555 U.S. 7, 20 (2008)). “A preliminary injunction is an ‘extraordinary remed[y] involving the exercise of very far-reaching power' and is ‘to be granted only sparingly and in limited circumstances.'” Int'l Refugee Assistance Project v. Trump, 857 F.3d 554, 588 (4th Cir. 2017) (alteration in original) (quoting MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001)), cert. granted, 137 S.Ct. 2080 (2017).

         Rule 52(a)(2) of the Federal Rules of Civil Procedure provides that in “granting or refusing an interlocutory injunction, the court must . . . state the findings and conclusions that support its action.” See Greenhill v. Clarke, 672 F. App'x 259, 260 (4th Cir. 2016) (per curiam) (“Rule 52(a)(2) . . . requires that the district court make particularized findings of fact supporting its decision to grant or deny a preliminary injunction; such findings are necessary in order for an appellate court to conduct meaningful appellate review.”); accord Booker v. Timmons, 644 F. App'x 219 (4th Cir. 2016) (mem.). Because Judge Bredar's discussion in Part II.B, concerning justiciability, involves a pure question of law, no findings are enumerated in that Part. However, the opinion of the Court in Part II.C, concerning the causation element of Plaintiffs' First Amendment theory, includes findings germane to that issue as well as separately stated conclusions of law. Such findings and conclusions are, given the procedural posture of this case, preliminary, and they will not bind the Court in any future proceedings. See Blake v. Balt. Cty., 662 F.Supp.2d 417, 421 (D. Md. 2009) (citing Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).

         2. Stay of Proceedings

         The Supreme Court has long recognized that the “power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936); see also Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983) (recognizing that courts enjoy the inherent authority to grant a stay “under their general equity powers and in the efficient management of their dockets”). The decision to stay an action “calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” Landis, 299 U.S. at 254-55; see also Rogler v. Fotos, Civ. No. WDQ-14-228, 2015 WL 7253688, at *13 (D. Md. Nov. 17, 2015), aff'd, 668 F. App'x 462 (4th Cir. 2016) (mem.); Cutonilli v. Maryland, Civ. No. JKB-15-629, 2015 WL 5719572, at *4 (D. Md. Sept. 28, 2015), appeal dismissed, 633 F. App'x 839 (4th Cir. 2016) (mem.).

         In deciding whether to stay proceedings, a court should consider the likely impact of a stay on each party as well as the “judicial resources that would be saved by avoiding duplicative litigation if the case is in fact stayed.” Mitchell v. Lonza Walkersville, Inc., Civ. No. RDB-12-3787, 2013 WL 3776951, at *2 (D. Md. July 17, 2013) (citing Yearwood v. Johnson & Johnson, Inc., Civ. No. RDB-12-1374, 2012 WL 2520865, at *3 (D. Md. June 27, 2012)).

         B. Justiciability

         At the pleading stage in Shapiro II, the panel majority recognized “the justiciability of a claim challenging redistricting under the First Amendment and Article I, § 2, when it alleges intent, injury, and causation.” 203 F.Supp.3d at 598. Judge Bredar disagreed, writing that because (1) Plaintiffs had “not shown that their framework would reliably identify those circumstances in which voters' representational rights have been impermissibly burdened” and (2) no “acceptable alternative framework” had been identified, Plaintiffs' claim must be treated as nonjusticiable. Id. at 601-02 (Bredar, J., dissenting). Despite the disagreement among the members of the panel on this threshold issue, the majority opinion remains the law of the case absent reconsideration by at least two judges or intervention by the Supreme Court. This Memorandum does nothing to unsettle that prior decision.

         However, this case has long since passed the pleading stage. Plaintiffs now seek preliminary injunctive relief in the form of an order that, if entered, would cause an unprecedented disruption in Maryland's legislative and districting process. In granting such relief, the Court would enjoin enforcement of a map that was duly enacted by the General Assembly of Maryland, see Md. Code Ann., Elec. Law §§ 8-701 et seq., and that survived a voter referendum by a wide margin. The remedy would require emergency action by the legislature. The time and resources necessary to implement a new map would surely have the effect of scuttling other legislative priorities in advance of the 2018 session. The remedy would be highly consequential.

         In the arena of legislative and congressional districting, unelected federal judges should exercise great caution before declaring unconstitutional the work product of the people's elected representatives. Cf. Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O'Connor, J., concurring in the judgment) (“The opportunity to control the drawing of electoral boundaries through the legislative process of apportionment is a critical and traditional part of politics in the United States, and one that plays no small role in fostering active participation in the political parties at every level. Thus, the legislative business of apportionment is fundamentally a political affair, and challenges to the manner in which an apportionment has been carried out . . . present a political question in the truest sense of the term.”).

         The preliminary injunction mechanism under Rule 65(a) of the Federal Rules of Civil Procedure does not authorize a federal court to grant such an extraordinary remedy haphazardly. Rather, the court must be confident, among other things, that the plaintiff has shown it is likely to prevail on the merits of its claim. Winter, 555 U.S. at 20. That assessment is quite different from the plaintiff-friendly evaluation of the pleadings under Rule 12(b)(6) and the Supreme Court's decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). A court that has made a preliminary legal determination in the plaintiff's favor must decide at the Rule 65(a) stage whether the plaintiff has carried its burden to show it will likely succeed on the merits. Intervening developments in the law and, in particular, signals from appellate courts, must inform this analysis.

         In this case, an intervening development casts a cloud over the panel majority's prior ruling as to the justiciability of Plaintiffs' political gerrymandering claim. On June 19, 2017, the Supreme Court agreed to hear argument in Gill v. Whitford, No. 16-1161, a direct appeal from a decision by a three-judge panel that enjoined a Wisconsin legislative map as an unconstitutional political gerrymander. Argument is calendared for October 3, 2017. The decision below in Whitford v. Gill, 218 F.Supp.3d 837 (W.D. Wis. 2016), is fairly remarkable in that it is the first district court opinion since the Supreme Court's splintered ruling in Vieth v. Jubelirer, 541 U.S. 267 (2004), to (1) endorse a standard for adjudicating political gerrymandering claims, (2) apply that standard to rule in the plaintiff's favor, and then (3) order the state to draw a new map.[3]

         In a 5-4 order, the Supreme Court stayed the district court's judgment pending disposition of the appeal. The Court declined to note probable jurisdiction, ordering instead that “[f]urther consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.” Plaintiffs in this case brush aside the justiciability question in Whitford as the “last of the five questions presented” in that appeal (ECF No. 193 at 2), and the dissent makes no mention of Whitford, Yet the Supreme Court's decision to hold over the jurisdictional question for argument is a strong signal that the question remains unsettled in the minds of the Justices.

         That should come as no surprise. The justiciability of political gerrymandering claims has plagued the Court for decades. As the panel majority observed in Shapiro II, six Justices acknowledged in Bandemer that such claims are theoretically justiciable, 478 U.S. at 125, but the Court fractured on the standard for adjudicating these claims. Conversely, Chief Justice Burger and Justices O'Connor and Rehnquist would have held that political gerrymandering claims “raise a nonjusticiable political question that the judiciary should leave to the legislative branch as the Framers of the Constitution unquestionably intended.” Id. at 144 (O'Connor, J., concurring in the judgment).

         Eighteen years later, the Court revisited the question in Vieth, where four Justices (Chief Justice Rehnquist and Justices Scalia, O'Connor, and Thomas) would have held “that political gerrymandering claims are nonjusticiable and that Bandemer was wrongly decided.” 541 U.S. at 281. Justice Kennedy, the swing vote, declined to sign on to the plurality opinion that would have overruled Bandemer, but he sounded sharp notes of caution, writing that there are “weighty arguments for holding cases like these to be nonjusticiable; and those arguments may prevail in the long run.” Id. at 309 (Kennedy, J., concurring in the judgment); see also Id. at 317 (“The failings of the many proposed standards for measuring the burden a gerrymander imposes on representational rights make our intervention improper.”).

         While the dissent in the instant case states that “five Justices in Vieth concluded that the [political gerrymandering] issue remained justiciable, ” post, at 44-45, Justice Kennedy's opinion was more guarded than that: it was so guarded, in fact, that the plurality characterized it as a “reluctant fifth vote against justiciability at district and statewide levels-a vote that may change in some future case but that holds, for the time being, that this matter is nonjusticiable.” Id. at 305 (plurality opinion) (emphasis added); see also Michael S. Kang, When Courts Won't Make Law: Partisan Gerrymandering and a Structural Approach to the Law of Democracy, 68 Ohio St. L.J. 1097, 1111 (2007) (“Justice Kennedy's ambivalence leaves it bizarrely unclear where the law of partisan gerrymandering stands. The plurality in Vieth, as a result, argued that Justice Kennedy's vote ought to be understood effectively, if not expressly, as ‘a reluctant fifth vote against justiciability.'” (footnotes omitted)). Hardly a resounding triumph for those who would ask federal courts to adjudicate political gerrymandering disputes, Vieth was the last case in which the Court squarely confronted the question.[4]

         The Supreme Court's willingness to consider and reconsider the justiciability question is understandable, given how fundamental that question is to the exercise (and even the legitimacy) of federal judicial power. justiciability is a threshold matter that courts are required to evaluate, sua sponte if necessary, before reaching the merits of a case. “Justiciability concerns ‘the power of the federal courts to entertain disputes, and . . . the wisdom of their doing so.'” Republican Party of N.C. v. Martin, 980 F.2d 943, 950 (4th Cir. 1992) (alteration in original) (quoting Renne v. Geary, 501 U.S. 312, 316 (1991)); see also Hamilton v. Pallozzi, 848 F.3d 614, 619 (4th Cir. 2017) (“Justiciability is an issue of subject-matter jurisdiction, and we have an independent obligation to evaluate our ability to hear a case before reaching the merits of an appeal.”); Proctor v. Prince George's Hosp. Ctr., 32 F.Supp.2d 820, 824 (D. Md. 1998) (“It is appropriate for a district court to raise issues of justiciability sua sponte.”).

         Merely because the Supreme Court has agreed to hear argument in Whitford and has deferred the jurisdictional question, it does not necessarily follow that the Court will clear up the ambiguity next Term. The composition of the Court has changed dramatically since Vieth, as that case was decided before Chief Justice Roberts and Justices Alito, Sotomayor, Kagan, and Gorsuch took their seats. Nonetheless, it is conceivable that the Justices could again divide as the Court did in Vieth, with a majority declining to agree on a standard but with at least five votes for the proposition that some standard might yet exist. Or perhaps the Justices will endorse the standard recognized by the three-judge court in Whitford, or some other standard; or perhaps they will rule finally that federal courts may not adjudicate these types of political questions. It would be idle to speculate as to the outcome of a case that has yet to be heard.

         But with due respect to the other members of this panel, it would be irresponsible to grant a drastic remedy on the basis of a claim that the Supreme Court may invalidate in a matter of months. We know now that the Court is poised to consider the justiciability question. Guidance of some sort (maybe dispositive guidance) is forthcoming. Accordingly, to suggest that Plaintiffs are likely to prevail on the merits of their claim and to award injunctive relief on that basis would place the cart far ahead of the horse.

         This is particularly so in light of a case to which neither party has devoted much attention and which, once again, the dissent does not mention. That case is Cooper v. Harris, 137 S.Ct. 1455 (2017), a racial gerrymandering case decided late last Term. In a separate opinion, Justice Alito-joined by Chief Justice Roberts and, strikingly, Justice Kennedy-took a dim view on the justiciability of political gerrymandering:

We have repeatedly acknowledged the problem of distinguishing between racial and political motivations in the redistricting context. . . . As we have acknowledged, “[p]olitics and political considerations are inseparable from districting and apportionment, ” and it is well known that state legislative majorities very often attempt to gain an electoral advantage through that process. Partisan gerrymandering dates back to the founding, and while some might find it distasteful, “[o]ur prior decisions have made clear that a jurisdiction may engage in constitutional political gerrymandering . . . .”

Id. at 1488 (Alito, J., concurring in the judgment in part and dissenting in part) (citations omitted). Justice Alito stressed that the Court's cases require “extraordinary caution” any time the state has “articulated a legitimate political explanation for its districting decision.” Id. at 1504 (internal quotation marks and citation omitted). He added that “if a court mistakes a political gerrymander for a racial gerrymander, it illegitimately invades a traditional domain of state authority, usurping the role of a State's elected representatives.” Id. at 1490 (emphasis added).

         Justice Alito's remarks are non-majority dicta in a case involving a different (though analogous) claim. These remarks should not be treated as proof that any member of the Supreme Court has prejudged the issues on appeal in Whitford, But see Crowe v. Bolduc, 365 F.3d 86, 92 (1st Cir. 2004) (“[C]arefully considered statements of the Supreme Court, even if technically dictum, must be accorded great weight and should be treated as authoritative.” (citation omitted)); Jordon v. Gilligan, 500 F.2d 701, 707 (6th Cir. 1974) (“Even the Court's dicta is of persuasive precedential value.”); Fouts v. Md. Cas. Co., 30 F.2d 357, 359 (4th Cir. 1929) (“[C]ertainly dicta of the United States Supreme Court should be very persuasive.”). However, these remarks are further evidence that the justiciability question is far from settled and will likely be a focal point at the October 2017 argument.

         Nothing about this discussion should be taken to suggest that Judge Bredar has decided, as a matter of law, that political gerrymandering claims are nonjusticiable. Indeed, two members of this panel have already decided that such claims are justiciable pursuant to the First Amendment framework that Justice Kennedy contemplated in Vieth, and the Supreme Court has not-to date- overruled Bandemer or held that partisan gerrymandering presents a nonjusticiable political question. Nor has the Court rejected Justice Kennedy's First Amendment theory, though that theory remains nothing more (or less) than a “theory put forward by a Justice of th[e] Court and uncontradicted by the majority in any . . . cases, ” Shapiro I, 136 S.Ct. at 456.[5]

         The dissent simply is incorrect when it states that Judge Bredar advocates “judicial abdication from partisan gerrymandering cases, ” post, at 48. Far from it. A final decision by a majority of Justices instructing lower courts to apply a particular standard to resolve partisan gerrymandering claims would be a welcome development in the law. See Shapiro II, 203 F.Supp.3d at 600 (Bredar, J., dissenting) (“This opinion is not a defense of the State's authority to segregate voters by political affiliation so as to achieve pure partisan ends: such conduct is noxious and has no place in a representative democracy.”). The point of this discussion is not to suggest that political gerrymandering claims are not or should not be justiciable; rather, it is to call attention to the uncertainty in the law, an uncertainty that was amplified two months ago when the Court granted argument in Whitford, Pausing these proceedings to await further guidance from the Supreme Court is not abdication: it is an expression of prudence, judicial restraint, and respect for the role of a district court that must scrupulously adhere to the instructions of appellate authorities.

         Because Plaintiffs are unable at this time to demonstrate that they will likely prevail on the threshold question of justiciability, and because the Supreme Court is poised to act and in so doing may change the legal landscape, Plaintiffs' preliminary injunction motion should be denied and their case stayed pending the Supreme Court's decision in Whitford,

         C. Causation

         1. Preliminary Injunction

         Apart from any doubts as to justiciability, and assuming without deciding that Plaintiffs have adduced sufficient evidence to show that the State crafted the 2011 redistricting plan (and the Sixth District in particular) with the “specific intent to impose a burden” on Plaintiffs and similarly situated citizens through vote dilution, Shapiro II, 203 F.Supp.3d at 596, it is unclear whether any such nefarious plan was and remains effective. This Court is not now persuaded that Plaintiffs will likely prove that “absent the mapmakers' intent to burden a particular group of voters by reason of their views, the concrete adverse impact would not have occurred.” Id. at 597. Put more simply, the Court is not yet persuaded that it was the gerrymander (versus a host of forces present in every election) that flipped the Sixth District and, more importantly, that will continue to control the electoral outcomes in that district. Voter decisions are mutable and subject to change, despite voting history and party affiliation. As discussed below, the razor's-edge Sixth District race in 2014 is evidence that suggests significant party-crossover voting and calls into doubt whether the State engineered an effective gerrymander.

         Trial testimony and other evidence, including thorough cross-examination, may yet establish that Plaintiffs have met their burden of proof with respect to causation, but the Court is not persuaded that they have done so now, at least not to the high standard set for the granting of preliminary injunctions. Since but-for causation is an element of Plaintiffs' First Amendment claim, it follows that if Plaintiffs are unable to prove this element, their claim will collapse on its merits. At this stage, the Court cannot say that it is likely that Plaintiffs will prevail on this element-only that they might. For that reason, the Court must deny Plaintiffs' request for the extraordinary remedy of preliminary injunctive relief.

         a. Findings of Fact

         Strictly for purposes of deciding whether to enter a preliminary injunction, the Court makes the following findings of fact, see Fed. R. Civ. P. 52(a)(2), corresponding to the causation element of Plaintiffs' First Amendment claim:

1. Maryland's 2011 redistricting process involved two parallel procedures: a public-facing procedure led by the Governor's Redistricting Advisory Committee and an internal procedure involving Maryland's congressional delegation and a consulting firm called NCEC Services, Inc. (ECF No. 177-4 at 36:4-13; ECF No. 177-5 ¶ 18.)
2. NCEC in turn designated analyst Eric Hawkins to review the State's redistricting plan and prepare sample maps using voter demographic data (including party affiliation and voting history) and a computer program called “Maptitude for Redistricting.” (ECF No. 177-4 at 36:18-37:17.)
3. In performing his analysis, Hawkins relied on a proprietary metric called the Democratic Performance Index (DPI), a weighted average of candidate performance that takes account of voting history. (Id. at 24:5-19.) A higher DPI signals a greater statistical likelihood of Democratic candidate success based on past performance.
4. Hawkins created between ten and twenty draft maps. He analyzed six maps alongside proposals submitted by third parties. Each of the six maps would have produced a federal DPI of 52% or greater for the Sixth District, while the third-party submissions would have produced much lower DPIs. (Id. at 38:2- 9; ECF No. 177-34; ECF No. 177-35 at 31-32.)
5. There is no evidence that Hawkins personally created the final map that was enacted into law. (ECF No. 177-1 at 13 n.9; ECF No. 186-1 at 11.) Former governor Martin O'Malley testified that legislative director Joe Bryce and staff from the Maryland Department of Planning likely created the final document. (ECF No. 177-3 at 53:12-54:7.)
6. The map as enacted had the effect of transferring 360, 368 Marylanders out of the Sixth District and 350, 179 Marylanders into the Sixth District. (ECF No. 177-19 at 12.) In the process, 66, 417 registered Republicans were removed from the district and 24, 460 registered Democrats were added to the district. (Id. at 6.)
7. After the 2011 plan was implemented, a plurality (44.8%) of voters in the Sixth District were registered Democrats, while 34.4% of voters were registered Republicans. 20.8% of voters were registered with neither major political party. (ECF No. 186-19 at 5-6.)
8. The “Cook Partisan Voting Index” promulgated by the Cook Political Report formerly rated the Sixth District as a safe Republican seat. As a consequence of the 2011 redistricting, the Sixth District is now rated as a “likely” Democratic seat. (ECF No. 177-52 at 8.)
9. In the 2012 congressional election (the first held in the new Sixth District), Democrat John Delaney defeated incumbent Republican congressman Roscoe Bartlett by a 20.9% margin. (ECF No. 177-5 ¶ 54.) However, in the U.S. Senate election conducted that same cycle, Democrat Ben Cardin carried the Sixth District by just 50% of the vote, despite winning 56% of the vote statewide. (ECF No. 186-19 at 10; ECF No. 186-42 PDF at 2.)
10. Congressman Delaney won reelection in 2014 and 2016 by margins of 1.5% and 14.4%, respectively. (ECF No. 177-5 ¶¶ 55-56.)
11. While Plaintiffs have produced expert reports predicting, based on party affiliation and other demographic data, that Democratic candidates will likely fare better under the 2011 plan than under the former plan, Plaintiffs have conducted no statistical sampling and have adduced no individual voter data showing how displaced and current residents of the Sixth District actually voted in 2012, 2014, and 2016.
12. Plaintiffs have not surveyed voters to determine (1) whether former supporters of Congressman Bartlett who remained in the Sixth District after the 2011 redistricting voted for Congressman Delaney instead, (2) whether such voters switched party affiliation or simply selected a different candidate on an ad hoc basis, and (3) the reasons underlying these voters' decisions. Nor have Plaintiffs amassed data concerning the voting ...

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