Waiting on the Court

This article appeared in The Frederick News-Post on May 25, 2019.
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Some time between now and the end of June the U.S. Supreme Court is expected to rule in Lamone v. Benisek, the case challenging the gerrymander of Maryland's Sixth Congressional District, which includes Frederick. Here's a quick guide to what to expect.

When will we know? The Justices heard argument March 26. Typically it takes the Court more than two months to decide a case: as of this week it has ruled on only one case each from its February and March sittings. If that pattern holds up, it will decide this case in June, the last month of its term.

One reason to think the decision might come late in June rather than early: when the Court has a case it knows will be highly controversial, it often tends to hold its release until the final days of its term.

If it reverses the lower court and upholds the existing map. Three conservative Justices have taken the view that federal courts lack the power to remedy partisan gerrymanders. Should newcomers Neil Gorsuch and Brett Kavanaugh agree, the lawsuit probably ends and the existing map stays in place for the 2020 election. That doesn't mean gerrymandering won't be be back in the news before long, since the upcoming Census will set in motion a new required cycle of map-drawing nationwide.

If it upholds the lower court and rules the map unlawful. The case then goes back to the three-judge federal panel to order a remedy. Note that the court ruled on the lawfulness of only one Maryland district, the Sixth. That's not because others such as the Third, Fourth, and Seventh aren't gerrymandered just as weirdly. But the litigation as it went along got narrowed down to challenge only the one district that changed partisan hands as a result of Gov. Martin O'Malley's map, which was the Sixth.

When courts find just one district unlawful, they tend to favor a remedy that tinkers no more than necessary with other districts. At one point, the court suggested it would be amenable to a plan that swapped territory between the Sixth and the adjacent Eighth, amounting to minimally invasive surgery.

Who would devise a new plan? If it chooses, the legislature could come back into session to adopt a map it hopes the court might accept. Or Attorney General Brian Frosh, who has defended the gerrymander each step of the way, could do so.

In its November ruling, the court suggested it would appoint its own experts to redraw the Sixth. Since then, however, Governor Hogan's nonpartisan Emergency Commission on Sixth District Congressional Gerrymandering, on which I served, convened and recommended a two-district fix that would leave both Sixth and Eighth reasonably compact while ending the needless split of Frederick County. The court might consider adopting this map, which hews closely to what its own experts would probably come up with and has the added advantage of having been through public notice as well as hearings both before and after its approval by a unanimous commission of citizen volunteers.

What is likely to make the case a big national story is that whatever principles the Court announces will apply nationwide, with other gerrymanders all around the country standing or falling as a result. On the day the decision hits, one thing is certain: the eyes of the nation will be on our community.

Walter Olson

Walter Olson, a New Market resident, is a senior fellow at the Cato Institute and served as co-chair of Governor Hogan’s commission on Sixth District gerrymandering.