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Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Judicial Watch, Inc. is a conservative, non-partisan educational foundation, which promotes transparency, accountability and integrity in government, politics and the law.

Because no one
is above the law!


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Judicial Watch Files Amicus Brief with U.S. Supreme Court Alleging Fourth Circuit Violated Federal Law in Allowing One Judge to Review Critical Maryland Gerrymandering Case

Federal Law Requires Three Judges to Hear Redistricting Challenges

(Washington, DC) – Judicial Watch announced today that on March 20, 2015, it filed an amicus curiae brief with the U.S. Supreme Court asking it to review a Fourth Circuit Court ruling that violates the Three-Judge Court Act by allowing a single judge to rule on a critical Maryland gerrymandering case. The Judicial Watch brief was filed to support the petitioners in Stephen M. Shapiro et al. v Bobbie S. Mack et al. (No. 14-990).

The Three-Judge Court Act requires that three-judge panels must hear all constitutional challenges to legislative redistricting unless, according to past Supreme Court rulings, the case is “obviously frivolous,” “essentially fictitious,” “wholly insubstantial,” or “obviously without merit.” In 2003, the Fourth Circuit Court departed from this precedent, determining that a single judge could decide not to convene a three-judge panel if he determined the case was not “plausible.” The Fourth Circuit applied the same standard in its 2014 ruling against plaintiffs Shapiro, Benisek, and Pycha.

In November 2013, Shapiro, Benisek, and Pycha sued Bobbie Mack (the Chair of the Maryland State Board of Elections) and Linda Lamone (the State Administrator of the Maryland State Board of Elections) in the U.S. District Court for the District of Maryland alleging that the 2011 congressional districts established by the Maryland General Assembly violated their constitutional rights. When a single District Court judge dismissed the suit, the plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit. In October 2014, the Fourth Circuit upheld the District Court ruling, denying the plaintiffs an oral hearing before a three-judge panel. In February 2015, the plaintiffs filed a Petition for a Writ of Certiorari to the U.S. Supreme Court.

In its amicus curiae brief to the Supreme Court to support Shapiro’s Petition for Certiorari, Judicial Watch argues that the Fourth Circuit decision “raises an important issue of federal election law that should be heard by this Court,” adding:

In particular, Judicial Watch is concerned that the Fourth Circuit’s ruling violates the Three-Judge Court Act and will allow states to delay judicial review of gerrymandered redistricting plans that disenfranchise voters and violate the Constitution.  Judicial Watch has represented parties in two recent cases in Maryland concerning a ballot referendum on the state’s gerrymandered redistricting plan. Moreover, Judicial Watch may wish to be involved in challenges to gerrymandering on behalf of members or clients in the future, and believes the federal judiciary should not be erecting further obstacles to review.

Judicial Watch argues that the Fourth Circuit’s circumvention of federal law results in “an allocation of authority” to one federal court judge that “cannot be squared with Congress’s judgment—recognized by this Court and others—that apportionment challenges and other types of three-judge cases are too important to be decided in the first instance by a single judge. Nor is the difference between one and three judges merely a formality.”

Congress intended redistricting and other constitutional challenges under laws such as the Civil Rights Act of 1964 to be heard under the “exceptional procedure” of a special three-judge panel.  In 1976, Congress specifically tried to ensure that redistricting cases were handled by such panels in order “to assure more weight and greater deliberation by not leaving the fate of such litigation to a single judge. By instead using motions to dismiss to limit access to three-judge courts, the Fourth Circuit has turned the Three-Judge Court Act’s purpose and framework on its head.” 

The Three-Judge Court Act allows appeals from the District Court panels to go directly to the Supreme Court, bypassing the federal Circuit Courts of Appeals.  This statute assures a speedy resolution to this important class of cases, which is undermined by the Fourth Circuit’s rule, especially in redistricting cases (which impact both federal and state elections):

And when the clock is always counting down towards the next election, such a delay can control whether the alleged constitutional violation can be remedied or if it is something that a state’s voters simply must swallow.

The 2013 lawsuit by Shapiro, Benisek, and Pycha challenged a congressional districting plan signed into law by then-Gov. Martin O’Malley in October 2011. Critics at the time charged that the new congressional map was specifically designed to enhance the power of select incumbents while minimizing the voting power of minorities, rural voters and Republicans. The Washington Post editorialized: “The map, drafted under Mr. O’Malley’s watchful eye, mocks the idea that voting districts should be compact or easily navigable. The eight districts respect neither jurisdictional boundaries nor communities of interest. To protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies in cubism.”

“Judicial Watch believes that no one is above the law, especially the courts,” said Judicial Watch President Tom Fitton. “For 40 years, Congress and the courts have recognized the vital importance of safeguarding voters against gerrymandering abuses through passing and upholding the Three-Court Judge Act. The Fourth Circuit subverts this law by allowing one judge inordinate power to effectively decide whether voters can challenge how a state draws congressional and state legislative districts.”

Judicial Watch is working with attorneys Meir Feder and Rajeev Muttreja of the Jones Day law firm, who prepared and filed this amicus brief on Judicial Watch’s behalf.

Judicial Watch first entered the Maryland redistricting battle on August 10, 2012, when it represented and Delegate Neil Parrott in its successful lawsuit to block a move by the state’s Democrat party to have an Election Day voter referendum on the state’s controversial gerrymandering plan removed from the ballot. Three weeks later, Judicial Watch again represented Delegate Parrott in filing a complaint against Maryland Secretary of State John McDonough and the State Board of Elections challenging the misleading language of the wording of the ballot question.