Federal Courts Are Not Above the Law

Tom Fitton | September 3, 2015 | 12:10pm EDT
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This 2011 photo shows Sen. Andy Biggs, R-Gilbert, with redistricting maps during a hearing on the state commission's proposed maps of new congressional and legislative districts. (AP Photo/Ross D. Franklin)

For decades, the courts have recognized the importance of safeguarding voters against gerrymandering abuses by passing and upholding the Three-Judge Court Act, a federal law that dates back to 1910.

The Act requires three-judge District Court panels to hear all constitutional challenges to legislative redistricting.  This law also requires three federal judges to be empaneled to hear key federal lawsuits concerning voting rights, campaign finance, and other key constitutional issues unless a case is “obviously frivolous.”

Yet, in contravention of the Three-Judge Court Act, the U.S. Court of Appeals for the Fourth Circuit allowed a single District Court judge to rule on a critical Maryland gerrymandering case (Stephen M. Shapiro, et al. v. David J. McManus, Jr., Chairman, Maryland State Board of Elections, et al.  (No. 14-990)).  So, on August 14, 2015, Judicial Watch filed an amicus curiae brief with the U.S. Supreme Court asking the court to reassert the rule of law and affirm the Three-Judge Court Act.

In 2013, one judge on the District Court ignored the requirement to convene a three-judge panel because he determined the case was not “plausible.”  The Fourth Circuit upheld this decision in its 2014 ruling against Mr. Shapiro and fellow plaintiffs John Benisek, and Maria Pycha.

In November 2013, Shapiro, Benisek, and Pycha sued Maryland state officials alleging that the 2011 congressional districts established by the Maryland General Assembly violated their constitutional rights. When a single judge from the District Court dismissed the suit, the plaintiffs appealed to the U.S. Court of Appeals for the Fourth Circuit. In October 2014, the Fourth Circuit Court upheld the District Court ruling, denying the plaintiffs a 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, which the Supreme Court granted in June 2015.

Judicial Watch has a particular interest in this issue, as it represents several Maryland voters in a separate lawsuit challenging the constitutionality of Maryland’s gerrymandered congressional district maps.  Judicial Watch’s amicus brief argues that:

“[T]he 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.  Moreover, on June 24, 2015, Judicial Watch filed a new constitutional challenge to Maryland’s redistricting plan on behalf of several plaintiffs. See Parrott v. McManus, No. 1:15-cv-01849 (D. Md.). The plaintiffs have asked for a three-judge panel in Parrott, but no such panel has been convened yet, and a motion to dismiss is currently pending before the single judge initially assigned to the case.”

Judicial Watch points out 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’ 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 three judge District Court panels to go directly to the Supreme Court, bypassing the federal Circuit Courts of Appeals.  This statute assures a more speedy resolution to this important class of cases, which the Fourth Circuit’s rule undermines, especially in redistricting cases (which affect 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 came in response to 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.”

Earlier this year, when the Supreme Court was deciding whether to take up the Three-Judge Court Act challenge, Judicial Watch filed the only amicus brief.  Obviously, the Supreme Court, it seems, agreed with Judicial Watch and the petitioners and granted cert. on June 8, 2015.

The Supreme Court should affirm the Three-Judge Court Act and remind the Fourth Circuit that the federal courts are not above the law.  The Fourth Circuit subverts the law by allowing one judge inordinate power to effectively decide whether voters can challenge how a state draws congressional and state legislative districts.

The Supreme Court should now check this judicial legislating that makes it harder for voters to vindicate their constitutional rights.

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.

Our work on this issue goes back several years.

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, we 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.  The current constitutional challenge to the Maryland gerrymander is pending in federal court (Parrott, et al, v. Lamone, et al (No. 1:15-cv-01849).

The Supreme Court should rule by next summer.

Tom Fitton is the President of Judicial Watch, the public interest group that investigates and prosecutes government corruption. Founded in 1994, Judicial Watch seeks to ensure government and judicial officials act ethically and do not abuse the powers entrusted to them by the American public.

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