Many informed Americans have long been aware of the problem of judicial activism, the rewriting of federal law from the bench. However, it has historically been rare for courts to simply ignore a core provision of a law governing their own operations.
That is why Judicial Watch recently filed an amicus curiae brief with the U.S. Supreme Court asking it to review a federal ruling
that would allow a single judge to determine whether politicians can ignore the voices of their constituents when drawing legislative districts. Judicial Watch filed the brief to support the petitioners in Stephen M. Shapiro et al. v Bobbie S. Mack et al
The Three-Judge Court Act, dating back more than a century, requires that three-judge panels hear all constitutional challenges to legislative redistricting unless the case is “obviously frivolous,” “essentially fictitious,” “wholly insubstantial” or “obviously without merit.”
Yet, in 2003, the Fourth Circuit Court of Appeals set aside this precedent, determining that a single judge could decide against convening a three-judge panel if he determined the case was not “plausible.” The Fourth Circuit applied the same standard in its 2014 ruling against the plaintiffs in Shapiro.
The Three-Judge Court Act represents Congress’ and the courts’ recognition of the vital importance of safeguarding voters against gerrymandering abuses. The Fourth Circuit, however, has subverted these protections by granting one judge inordinate power to effectively decide whether voters can challenge how a state draws congressional and state legislative districts.
In November 2013, the plaintiffs sued Bobbie Mack (chair of the Maryland State Board of Elections) and Linda Lamone (state administrator of the board), alleging that the 2011 congressional districts established by the Maryland General Assembly violated their constitutional rights. When a district court judge dismissed the suit, the plaintiffs appealed to 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 Supreme Court."
The lawsuit challenged a congressional redistricting plan signed into law by then-Gov. Martin O’Malley in 2011. At the time, critics 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 argues the Fourth Circuit decision “raises an important issue of federal election law that should be heard by this Court: 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."
The Fourth Circuit’s circumvention of federal law has resulted 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 challenges, especially in regards to legislation such as the 1964 Civil Rights Act, to be heard under the “exceptional procedure” of a special three-judge panel.
In 1976, Congress strengthened the Three-Judge Act by specifically ensuring 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.”
The Three-Judge Court Act allows appeals from the district court three-judge panels to go directly to the Supreme Court, bypassing the appeals courts in the interest of timely resolution: "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."
Judicial Watch entered the Maryland redistricting battle on Aug. 10, 2012, representing MDPetitions.com and Delegate Neil Parrott in the successful lawsuit
to block the state’s Democrat party from removing a voter referendum on the state’s controversial gerrymandering plan from the ballot.
Three weeks later, Judicial Watch again represented Parrott in filing a complaint against Maryland Secretary of State John McDonough and the State Board of Elections challenging the misleading wording of the ballot question.
Judicial Watch is not walking away from the gerrymandering abuse in Maryland. Voters and communities are not just pieces on a political game board.
Tom Fitton is the president of Judicial Watch. He is a nationally recognized expert on government corruption. A former talk radio and television host and analyst, Tom is well known across the country as a national spokesperson for the conservative cause. He has been quoted in Time, Vanity Fair, The Washington Post, The New York Times, and most every other major newspaper in the country. For more of his reports, Go Here Now.
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