Are Courts Above the Law?

by Judicial Watch: We have a president who thinks he can rewrite the law on his own. This has long been the practice of too many activist judges, but rarely have courts simply ignored a core provision of a law governing their operations. And that is why we filed an amicus curiae brief with the U.S. Supreme Court asking it to review a Fourth Circuit ruling that conflicts with the Three-Judge Act by allowing only one judge to rule in 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.

The Three-Judge Court Act, dating back more than a century, 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.” Yet, in 2003, the Fourth Circuit Court began to ignore this precedent in 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 again applied the same contrarian standard in its 2014 ruling against plaintiffs Shapiro, Benisek, and Pycha.

Congress and the courts have recognized the vital importance of safeguarding voters against gerrymandering abuses by passing and upholding the Three-Judge Court 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. And JW’s position is that no one is above the law, most especially the courts.

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.

Our legal team 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.We also point 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’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.”

Let’s review some recent history to help drive home the importance of this case and what it means for average voters across the country.

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 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.” As we say in our amicus, by instead using “motions to dismiss” to arbitrarily 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 three-judge 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:
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.”

Your JW has been out in front of this case for some time now. We first entered the Maryland redistricting battle on August 10, 2012, when we represented MDPetitions.com and Delegate Neil Parrott in the 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 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.

Whether or not the Supreme Court decides to review the case (grants cert), Judicial Watch isn’t walking away from the gerrymandering abuse in Maryland. You can expect more court action to uphold constitutional protections of citizens’ voting rights from shady state politicians who treat entire communities and voters like pieces on a game board.
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This article was three items in Judicial Watch Makes History. The two other two articles were Judicial Watch Files Seven Lawsuits to Expose Clinton Email Scandal and Skiing and Politicking on the Taxpayer Dime.

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