Republicans made a final pitch today for a congressional district map more favorable to the GOP, asking the Connecticut Supreme Court to reject districts drawn by a special master who closely followed the court’s own guidelines.

Ross H. Garber, an attorney for Republicans on the legislature’s Reapportionment Commission, acknowledged that Special Master Nathaniel Persily’s map met the criteria set by the court and has no statutory or constitutional defect.

Special master's draft

The border between the 5th (brown) and 1st (green) is the issue.

Those concessions made for an uphill argument to the court, whose members peppered Garber with questions.

Garber not only needs to convince the court that Persily’s recommended map needs significant revisions, but that the court was wrong when it instructed him to make only the minimal changes in the existing map.

With the court facing a constitutional deadline of Feb. 15 to file a congressional map with the secretary of the state, several justices were openly skeptical about whether objections to their instruction to Persily were timely.

Justice Lubbie Harper Jr., the court’s newest justice and the only nominee of Democratic Gov. Dannel P. Malloy, quickly interrupted Garber’s presentation with central questions about the court’s discretion and its instructions to the special master.

In a brief filed before today’s arguments, Garber attacked the order the court issued on Jan. 3, telling Persily to modify existing districts “only to the extent reasonably required to comply” with legal requirements, such as equalizing the population.

On Jan. 13, Persily filed a report that made only the changes necessary in the existing map to equalize population in the five districts.

“The Special Master’s Report makes clear that he drew this map not because he thinks it is a good or a fair one, but because he deemed himself constrained by the court’s order of January 3,” Garber wrote.

In court today, Garber said the justices they were in the position of having to draw district lines for the first time, a legislative role forced on a reluctant court by the deadlocked legislative Reapportionment Commission.

“I think we all agree, this is an unprecedented situation,” Garber said.

In essence, he urged them to make the most of the opportunity to correct a gerrymander drawn during the last round of redistricting in 2001 that created an awkwardly shaped 5th Congressional District, albeit with the blessing of both Democrats and Republicans.

Garber said the court would not have to start from scratch: The only dispute is the irregular border between the 1st and 5th congressional districts.

The court has justified giving deference to the existing map by noting it was the product of a bipartisan political compromise, but Garber told the justices the compromise was drawn to satisfy two politicians, not the broader public.

In 2001, the state was losing one of its six U.S. House seats over population changes. At the time, Connecticut had an evenly divided delegation: three Democrats and three Republicans.

The legislative commission placed two incumbents, Democrat James Maloney and Republican Nancy Johnson, in a 5th Congressional District that balanced their strengths.

On its face, the district was competitive: the Republican incumbent won in 2002 and 2004, then Democrat Chris Murphy carried the district in 2006, 2008 and 2010.

In the gubernatorial race, it was carried by Republicans in 2010, an indication that the district is likely to be competitive in 2012, with the seat open due to Murphy’s decision to run for the U.S. Senate.

Republicans also fared reasonably well statewide under the 2001 map, winning three of five seats in 2002 and 2004. Democrats won four of five in 2006 and swept all five in 2008 and 2010.

“Your position is the map is not now fair?” asked Justice Richard N. Palmer, an appointee of former Gov. Lowell P. Weicker Jr., a Republican-turned-independent.

“Yes,” Garber replied.

Garber said that a map drawn to be fair for Maloney and Johnson was not necessarily fair for Democrats and Republicans in general.

Aaron Bayer, the lawyer for the Democrats on the commission, said Garber and the Republicans faced a heavy burden in their arguments. Essentially, he said, the GOP wanted the court to reject a map that was constitutionally sound and insert itself into what was a legislative function.

Justice Ian C. McLachlan, who was appointed by former Gov. M. Jodi Rell, a Republican, challenged Bayer, asking if he was arguing that the court lacked the discretion to make more significant changes to the map.

Bayer said the court had sweeping discretion, since the state Constitution offered little guidance.

While Garber argued that discretion means the court can be more aggressive in drawing a new map, Bayer countered by saying that same discretion means the court has the right to take the minimalist approach it did in its Jan. 3 order to Persily.

Mark is the Capitol Bureau Chief and a co-founder of CT Mirror. He is a frequent contributor to WNPR, a former state politics writer for The Hartford Courant and Journal Inquirer, and contributor for The New York Times.

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