Gerrymandering Update

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By Michael Malone
Delegate, District 33

On November 7, the day after the General Election, a three-judge panel of the U.S. District Court for Maryland issued a landmark opinion in Benisek v. Lamone, finding that partisan gerrymandering in western Maryland violated voters' constitutional rights to representation and political association. Remarkably, both sides – the state of Maryland and the voters – agreed that the state in 2011 had drawn Maryland's congressional districts with the overarching dual goals of incumbent protection – keeping the same six Democrats in Congress – and redrawing one of the two Republican districts so that it would elect a Democratic congressperson, and the only question before the court was whether such intentionally drawn partisan districts violated the U.S. Constitution.

Personally, I found the recitation of fact after fact showing such naked Machiavellian intent by so many persons in power disturbing, offensive and chilling. Democratic powers in Annapolis deliberately and openly chose to crack the 6th District, some of which had been an intact district since the late 1800s and had comprised the five most northwestern counties since 1966. Statistically, it was the most Republican in Maryland. The state moved about 360,000 voters – about half the voters in the former 6th District – into other districts, so that a net of 66,000 Republican voters, more than 30 percent of them, were moved into other districts and replaced with 24,000 Democrats. According to the opinion, this caused "the single greatest alteration of voter makeup in any district in the nation following the 2010 census." (The results of the 2010 census required redistricting – but only about 10,000 people needed to be shifted from the 6th District.) This drastic upheaval, engineered by a computer program used here exclusively to politically gerrymander, was designed to and did unseat Roscoe Bartlett, a Republican congressman representing the 6th District since 1993 who had won and kept his seat by significant margins, replacing him with a Democrat.

Fortunately, the court agreed with the voters, finding that the state specifically targeted 6th District voters who either were registered Republicans or tended to vote Republican, deliberately diminishing those voters' ability to elect the candidate of their choice by moving them into other districts and, by doing so, violating their First Amendment rights to representation and free association. The right to representation basically means a citizen's right to vote and fully and effectively participate in the political process, which in this case occurred because the voters were targeted because of their political views. The right to free association refers to a person's right to associate with others to advance beliefs and ideas, including political ones, which was here infringed by the negative impacts to the Republican Party and its members in the former 6th District.

Within days of the opinion, Attorney General Brian Frosh announced his intent to appeal this judgment to the Supreme Court. (While the U.S. District Court is a trial court, and appeals from it would usually first go to the 4th Circuit Court of Appeals in Richmond, this appeal goes directly to the U.S. Supreme Court because it was decided by a three-judge panel). A few days later, after Attorney General Frosh requested a stay, the parties agreed to stay enforcement of the District Court's order, so that the redrawn maps need not be submitted to the U.S. District Court until the earlier of a decision by the Supreme Court or July 1, 2019.

There is, of course, no guarantee that the Supreme Court will uphold the federal District Court's decision or otherwise order that Maryland's Congressional districts be re-drawn in time for the 2020 election. Any lawyer can tell you that a case won on summary judgment, granting an injunction, and finding specific intent is both an amazing work of jurisprudence and vulnerable on appeal, especially given the Supreme Court's historic reluctance to act in political arenas. Governor Hogan has therefore announced a two-pronged attack on gerrymandering in Maryland. He has created a bipartisan emergency commission tasked with redrawing the 6th District by March 4, 2019, followed by a three-week comment period, for finalization and submission to the General Assembly before the end of session in April.

Governor Hogan appointed Judge Alex Williams, a Democrat, federal District Court judge nominated by President Clinton, and former state's attorney for Prince George’s County; Walter Olsen, a Republican and senior fellow at the CATO Institute Center for Constitutional Studies; and Ashley Oleson, an independent voter and administrator of the League of Women Voters. Six more commission members will be selected from the public. Governor Hogan also plans to introduce the Redistricting Reform Act of 2019 as emergency legislation when session opens on January 9, 2019.

The governor has proposed anti-gerrymandering bills four times, and I have also proposed anti-gerrymandering legislation, which the General Assembly has yet to bring out of committee, killing them in back rooms rather than in the light of the public's eye.

Partisan gerrymandering used to rig an election is wrong. Maryland voters should choose their own representatives, not the powers in Annapolis. Let’s stop GerryMaryland.

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