Tricky re­dis­trict­ing choice awaits

State lead­ers must de­cide whether to fix map or ap­peal to Supreme Court

Baltimore Sun - - NEWS - By Michael Dresser mdresser@balt­sun.com twit­ter.com/michaelt­dresser

Mary­land’s lead­ers face a crit­i­cal and com­plex choice in light of a de­ci­sion in which three fed­eral judges found the state’s 6th Con­gres­sional Dis­trict to be un­con­sti­tu­tion­ally ger­ry­man­dered: fix it or ap­peal to the U.S. Supreme Court.

At­tor­ney Gen­eral Brian Frosh, who will make the fi­nal call, hasn’t an­nounced a de­ci­sion. A spokes­woman said he hopes to de­cide soon, but un­der court rules he has more than three weeks to make up his mind.

Repub­li­can Gov. Larry Ho­gan wants Frosh to ac­cept de­feat and set the state on a course to draft a new map by the March 7 dead­line set by the judges.

The top lead­ers of the Demo­crat­ic­con­trolled Gen­eral Assem­bly, who were prin­ci­pal au­thors of the map that in­cludes the prob­lem­atic dis­trict, have de­clined to com­ment.

The State Board of Elec­tions and state elec­tions ad­min­is­tra­tor, who are the de­fen­dants in the case and are rep­re­sented by Frosh, are of­fi­cially neu­tral.

With­out the rul­ing, the state’s next re­dis­trict­ing would not take ef­fect un­til the 2022 elec­tion, af­ter the 2020 U.S. Cen­sus is com­pleted. States are re­quired to ad­just their lines af­ter each cen­sus to re­flect pop­u­la­tion changes.

But the panel of fed­eral judges found Wed­nes­day that the state’s Demo­cratic lead­ers vi­o­lated the rights of Repub­li­cans in West­ern Mary­land when they used data from the 2010 Cen­sus to draw the 6th Dis­trict’s lines with an in­tent of “flip­ping” it from a Repub­li­can-held seat to one that could elect a Demo­crat. One of the judges on the panel is from the 4th U.S. Cir­cuit Court of Ap­peals and two are from the U.S. Dis­trict Court in Bal­ti­more.

If the state com­plies with the rul­ing — or if it ap­peals and is quickly turned down — the gover­nor and the Gen­eral Assem­bly would face the task of draw­ing a new map for the 2020 elec­tion. It is un­clear whether any such so­lu­tion would af­fect just the 6th Dis­trict and the neigh­bor­ing 8th Dis­trict, or re­sult in a new map for the whole state.

The gover­nor could pro­pose a map to the leg­is­la­ture, and later make what­ever changes needed to get it passed. Any leg­is­la­tor could come up with his or her own map. If the Gen­eral Assem­bly adopted a plan of its own, the gover­nor could veto it, al­though the Democrats have the votes to over­ride such a veto.

Af­ter the state’s plan is fi­nal, it would still need the judges’ ap­proval.

“The rul­ing is clear,” said Todd Eberly, a po­lit­i­cal sci­en­tist at St. Mary’s Col­lege. “’If you send us a map­we­don’t like, you don’t get a sec­ond chance. We’ll draw it.’”

If Frosh de­cides to ap­peal, he could ask for a de­lay of the March 7 dead­line. Whether he would get one would be up to the courts.

Any at­tempt to take the case to the high court has na­tional ap­peal for Democrats. If the Supreme Court agreed to hear it, and up­held this week’s de­ci­sion, that could set a prece­dent across the coun­try that would curb the prac­tice of let­ting leg­is­la­tors choose their vot­ers — rather than the other way around.

Af­ter a Repub­li­can wave in the 2010 elec­tions, GOP leg­is­la­tures and gov­er­nors ger­ry­man­dered con­gres­sional dis­tricts in many states to limit the num­ber of seats for which Democrats could com­pete. It was a strat­egy that let the GOP dom­i­nate the U.S. House for most of the decade — un­til this year’s blue wave gave the Democrats back the ma­jor­ity.

Mary­land was one of the few states that emerged from 2010 with a Demo­cratic gover­nor and deep blue ma­jori­ties in both houses of the leg­is­la­ture. As spelled out in the judges’ de­ci­sion this week, then-Gov. Mar­tin O’Mal­ley, state Se­nate Pres­i­dent Thomas V. Mike Miller and House Speaker Michael Busch worked to turn Mary­land’s 6-2 Demo­cratic ma­jor­ity in the U.S. House del­e­ga­tion to a 7-1 ad­van­tage.

Un­til the court rul­ing, the strat­egy was a suc­cess: Democrats won con­trol of the 6th in 2012 and have held onto the seat.

Repub­li­can vot­ers chal­lenged the map in court. Af­ter a lengthy process that took them to the Supreme Court and back, they won Wed­nes­day. The judges said that if the Gen­eral Assem­bly and Ho­gan don’t com­ply by the dead­line, the job will go to a three-per­son com­mis­sion.

Michael B. Kim­berly, a lawyer for the plain­tiffs, said that as­sum­ing the state ap­peals, the Supreme Court could take up the Mary­land case, a re­dis­trict­ing case from North Carolina or both.

In the North Carolina case, a lower court found that Repub­li­cans in that state un­con­sti­tu­tion­ally stacked the deck when they drew con­gres­sional dis­trict lines. The court did not in­sist that new lines be drawn for this year’s elec­tion, and North Carolina elected Repub­li­cans to 10 of its 13 seats.

“On a na­tional level, there’s no ques­tion it would be help­ful to the Democrats to do away with ger­ry­man­der­ing,” Kim­berly said. “It would be help­ful for our democ­racy na­tion­wide.”

Raquel Guil­lory Coombs, a spokes­woman for Frosh, said the state will de­cide quickly whether to ap­peal be­cause of strict time lim­its in the judges’ or­der.

If Ho­gan had his way, the state wouldn’t ap­peal, spokes­woman Amelia Chasse said. He has ad­vo­cated for giv­ing the job of draw­ing con­gres­sional and state leg­isla­tive dis­trict lines to an in­de­pen­dent com­mis­sion.

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