Ho­gan calls for state re­dis­trict­ing com­mis­sion

Kent County News - - FRONT PAGE - By DANIEL DIVILIO [email protected]­coun­tynews.com

AN­NAPO­LIS — On Mon­day, Gov. Larry Ho­gan is­sued an ex­ec­u­tive or­der in the hopes of tak­ing cor­rec­tive ac­tion against the 2011 re­dis­trict­ing ef­fort that he has said left Mary­land with some of the most ger­ry­man­dered con­gres­sional dis­tricts in the coun­try.

Ho­gan’s or­der calls for the cre­ation of an emer­gency com­mis­sion to ad­dress the 6th District. Fed­eral judges is­sued opin­ions ear­lier this month say­ing the 6th District, as re­drawn 2011 in a process over­seen by then Gov. Martin O’Mal­ley, vi­o­lates cit­i­zens’ First Amend­ment rights.

“This is a vic­tory for the vast ma­jor­ity of Mary­lan­ders who want free and fair elec­tions and the nu­mer­ous ad­vo­cates from across the po­lit­i­cal spec­trum who have been fight­ing par­ti­san ger­ry­man­der­ing in our state for decades. With this unan­i­mous rul­ing, the fed­eral court is con­firm­ing what we in Mary­land have known for a long time — that we have the most ger­ry­man­dered dis­tricts in the coun­try, they were drawn this way for par­ti­san rea­sons, and they vi­o­late Mary­lan­ders’ con­sti­tu­tional rights,” Ho­gan said in a state­ment fol­low­ing the opin­ion’s re­lease Nov. 7.

The term “ger­ry­man­der” comes from the early 1800s, when Mas­sachusetts Gov. El­bridge Gerry drew dis­tricts fa­vor­ing his party but which one news­pa­per likened to the shape of a sala­man­der.

Ac­cord­ing to a news re­lease is­sued Mon­day from Ho­gan’s of­fice, his ex­ec­u­tive or­der calls for a non­par­ti­san com­mis­sion to sub­mit a new map for the 6th District for pub­lic com­ment by March 4. It would then go to the Gen­eral Assem­bly by April 2.

His­tor­i­cally, the 6th District in­cluded western Mary­land and stretched along the north­ern state line into Har­ford County. For 20 years, it was rep­re­sented by Repub­li­can Roscoe Bartlett.

Fol­low­ing the 2010 U.S. Cen­sus, the state un­der­took manda­tory re­dis­trict­ing ef­forts to en­sure the new pop­u­la­tion fig­ures main­tained the stan­dard of “one man, one vote.”

When the lines for the 6th District were re­drawn, it re­tained Gar­rett, Wash­ing­ton and Al­le­gany coun­ties. But rather than con­tinue through the north­ern parts of Fred­er­ick, Car­roll, Bal­ti­more and Har­ford coun­ties, it turned south to pick up a large por­tion of Mont­gomery County.

Of Mary­land’s eight con­gres­sional dis­tricts, the 1st and 6th were seen as Repub­li­can strongholds. Fol­low­ing the 2011 re­dis­trict­ing, the 6th turned Demo­crat.

In his Nov. 7 opin­ion, U.S. Court of Ap­peals Judge Paul V. Niemeyer said the court will en­ter an in­junc­tion bar­ring the state from hold­ing any ad­di­tional elec­tions for the U.S. House of Rep­re­sen­ta­tives un­der the 2011 re­dis­trict­ing plan and di­rects the state to adopt promptly new dis­tricts ad­dress­ing the con­sti­tu­tional vi­o­la­tions found re­gard­ing the 6th District.

“While the State ar­gues that a per­ma­nent in­junc­tion will be un­duly dis­rup­tive, we note our judg­ment is be­ing is­sued two years be­fore the next gen­eral elec­tion — a time pe­riod that will al­low the state to com­ply in an or­derly fash­ion,” Niemeyer wrote. “(W)e be­lieve that re­draw­ing district lines to com­ply with the Con­sti­tu­tion will not sow any ad­di­tional con­fu­sion be­yond that caused by the il­le­gal lines them­selves.”

Niemeyer found that the state bur­dened the tar­geted Repub­li­can vot­ers’ rep­re­sen­ta­tional rights and their right of as­so­ci­a­tion “as demon­strated by voter con­fu­sion, di­min­ished par­tic­i­pa­tion in Repub­li­can or­ga­ni­za­tional ef­forts in the Sixth District, and di­min­ished Repub­li­can par­tic­i­pa­tion in vot­ing, as well as de­creased Repub­li­can fundrais­ing.”

“To be sure, cit­i­zens have no con­sti­tu­tional right to be as­signed to a district that is likely to elect a rep­re­sen­ta­tive that shares their views. But they do have a right un­der the First Amend­ment not to have the value of their vote di­min­ished be­cause of the po­lit­i­cal views they have ex­pressed through their party af­fil­i­a­tion and vot­ing his­tory,” Niemeyer wrote. “This tar­get­ing of a cit­i­zen’s view­point is typ­i­cal of First Amend­ment vi­o­la­tions in other con­texts.”

Ho­gan, a Repub­li­can, has re­peat­edly raised is­sues about the re­dis­trict­ing process and the maps ap­proved un­der the watch of O’Mal­ley, a Demo­crat. Ho­gan is us­ing this month’s rul­ing on the 6th District as an­other chance to push for re­dis­trict­ing to be­come a non­po­lit­i­cal process.

“Free and fair elec­tions are the very foun­da­tion of Amer­i­can democ­racy and the most ba­sic prom­ise that those in power can pledge to the cit­i­zens we rep­re­sent,” Ho­gan said Mon­day. “This unan­i­mous rul­ing was a vic­tory for the over­whelm­ing ma­jor­ity of Mary­lan­ders who value fair­ness and bal­ance in our po­lit­i­cal sys­tem — who are fed up with the di­vi­sive par­ti­san pol­i­tics that are used to sup­press any hon­est de­bate or real com­pe­ti­tion of ideas.”

The Law­suit

The plain­tiffs in the case are seven Repub­li­cans who pre­vi­ously lived within the 6th District prior to the 2011 re­dis­trict­ing. They al­lege their votes were di­luted based on their party af­fil­i­a­tion, thereby vi­o­lat­ing their First Amend­ment rights. The goal, the plain­tiffs said, was to take Mary­land’s House del­e­ga­tion from six Democrats and two Repub­li­cans to seven Democrats and one Repub­li­can.

“To do so, the of­fi­cials tar­geted Repub­li­can vot­ers in the Sixth District by, on net, re­mov­ing roughly 66,000 of them from the district and adding some 24,000 Demo­cratic vot­ers, thereby ef­fect­ing a swing of about 90,000 vot­ers and bring­ing about the sin­gle great­est al­ter­ation of voter makeup in any district in the Na­tion fol­low­ing the 2010 cen­sus,” Niemeyer wrote in his opin­ion. “(N)o party dis­putes the ma­te­rial facts in the record, although the par­ties do dis­pute the le­gal con­se­quences that flow from them.”

Ac­cord­ing to the facts stated in Niemeyer’s find­ings, the 6th District had grown by 10,186 res­i­dents at the time of the 2010 Cen­sus than the “ideal ad­justed pop­u­la­tion of 721,529 for a Mary­land con­gres­sional district.”

“Thus, Mary­land was re­quired to re­move a net of 10,186 res­i­dents from the Sixth District to achieve the re­quired equal pop­u­la­tion for the District. With such a mod­est ad­just­ment, how­ever, the Sixth District would have re­mained a solid Repub­li­can district, which, to­gether with the First District on the East­ern Shore of Mary­land, would have given Mary­land two reli­ably Repub­li­can dis­tricts,” Niemeyer wrote.

O’Mal­ley’s re­dis­trict­ing com­mit­tee achieved the re­sult it de­sired and that O’Mal­ley him­self has said he felt pres­sured to de­liver. The 6th District was flipped.

“As a gover­nor, I held that re­dis­trict­ing pen in my own Demo­cratic hand. I was con­vinced that we should use our po­lit­i­cal power to pass a map that was more fa­vor­able for the elec­tion of Demo­cratic can­di­dates. That in this hyper-par­ti­san era, we should not ‘dis­arm uni­lat­er­ally.’ That this was le­gal and passes Con­sti­tu­tional muster. And it did,” reads a copy of a speech O’Mal­ley gave last year at the Bos­ton Col­lege School of Law.

Bartlett was voted out in 2013 af­ter hold­ing his 6th District seat for 20 years. He was re­placed by John K. De­laney, who opted not to seek re-elec­tion this year hav­ing in­stead launched a bid for pres­i­dent in 2017. Demo­crat David Trone was elected De­lany’s re­place­ment this month.

Andy Har­ris, rep­re­sent­ing the 1st District, re­mains Mary­land’s sole Repub­li­can on Capi­tol Hill. Ap­par­ently, thought was given to swing­ing the 1st District, com­pris­ing the en­tirety of the East­ern Shore, as well.

“Af­ter brief con­sid­er­a­tion, Gover­nor O’Mal­ley re­jected the no­tion of flip­ping the First District be­cause the re­sult­ing district would have to jump across the Ch­e­sa­peake Bay,” Niemeyer wrote in his opin­ion.

O’Mal­ley formed a re­dis­trict­ing ad­vi­sory com­mit­tee of pri­mar­ily Democrats. He named his Ap­point­ments Sec­re­tary Jeanne D. Hitch­cock, who Niemeyer wrote had “no prior redi­rect­ing ex­pe­ri­ence,” state Se­nate Pres­i­dent Thom- as V. Mike Miller Jr., House of Del­e­gates Speaker Michael E. Busch, O’Mal­ley’s Prince Ge­orge’s County re-elec­tion cam­paign chair­man Richard Ste­wart and for­mer del­e­gate James J. King, the only Repub­li­can on the panel.

Ac­cord­ing to the facts stated in the fed­eral law­suit, the ad­vi­sory com­mit­tee led the pub­lic hear­ings, while Mary­land’s con­gres­sional del­e­ga­tion, led by U.S. Rep. Steny Hoyer of the 5th District and House mi­nor­ity whip, and who Niemeyer wrote “has de­scribed him­self as a ‘se­rial ger­ry­man­derer,’” worked at draft­ing new district lines.

“(B)ecause the Con­sti­tu­tion com­mits district ap­por­tion­ment to po­lit­i­cal de­part­ments, it is quintessen­tially a po­lit­i­cal process, and courts can­not in­val­i­date a re­dis­trict­ing map merely be­cause its drafters took po­lit­i­cal con­sid­er­a­tions into ac­count in some man­ner,” Niemeyer wrote. “None­the­less, when po­lit­i­cal con­sid­er­a­tions are taken into ac­count

to an ex­treme, the pub­lic per­ceives an abuse of the demo­cratic process with­out fully un­der­stand­ing how it can be re­solved within the ex­ist­ing struc­ture. In­deed, par­ti­san ger­ry­man­der­ing, as it is called, is widely con­sid­ered to be re­pug­nant to rep­re­sen­ta­tive democ­racy.”

Mary­land’s 3rd District, cir­cling and in­clud­ing parts of Bal­ti­more City, was the sub­ject of pre­vi­ous ger­ry­man­der­ing law­suits fol­low­ing the 2011 re­dis­trict­ing, once over pol­i­tics and an­other over racial com­po­si­tion.

In is­su­ing an opin­ion in the case re­gard­ing claims of racial ger­ry­man­der­ing in the 3rd District, Niemeyer wrote about how the map “be­gins in Pikesville, a north­west sub­urb of Bal­ti­more City; leaks east­ward to cap­ture the north­east suburbs of Bal­ti­more City; then drops down into Bal­ti­more City, tak­ing a slice of the City on its way to Mont­gomery County, a north­west sub­urb of Wash­ing­ton, D.C.; then veers east­ward in a ser­pen­tine man­ner to in­clude An­napo­lis, a city on the Ch­e­sa­peake Bay.”

“In form, the orig­i­nal Mas­sachusetts Ger­ry­man­der looks tame by com­par­i­son, as this is more rem­i­nis­cent of a bro­ken-winged ptero­dactyl, ly­ing pros­trate across the cen­ter of the State,” Niemeyer wrote of the 3rd District in 2011.

The judge noted those pre­vi­ous com­ments in his opin­ion re­gard­ing the 6th District.

The Rem­edy

Ho­gan’s ex­ec­u­tive or­der es­tab­lishes a com­mis­sion com­pris­ing the fol­low­ing ap­pointees by the gover­nor: one reg­is­tered Demo­crat, one Repub­li­can and one per­son not reg­is­tered with ei­ther of the ma­jor par­ties. The com­mis­sion also would in­clude an­other six mem­bers se­lected from a pub­lic ap­pli­ca­tion process: two Democrats, two Repub­li­cans and two more un­af­fil­i­ated mem­bers.

The mem­bers can­not be con­gress­men or can­di­dates. They can­not be em­ployed by a po­lit­i­cal party or com­mit­tee. They may not serve on the staff of the gover­nor, the Gen­eral Assem­bly or Congress. Cur­rent and for­mer lob­by­ists also will not be con­sid­ered.

“The se­lec­tion of mem­bers shall be in­tended to pro­duce a Com­mis­sion that is in­de­pen­dent from leg­isla­tive in­flu­ence and rea­son­ably rep­re­sen­ta­tive of the State’s di­ver­sity and ge­og­ra­phy,” the ex­ec­u­tive or­der states.

Ac­cord­ing to Mon­day’s re­lease, Ho­gan also plans to in­tro­duce a re­dis­trict­ing re­form act when the next 90-day Gen­eral Assem­bly ses­sion opens in Jan­uary. This will be the fourth time he has sub­mit­ted the bill, which state leg­is­la­tors did not bring to a vote in his pre­vi­ous three at­tempts, the re­lease states.

“The peo­ple of Mary­land and the fed­eral courts agree that the time for our state to act is now to fi­nally re­store bal­ance and fair­ness to our elec­tions, to once and for all re­move the pol­i­tics and the politi­cians from the process of draw­ing their own dis­tricts,” Ho­gan said Mon­day. “This leg­is­la­tion pro­vides for a non­par­ti­san re­dis­trict­ing com­mis­sion and the re­sult will be a fair, non­par­ti­san, open, and trans­par­ent re­dis­trict­ing process for all leg­isla­tive and con­gres­sional dis­tricts.”

Niemeyer’s opin­ion dis­cusses how Mary­land has stated laws for re­dis­trict­ing its Gen­eral Assem­bly leg­isla­tive dis­tricts, re­quir­ing that they “con­sist of ad­join­ing ter­ri­tory, be com­pact in form, and of sub­stan­tially equal pop­u­la­tion,” with ad­di­tional con­sid­er­a­tion given to “nat­u­ral bound­aries and the bound­aries of po­lit­i­cal sub­di­vi­sions,” such as county and mu­nic­i­pal lines.

Niemeyer wrote that in the ab­sence of a law reg­u­lat­ing con­gres­sional re­dis­trict­ing, the state gen­er­ally fol­lows the pro­ce­dures for the Gen­eral Assem­bly leg­isla­tive dis­tricts. He wrote that while those pro­ce­dures were used fol­low­ing the 2010 Cen­sus, the process did not in­clude con­sid­er­a­tions for “con­ti­gu­ity, com­pact­ness, re­gard for nat­u­ral bound­aries, and re­gard for bound­aries of po­lit­i­cal sub­di­vi­sions.”

Three years ago, Ho­gan is­sued an or­der es­tab­lish­ing a Re­dis­trict­ing Re­form Com­mis­sion to com­plete a “com­pre­hen­sive ex­am­i­na­tion of ideas that could en­hance the in­tegrity of Mary­land’s con­gres­sional and leg­isla­tive re­dis­trict­ing pro­cesses” and to rec­om­mend a con­sti­tu­tional amend­ment on re­dis­trict­ing.

U.S. District Court Judge Alexan­der Wil­liams; Wal­ter Ol­son, a se­nior fel­low at the CATO In­sti­tute’s Cen­ter for Con­sti­tu­tional Stud­ies; and League of Women Vot­ers ad­min­is­tra­tor Ash­ley Ole­son served as the co-chairs of the the Re­dis­trict­ing Re­form Com­mis­sion.

On Mon­day, Ho­gan an­nounced their ap­point­ments as co-chairs of the new Emer­gency Com­mis­sion on Sixth Con­gres­sional District Ger­ry­man­der­ing, with Wil­liams as the Demo­crat, Ol­son the Repub­li­can and Ole­son as the un­af­fil­i­ated mem­ber.

Those in­ter­ested in ap­ply­ing for the open seats on the com­mis­sion are en­cour­aged to visit gover­nor. mary­land.gov/free-and-fair.

An Ap­peal

Mary­land’s At­tor­ney Gen­eral Brian Frosh filed an ap­peal Nov. 15 on be­half of de­fen­dants Linda H. La­mone, the state ad­min­is­tra­tor of the Mary­land State Board of Elec- tions, and Bal­ti­more at­tor­ney and state elec­tions board mem­ber David J. McManus Jr. They seek to have the case heard by the U.S. Supreme Court.

Frosh also filed a mo­tion to stay the in­junc­tions.

“A stay of this mat­ter pend­ing the de­fen­dants’ ap­peal to the Supreme Court is war­ranted to avoid po­ten­tially con­tra­dic­tory re­sults or need­less ex­pen­di­ture of pub­lic re­sources,” the mo­tion from Frosh’s of­fice states.

Mon­day’s re­lease from Ho­gan’s of­fice notes Frosh’s ap­peal, stat­ing that it comes “de­spite pub­lic opin­ion sur­veys show­ing that the vast ma­jor­ity of Mary­lan­ders sup­port non­par­ti­san re­dis­trict­ing re­form.”

The re­lease from the gover­nor’s of­fice states that Colorado, Michi­gan, Mis­souri and Utah vot­ers ap­proved bal­lot mea­sures this month call­ing for non­par­ti­san re­dis­trict­ing com­mis­sions.

“Mary­land should be lead­ing, but so far we aren’t even fol­low­ing,” Ho­gan said. “The fight for fair­ness, trans­parency, and bi­par­ti­san­ship in our state is not just a typ­i­cal fight be­tween the right and the left — it’s more im­por­tant than that — it is a fight be­tween right and wrong, and it is a fight worth fight­ing.”

In his mo­tion, Frosh wrote that the Supreme Court is ex­pected to ad­dress ger­ry­man­der­ing dur­ing the cur­rent term.

“Any fur­ther guid­ance from the Supreme Court will be im­por­tant to en­sure that, even if this Court’s or­der is af­firmed, state law­mak­ers do not re­draw Mary­land’s elec­toral map for 2020 us­ing a stan­dard that is not the one ul­ti­mately adopted by the Supreme Court. More­over, this Court’s or­der may be re­versed, ei­ther be­cause the Supreme Court finds par­ti­san ger­ry­man­der­ing to be non­jus­ti­cia­ble or be­cause the Supreme Court ap­proves a dif­fer­ent test for par­ti­san ger­ry­man­der­ing claims, which Mary­land’s map may or may not sat­isfy,” Frosh wrote.

Frosh wrote that the dead­line to have a new map in hand for the 2020 elec­tion is Oct. 19, 2019, while the Supreme Court’s cur­rent term ends June 24, 2019.

“If the Supreme Court af­firms this Court’s fi­nal judg­ment, upon is­suance of the Supreme Court’s de­ci­sion, de­fen­dants agree to be­gin im­me­di­ately draft­ing a new map and si­mul­ta­ne­ously to ne­go­ti­ate in good faith with plain­tiffs to reach a mu­tu­ally agreed re­vised sched­ule for ar­riv­ing at a new map, in the same form as the pro­ce­dure es­tab­lished by the Court’s fi­nal judg­ment,” Frosh wrote.

CON­TRIB­UTED PHOTO

Gov. Larry Ho­gan is­sued an ex­ec­u­tive or­der Mon­day to es­tab­lish a com­mis­sion to re­draw Mary­land’s 6th Con­gres­sional District.

PRE­PARED BY MARY­LAND DE­PART­MENT OF PLAN­NING/STATE DATA CEN­TER, RE­DIS­TRICT­ING, AU­GUST 2016

This map from the Mary­land De­part­ment of Plan­ning shows how the state’s con­gres­sional dis­tricts were drawn fol­low­ing the 2010 U.S. Cen­sus. A judge has ruled that the 6th District, com­pris­ing western Mary­land, must be re­drawn in ad­vance of the 2020 elec­tion.

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