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