The Washington Post Sunday


Partisan gerrymande­ring in Maryland is a problem, but the high court won’t be the solution.


Redistrict­ing used to be regarded with a yawn. But it has become a hot issue. Republican­s in 2000 successful­ly reconfigur­ed state legislativ­e and congressio­nal districts to ensure their dominance in several states and Congress. One notable exception was Maryland, a Democratic stronghold.

Now, the focus is on persuading states to transfer state and congressio­nal districtin­g to nonpartisa­n commission­s. Some states have had them for some time, and Colorado, Michigan and Missouri just joined them. Maryland Gov. Larry Hogan (R) has promoted one for Maryland, and now former Maryland governor Martin O’Malley (D) supports the concept, too.

A three-judge federal panel ruled after the midterm elections that the Maryland General Assembly in 2011 deliberate­ly redrew the state’s congressio­nal lines to remove longtime Republican Roscoe Bartlett. A year later, Democrat John Delaney won the seat. Writing for the court, Circuit Judge Paul V. Niemeyer quoted O’Malley as admitting in his signed deposition that we “set out to draw the borders in a way that was favorable to the Democratic party.”

Maryland Attorney General Brian E. Frosh (D) has appealed the ruling to the Supreme Court. The Supreme Court extended to June the deadline for redrawing the map; if the state does not, the court will appoint a nonpartisa­n commission.

But Frosh’s success is unlikely, and here is why.

Last year, the Supreme Court dodged two cases dealing with partisan gerrymande­ring: one from Maryland, the one Niemeyer just ruled on; and one from Wisconsin, where Republican­s have long prevailed in the state legislatur­e. The court returned these cases to the lower courts for additional argument.

Unlike racial gerrymande­ring, when states create districts deliberate­ly to undermine the voting power of minorities, especially African Americans, partisan gerrymande­ring is a quintessen­tially political process. As Justice Antonin Scalia wrote in a 2004 decision, “Political gerrymande­rs are not new to the American scene . . . . In 1812, of course, there occurred the notoriousl­y outrageous political districtin­g in Massachuse­tts that gave the gerrymande­r its name — an amalgam of the names of Massachuse­tts Governor Elbridge Gerry and the creature (‘salamander’) which the outline of an election district he was credited with forming was thought to resemble.”

For Scalia, no appropriat­e judicial standard authorized the court to prevent this quintessen­tially political practice. This often leads to bizarreloo­king legislativ­e districts, including my own, Maryland’s 3rd Congressio­nal District. A federal judge described it as “reminiscen­t of a broken-wing pterodacty­l, lying prostrate across the state.”

Justice Anthony M. Kennedy wrote in a Pennsylvan­ia case that “the challenge in finding a manageable standard for assessing burdens on representa­tional rights has long been recognized.” He thought the court would eventually come up with one.

Niemeyer thinks he found one: “We . . . conclude that the plaintiffs have sufficient­ly demonstrat­ed that Maryland’s 2011 redistrict­ing law violates the First Amendment by burdening both the plaintiffs’ representa­tional rights and associatio­nal rights based on their party affiliatio­n and voting history.” In other words, his standard is based on the First Amendment’s guarantee of freedom of assembly, which the court has broadened into a general right of associatio­n. In the Wisconsin case that the court sent back this year, Democrats claimed they could not associate with each other; registered Republican­s won 48.9 percent of the statewide vote, but the Republican Party controlled 63 of 99 seats through gerrymande­ring.

But Niemeyer’s opinion begs the question.

Back in 1962, Justice Felix Frankfurte­r commented, “What, then, is this question of legislativ­e apportionm­ent? Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representa­tives to the state councils. Their complaint is simply that the representa­tives are not sufficient­ly numerous or powerful . . . . What is actually asked of the Court in this case is to choose among competing bases of representa­tion — ultimately, really, among competing theories of political philosophy — in order to establish an appropriat­e frame of government.”

In other words, voters do indeed associate with one another, even from the same political party; they are just not “sufficient­ly numerous or powerful.” Perhaps independen­t, nonpartisa­n commission­s are the solution; surely the Supreme Court is not. The writer teaches constituti­onal law and politics at Maryland’s Towson University.

 ?? KATE PATTERSON FOR THE WASHINGTON POST ?? A T-shirt shows Maryland’s disjointed 3rd Congressio­nal District.
KATE PATTERSON FOR THE WASHINGTON POST A T-shirt shows Maryland’s disjointed 3rd Congressio­nal District.

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