MD Redistricting Case Update

The Maryland redistricting case was heard in the Supreme Court yesterday. While Post reporter Robert Barnes’ article provides a good insight into the oral argument, he makes an inexplicable error that I really hope is not based on what’s in the court file.

Although about 40 percent of Maryland’s voters are Republicans, the state’s Democratic leadership drew its eight congressional districts to make seven safe for Democrats.

Wait, what? Um, actually, no. For the period between 2000 and September 2015, Republican registrations as a share of active registrations drifted downward from 30% to 25%. At no time were they anywhere near 40%. If I added in inactive voters, I suspect it’d be a good bit less. Can I get Glenn Kessler in here for a cleanup, please?

In any event, we’ll keep an eye on the case as a whole and see what happens.

Maryland Redistricting In The Supreme Court

A Maryland redistricting case that avoided significant notice when it was filed in 2013 – we lawyers never pay attention to cases filed by non-lawyers – is set for oral argument before the U.S. Supreme Court this fall, opening up the prospect of a new line of challenges to political gerrymandering efforts not only here in Maryland but across the country. Contrary to the arguments made by Maryland legislative leaders in defending their indefensible 2011 redistricting plan, this case, if successful, will advance both the principle of fairer districts and the political interests of the Democratic Party nationally. A win win situation.

John Fritze of the Sun reports:

A little-noticed lawsuit brought by a Maryland man challenging the state’s contorted congressional districts will be heard this fall by the Supreme Court — where it has the potential to open a new line of constitutional attack for opponents of gerrymandering.

Stephen M. Shapiro, a former federal worker from Bethesda, argues that the political map drawn by state Democrats after the 2010 census violated the First Amendment rights of Republicans by placing them in districts in which they were in the minority, marginalizing them based solely on their political views.

The issue before the Supreme Court is whether a lower court judge had the authority to dismiss the suit before it was heard by a three-judge panel. But Shapiro hopes the justices will also take an interest in his underlying claim.

A little background. In 2004, the Supreme Court held that challenges to Pennsylvania’s redistricting – in which Republicans ended up holding 14 out of 19 congressional seats despite Democrats being a plurality of state voters – could not be challenged as being too partisan. Four justices held that the issue was “nonjusticiable,” that courts should not even intervene in political gerrymandering, because no neutral rule could be decided to apply to such cases using the usual measuring stick of equal protection. One Justice – yes, you guessed it, that attention hog, Anthony Kennedy, AGAIN – wrote that while he agreed that the PA case should be dismissed, he believed that future cases might result in the development of neutral rules could be developed under the First Amendment rather than the 14th Amendment’s Equal Protection clause. Kennedy wrote in 2004:

Where it is alleged that a gerrymander had the purpose and effect of imposing burdens on a disfavored party and its voters, the First Amendment may offer a sounder and more prudential basis for intervention than does the Equal Protection Clause.

This is precisely the argument being made in the Maryland case. The fact that the case was accepted for review by the Supreme Court – which requires four votes to grant review – suggests that either Kennedy agreed to accept the case or that the four liberal justices – Breyer, Ginsburg, Kagan and Sotomayor – believe they can convince Kennedy that the time has come to revisit the First Amendment issue in the context of political gerrymandering. The consequences of this case – both for Maryland and for the country – could be enormous, and in a hugely positive and principled way.

UPDATE: Here’s the brief submitted to the Supreme Court last month by the Petitioners. The brief of the Maryland elections officials in response has not been filed, and oral argument has yet to be scheduled. I intend to be present when the case is argued.

Josh Kurtz On Redistricting

With all the Senate race and John Delaney hullabaloo this week, and me being out of town, I missed Josh Kurtz’s return from vacation Monday.

I’ve always said that Josh Kurtz guy was brilliant. Brilliant, I tell you. Read every word. He speaks the truth with a capital T. Here’s some of the religion he’s peddling.

So it’s easy for the Democrats to question Hogan’s motives as he tees up redistricting reform. It’s also fair to say that they’ll have a lot of sway over the fate of any proposal Hogan advances, given their advantages in the state House and Senate.

But you know what? Democrats ought to go along this time – because it’s the right thing to do. What a concept. And they’ll have a better chance of shaping whatever redistricting proposal emerges – or killing it, if it’s not credible – if they participate in Hogan’s commission.

Even the most partisan Maryland Democrat can’t help but look at the state’s congressional map and feel a little embarrassed – about the dreadful 3rd district, designed to allow Rep. John Sarbanes (D) to touch lots of fertile Democratic territory; about the way districts radiate out of Baltimore even though the city is losing population relative to the rest of the state; about the way Anne Arundel County has been carved up and has no Republican representation (ironically, the 6th district, which the Democrats redrew to pick up one more seat in 2012, is not the state’s most egregious – and has historical antecedents).

Democrats are so used to getting their way in Maryland that they’re reflexively opposed to anything that diminishes their power even in a little, even if it’s in the name of justice and democracy. But here is an opportunity for them to embrace reform – and share in the glow of any results that make our elections fairer and more competitive.

Preach, brother Kurtz. And let us all say “amen.”

Redistricting Reactions

The reaction to Larry Hogan’s creation of a commission to study redistricting has met with some interesting reactions. As I noted last week, both House Speaker Mike Busch and Senate President Mike Miller rejected the idea out of hand, not surprisingly as it would be their personal power to dictate the details of at least portions – if not all – of any future redistricting plan that would be at risk.

Over the weekend, reactions came from Senate candidates Donna Edwards and Chris Van Hollen, in ways that highlight the different strengths of the two candidates. Van Hollen, a one term delegate and a two term senator before being elected to Congress in 2002, echoed the sentiments of Busch and Miller.

“I trust you will agree that it makes more sense to have one set of nonpartisan rules for the entire country rather than a state-by-state approach that can be used to disadvantage one party over the other at the national level,” Van Hollen wrote to Hogan, who on Thursday created a commission to study the redistricting process in Maryland.

The Montgomery County Democrat said he is “open to reviewing” Hogan’s proposal, but indicated in a separate letter to House Speaker John Boehner that he supports a national, rather than state-by-state, approach.

Edwards, who’s never served in Annapolis, took a slightly more conciliatory approach to Hogan’s proposal.

Van Hollen’s letters on the issue came shortly after his opponent in the Senate race, Rep. Donna F. Edwards of Prince George’s County, seemed to offer a subtly more supportive statement — though she also did not endorse Hogan’s efforts. Edwards said she will review the proposal to determine whether it would truly be independent of partisan politics.

“I have long supported redistricting reforms to end the damage partisan gerrymandering does to our democracy,” Edwards said. “As we commemorate the 50th anniversary of the Voting Rights Act this week, we should denounce a process that far too often places political interests over ensuring that all Americans have fair representation.”

John Fritze of the Sun very interestingly compared the current reactions of Edwards and Van Hollen to their reactions to the 2011 redistricting and the way they were treated – by the two guys now taking a maximalist rejectionary approach to Hogan’s reform concept.

The reactions from Van Hollen and Edwards are particularly interesting because of how differently the two Democrats approached the 2011 redistricting. In a way, their dissimilar styles during that year’s special legislative session presaged themes of their Senate campaigns.

Edwards, who casts herself as independent of the party structure, was vocally opposed to the plan — largely because her 4th District lost territory in Montgomery County. She proposed her own map, testified against the proposal submitted by Gov. Martin O’Malley and tried to rally the Legislative Black Caucus to oppose it.
Van Hollen, who has touted his “effectiveness” and ability to build coalitions, met privately with O’Malley in Annapolis and rarely discussed his thoughts on the early drafts of the map. Van Hollen, who represents the 8th District, also lost portions of his base in Montgomery County and picked up GOP territory in Carroll County.

Let’s boil this down. Edwards objected loudly and publicly, and she got treated worse by Miller, Busch and O’Malley for having done so, being stripped of all her Montgomery County turf and getting a big chunk of conservative areas of Anne Arundel County added to her district.  Van Hollen, on the other hand, got screwed in the initial plan, had quiet meetings with the state leaders, and ended up doing a little bit better when O’Malley tweaked the original maps in the final plan.

As a matter of individual effectiveness, Van Hollen accomplished more than Edwards did. But the blatant use of the redistricting power to bully not just state but federal elected officials, with no apparent regard whatsoever for voters or for the democratic process, is never going to end without the kind of advocacy on a wider scale that Donna Edwards employed in 2011. Whispered, quiet meetings beseeching those in power for a crumb here or a map tweak there only enhance the power, and do nothing to curb or end it. So on this issue, I’m with the Donna Edwards approach. Speak truth to power, especially when it is being abused as patently as it is, and has been, for many years.

Two final notes: first, not just this article, but a number of others, make the mistake of calling Hogan’s creation of a commission a “plan.” This is wrong. There is no preordained specific proposal that the commission will create, just a search for good ideas. Which makes the Miller/Busch flat refusal that much more telling – they don’t want a change to the current plan because it works very well for them, thank you very much. They could participate in the commission process and advocate for a continued role for the two presiding officers. But clearly, they don’t want to do even this much to defend the propriety of their involvement. So they’d just as soon shut it down before it even starts. Apparently, even discussing the process is dangerous to the status quo.

Second, the call for national redistricting reform is both cynical and assumes basic ignorance of what’s going on around the country. There’s no chance for a federal independent redistricting law. Zero. And hot tip here, folks: 21 states already have some form of independent redistricting for either congressional or state redistricting, or both. These include traditional GOP states like Alaska, Arizona, Arkansas, Idaho, Mississippi, Montana, Missouri, Ohio, Oklahoma and Texas. So Maryland wouldn’t be breaking new ground by taking the redistricting process out of the hands of the legislature – unless you’re the Speaker of the House or the Senate President. Which is what we’re seeing now, five years before the next census. I’ve already written about how it’s a bad bet, regardless of the policy. And now we see that the policy stinks, so much so that states around the country are changing. Even this Supreme Court, authors of Citizens United and other horror stories of campaign finance and election law, blessed the Arizona redistricting arrangement last month.

Keep all this in mind when you hear Messrs. Busch and Miller declaim against even the idea of a STUDY of redistricting reform. And listen also to the total silence from elected officials who are always ready to discuss election law or campaign finance reform. Not on this, they will stay silent and avert their eyes. I’m not knocking them, mind you – they’re scared to speak up, and with good reason – they could be redistricted out of a job come the 2022 election. But someone has to speak up or this retrograde system will continue, while other states move forward. We in Maryland like to pride ourselves on being reformers and innovators. Not in this case.

End Gerrymandering?

I’ve written about this before. Maryland’s map drawing exercise in 2011 was as bad if not worse than any in the country. Ask John Sarbanes if you live on his CD3 and he most likely has to look it up. The district narrows at many points to a few blocks, weaving and bobbing its way around the state, stumbling from Towson to Burtonsville and over to Annapolis, taking in bits and pieces of communities as it goes.

All for one additional D seat in the US House. It was earmarked for Rob Garagiola in 2012, but as we know that went badly and John Delaney won the seat.

Democratic Party leaders say it was necessary to counteract GOP atrocities in other states like North Carolina and Pennsylvania. But they’re almost never quoted by name.

Democrats in Maryland have explained their reluctance to reform the system here by pointing to such states as North Carolina and Pennsylvania where Republicans have ensured lopsided House delegations of their party. Since Republicans control more states than Democrats, nationally the practice has solidified GOP control of the House. That has led to such ironies as O’Malley, now a Democratic presidential candidate, calling for an end to gerrymandering in an appearance on MSNBC this week.

Unspoken in the article is the risk that we run by not reforming now that Larry Hogan will control redistricting in 2020. Then we might be looking not at a 7-1 alignment but 5-3 or maybe even 4-4. 

Holding on stubbornly to the current arrangement is not just bad policy, it’s bad politics. The time to change the process and adopt some kind of bipartisan or independent redistricting is now.

Andrews on Gerrymandering

I share former Councilmember Phil Andrews’ goals on redistricting reform, open primaries and public financing, but it’s not going to happen any time soon. Too many legislators just don’t want to take the risk of bucking the system to advocate for a more open electoral process.

Reforming gerrymandering is imperative, but not sufficient alone to bring about truly representative legislative bodies. In addition to eliminating gerrymandering, public financing of campaigns (used by Governor Hogan, but not available to state legislative candidates) to provide candidates with an alternative to big money from the wealthy and from PACs, and opening primaries to all voters comprise the trifecta of political reform that would produce a far more representative Congress and state legislature.

But it should happen, and it should happen now, because both parties in Maryland have a great deal at risk in the governor’s race in 2018. If the Democrats win back the position, GOP gains will likely be lost in the next map drawing exercise. If Larry Hogan is reelected, the carnage for Democratic incumbents in places like Anne Arundel County and elsewhere will be immense, conceivably threatening a functional if not actual Democratic House majority in 2022.
There’s a right-left axis of legislators that should come together to make this happen, but my sense is that it won’t happen because both sides see the prospect of ultimate victory following the 2018 election. The time for compromise – an independent redistricting process – is now, right now, before we get past 2016 and the battle lines are drawn for 2018. I still don’t think it will happen, but it should.