Redistricting Poker

During his 2014 campaign, Larry Hogan promised, among other things, an effort to reform Maryland’s redistricting process. Yesterday, Hogan made good on that promise, appointing seven members of an 11 member panel to consider changes not only to Maryland law but to the state Constitution as well.

Maryland Gov. Larry Hogan on Thursday waded into the heated national debate over how to draw congressional boundaries — appointing a commission to explore ways to strip that power from elected leaders, even as the Democrats who control the state legislature vowed to resist.

Hogan (R) said he was creating an 11-member panel to recommend a new process for determining the lines of the state’s eight congressional seats. All but one are held by Democrats, thanks in part to boundaries drawn after the 2010 Census that diluted the power of some conservative-leaning counties by dividing them into multiple congressional districts.

Hogan acknowledged that the ma­nipu­la­tion of boundaries — also known as gerrymandering — is not particular to either major political party. He encouraged Democrats and Republicans in other states and at the federal level to take steps to make redistricting more fair.

“Republicans are not always the victims, and Democrats are not always the afflictors,” he said. “There are states across the country where Republicans are just as guilty of the same type of gerrymandering that we have here in Maryland.”

Reaction of the state Democratic Party and its two General Assembly leaders was decidedly negative.

Leading Democrats said they were loath to change Maryland’s redistricting procedures unless other states did the same. Currently, both the governor and the state legislature play a role in drawing Maryland’s congressional districts.“I think the vast majority of us would like to see something take place on the federal level, where all the states would be playing on a level playing field,” said House Speaker Michael E. Busch (D-Anne Arundel).

Noting that redrawn districts could jeopardize the seats of several of Maryland’s Democratic members of Congress, state Senate President Thomas V. Mike Miller Jr. (D-Calvert) said the legislature would be more likely to pass a resolution asking Congress to approve a national redistricting law.

This is most politely referred to as a punt. The likelihood of a national law on gerrymandering is zero. I’ll come back in a minute to why Busch and Miller oppose any change in the law, and why I think they’re being reckless and shortsighted in doing so.

Miller was even more recalcitrant in his comments to the Baltimore Sun.

Miller said he was not sure he would take up the governor’s offer to appoint a commission member, saying the panel’s conclusions may be “preordained.”

“If it’s being preordained, I’ll simply appoint another Republican member of the commission,” he said.

The new executive director of the state Party echoed Busch and Miller’s comments. Back to the Post:

But the head of Maryland’s Democratic Party accused Hogan of “dabbling in national politics instead of focusing on issues that impact middle-class families.”

“Republicans drew the lines in eight of the nation’s 10 most gerrymandered districts,” said Pat Murray, executive director of the state Democratic Party. “If Governor Hogan is serious about redistricting reform, he should ask his allies at the [Republican National Committee], the [Republican Governors Association], and on Capitol Hill to develop a national solution.”

Again, looking to nationalize the issue. This has become the standard talking point even of progressive Democratic elected officials who campaigned on redistricting reform. “Why should we change when Republicans keep doing this in other states?”

The policy position is bad, and so are the politics. For one thing, Maryland’s most recent congressional gerrymandering effort resulted in the pickup of ONE SEAT. Much of the extreme nature of the outcome in the process wasn’t partisan, but was designed to help – or hurt – particular representatives. John Sarbanes’ district was spread all over the state, so the gossip went, to give him a leg up for a statewide race. (Boy, that didn’t work out) Chris Van Hollen was given a broad swath of hard-core GOP territory all the way up to Pennsylvania to make his district more of a chore to represent. And Donna Edwards was stripped of her Montgomery County voters – including moi – who had been her activist base since 2006, because she spoke out against the plan in 2011.

These actions weren’t about electing another Democrat , they were about exerting power. The power of the Speaker and the Senate President. They like that power, and they want to keep it. And woe unto the Democratic delegate or senator who speaks against such power. But it’s all over one congressional seat.

And it’s also about power over the state legislative maps too. Mike Miller wanted to push Jim Brochin out of the Senate in 2014, because Brochin was a pain in his ass, a conservative Democrat who fought with Miller on just about everything. So Miller drew a map that cut the guts out of Brochin’s Towson district and extended it all the way to the Pennsylvania border, loading it up with Republicans. Brochin sued (I represented him, we lost) then went to work meeting his new constituents. Miller supported Brochin’s primary opponent, Bob Ehrlich  supported his general election opponent, and Brochin crushed them both. But because of Miller’s animus towards Brochin, the entire electoral map of Baltimore County was shifted around, arguably to the detriment of the Party’s interests looking forward.

Similarly, several House subdistricts were created to protect favored incumbents. One of them was a two member subdistrict based around Annapolis to give Mike Busch more protection – he didn’t win by much in 2010. Other single member subs were to protect folks such as John Donoghue in Washington County, Kevin Kelly in Allegheny County, Norm Conway on the Eastern Shore, and John Bohanan in St. Mary’s County. All lost in 2014, and because they are single member districts they will be hard to take back in 2018. Even in a district drawn to maximize Democratic voters, Busch still got fewer votes than Republican Herb McMillan in 2014.

Is it worth it? No. The risk is that Hogan will push through a congressional redistricting plan that can survive a veto override vote. He can’t right now, but what will the House look like after 2018, especially if Hogan wins? They need seven pickups to eliminate the threat of a veto override. And remember, Republicans picked up two senate seats in 2014 despite having virtually no money for a concerted push on this front. With Hogan pushing for reelection, and Republicans energized for legislative pickups, there will be a lot of money in play in 2018. Could the GOP pick up the five Senate seats that would give them filibuster power in 2018? Sure, it’s possible – maybe not likely but certainly possible. John Astle won in District 30 by 1,177 votes over a guy who admitted to lying on his resume. Jim Mathias, a very popular politician, won by 1,353 votes over one of the most unlikeable delegates ever in District 38. Will Mathias run again? If he doesn’t, forget it, that seat is lost. Ron Young won by 614 votes against an opponent who spent less than $500 on his campaign in District 3. I can see competitive races in Districts 8, 12 and 42 as well, and maybe elsewhere. Five victories would be a tall order, but the risk is there. And once 2018 is over, there’s no deal to be made – either Hogan has the cards or he doesn’t. Any deal has to be made now.

Final thought – I’m sure Busch and Miller are thinking “well, worst case is we can still ram through our state legislative plan because Hogan can’t veto that.” True, but they’ve always had the ability to use the governor’s nominal control of the process to erode any dissension on the details of a legislative plan. In this scenario, on the other hand, they’d have to build their own plan from scratch, get support for that particular plan or be prepared to make changes, and then get it voted on within 45 days. That’s never had to happen before – what will the process look like? Will it be veiled in secrecy (yes, duh)? Is it possible – not necessarily probable, mind you – that it falls apart for Miller and Busch? Yes. Especially if they try too much to carry out the usual punishments and rewards, they may get a rank and file rebellion as a result, or the plan may get so contorted in the process of negotiating it with so many individual actors that it runs afoul of constitutional restrictions. The Court of Appewls threw out large portions of the 2002 plan and ended up creating their own map. That could happen again in 2022.

It’s clear from the vehemence of the initial reaction from Miller and Busch that they’re banking on maintaining their power. Putting aside the principles involved (as if they matter, ultimately), I think this is a bad bet, based as it is on a wholesale reversal of the trend lines exposed in 2014. There’s a deal to be made here that would make congressional districts marginally more competitive, and might result in the loss of one seat. Maybe. And it would take away the power of the legislative leaders to dictate the state legislative boundaries. But it would eliminate the downside risk of Hogan being reelected and with enough legislative gains to redraw both congressional and legislative lines to the extreme detriment of the current legislative hammerlock that Democrats have in the state House and Senate.

I don’t think the risk is remotely worth the reward, but it’s not my power we’re talking about. It’s Mike Miller and Mike Busch’s power, and they’re the ones making the decisions and the assumptions underlying them. I certainly hope their confident assumptions come true, but if they don’t, we can look back to today and say “why the hell didn’t they take the deal?”

Independent Redistricting Upheld

Not as good a day at the Supreme Court today as Friday (only one out of three decisions went the right way), but the one was very significant. In a moderately surprising development, Justice Anthony Kennedy again sided with the four liberal justices to uphold Arizona’s independent redistricting commission.

The commission was originally adopted by state voters via the initiative process in 2000, specifically to address partisan gerrymandering in the redistricting process. In 2012, following the commission’s redistricting plan for both congressional and state legislative districts, the state legislature sued, claiming that by stripping the legislature of its redistricting prerogatives, the voters of Arizona ran afoul of the Elections Clause of the Constitution, which states that:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Con­ gress may at any time by Law make or alter such Regulations . . . . Art. I, §4, cl. 1.

The Supreme Court today, in a 5-4 decision, opinion by the Notorious RBG, held that the creation by the voters of an independent commission to create congressional districts did not violate the above constitutional provision.

The people of Arizona turned to the initiative to curb the practice of gerrymandering and, thereby, to ensure that Members of Congress would have “an habitual recollection of their dependence on the people.” The Federalist No. 57, at 350 (J. Madison). In so acting, Arizona voters sought to restore “the core principle of republican government,” namely, “that the voters should choose their representa­ tives, not the other way around.” Berman, Managing Gerrymandering, 83 Texas L. Rev. 781 (2005). The Elec­ tions Clause does not hinder that endeavor.

Any state – even those, like Maryland, that do not have the power of initiative, and thus require affirmative legislative action – that seeks to create an independent or bipartisan redistricting commission, can now do so secure in the knowledge then it will not be subject to constitutional challenge.

In Maryland, it would take a constitutional amendment passed by the General Assembly and then approval by the voters. I’ve advocated for such a process for years. Today’s decision should be a spur to such efforts. Let’s see what if anything happens. 

Supreme Court Bombshell?

While we wait for the Supreme Court to decide the marriage equality cases – almost assuredly in favorable fashion at this point – the Court today unexpectedly accepted an election law case from Texas that could be explosive, and not in a good way. The issue is the now familiar principle of “one person one vote.” But who exactly qualifies as a “person”? The Court has never explicitly defined the term.

The court’s ruling, expected in 2016, could be immensely consequential. Should the court agree with the two Texas voters who brought the case, its ruling would shift political power from cities to rural areas, a move that would benefit Republicans.

The court has never resolved whether voting districts should have the same number of people, or the same number of eligible voters. Counting all people amplifies the voting power of places with large numbers of residents who cannot vote legally, including immigrants who are here legally but are not citizens, illegal immigrants, children and prisoners. Those places tend to be urban and to vote Democratic.

A ruling that districts must be based on equal numbers of voters would move political power away from cities, with their many immigrants and children, and toward older and more homogeneous rural areas.

It could also move political power in Maryland away from counties like Montgomery and Prince George’s.

In the 2012 MD redistricting, which used equal population, the average district population was around 124,000. I represented some challengers to the plan, just accept the number, as I couldn’t find a link. But it’s right. Really. But when we look at registered voters, the numbers fluctuate wildly. Just to use a random example  – District 20, where I just happen to live (what are the odds?) – we have 71,393 registered voters (all numbers as of 2014 primary), fewer then any MoCo jurisdiction. District 16, covering Bethesda, Chevy Chase and Potomac, has 91,658 registered voters, the highest in Montgomery County, with almost 30% more voters than D20.

Across the state, the disparities widen even further. District 27, a three county Prince George’s/Calvert/Charles jurisdiction, has 94,126 registered voters, the most in the state. At the other end of the spectrum, District 47, a two subdistrict Prince George’s  jurisdiction with a heavily Hispanic population, has only 49,941 registered voters. The disparity is 88.5%.

If the Supreme Court requires states to shift from population  to registered voters as the basis of “one person one vote,” it will be momentous. Even if the Court were to simply allow a different standard without requiring it, the redistricting fight in a geographically and demographically diverse state like Maryland would be brutal.

Keep an eye on this case. It’s potentially a very, very big deal.