Maryland Republicans seeking to throw out the state’s congressional map before the state’s rescheduled primary elections in July will argue in a trial this week that Democrats in the General Assembly drew an illegally gerrymandered map to maximize partisan gain.
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The bench trial over Maryland’s new congressional map — passed on a party-line vote in the General Assembly in December — kicked off Tuesday in Anne Arundel County Circuit Court, where the state is defending against claims from two Republican lawsuits that the map violates Maryland’s constitution.
Separately on Tuesday, the Maryland Court of Appeals — which is hearing challenges to Maryland’s legislative redistricting map affecting state lawmakers — moved the state’s June 28 primary elections to July 19 as the litigation continues.
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The outcome of the trial over Maryland’s congressional map is likely to set the bar for future redistricting legal challenges in a state that has a history of drawing congressional districts to strongly favor Democrats. Whatever the result, the challenge is probably headed for the Maryland Court of Appeals.
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The two cases were brought by Fair Maps Maryland, an anti-gerrymandering group aligned with Gov. Larry Hogan (R); right-wing activist group Judicial Watch; and Republican voters and state lawmakers, including Del. Neil C. Parrott (R-Washington), a congressional candidate in Maryland’s 6th District. The cases, which are being heard together, are Szeliga v. Lamone and Parrott v. Lamone.
“We are cautiously optimistic that the good guys will prevail,” said Doug Mayer, spokesman for Fair Maps Maryland. “Gerrymandering is a stain on this state, and on this country, and it’s one of the main reasons Washington, D.C., is increasingly filled with complete idiots, or worse. And that’s on both sides of the aisle.”
Congressional maps must be redrawn every 10 years after the decennial census to account for shifts in population. Maryland Democrats were under pressure to retain their partisan advantage in the congressional delegation because their party’s control of Congress hangs by a thread. Plus, Republicans are maximizing their own partisan advantages in red states — further raising the stakes of the outcome of the legal challenge to Maryland’s map and other similar challenges across the country.
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In Republican-controlled states including North Carolina and Pennsylvania, Democrats successfully challenged maps that favored the GOP on the grounds that they were unfair partisan gerrymanders, leading the states’ high courts to impose new maps. The U.S. Supreme Court let those maps stand — which Mayer found to be an encouraging sign for the Maryland challenge. Several other challenges are pending in both blue and red states.
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“I wouldn’t bet against the plaintiffs, that state courts have been, in fact, more aggressive than the Supreme Court rooting out partisan gerrymandering,” said Mark Graber, a professor at the University of Maryland School of Law.
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The map Maryland Democrats passed creates seven safe Democratic seats and one competitive seat anchored on the Eastern Shore, which puts the state’s lone congressional Republican, Rep. Andy Harris, in jeopardy. Only a single Democrat voted with Republicans against the map in December, and Democrats in the General Assembly overrode Hogan’s veto.
Republicans charged that Democrats drew convoluted district lines that do not respect communities of interest — the 3rd Congressional District, for example, traipses around the state from the D.C. suburbs in Montgomery County all the way to the Susquehanna River at the Pennsylvania border. Republicans also charged that Democrats reconfigured the state’s Eastern Shore-anchored 1st District to jump the Chesapeake Bay and absorb more Democratic voters in Anne Arundel County, in ultimate hopes of writing Harris off the map. Under these lines, President Biden would have won the 1st District by under 1 percentage point in 2020, giving Democrats an opening.
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Democrats have admitted to that behavior in the past. In the 2012 redistricting cycle, former governor Martin O’Malley (D) admitted in federal court that his party redrew the 6th District to make it easier to elect a Democrat there and to knock out the Republican incumbent. A Republican has not won in that district since the 2012 map was enacted.
The Maryland congressional map enacted ahead of the 2012 midterms led to some of the most high-profile gerrymandering challenges in the nation, going all the way to the U.S. Supreme Court. But in 2019, the high court said federal courts were not the proper avenues for partisan-gerrymandering claims, instead leaving it up to state courts.
That ruling paved the way for the matter set to be heard by Judge Lynne A. Battaglia in Anne Arundel County this week.
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In this case, Republicans contend that the congressional map violates the Maryland constitution’s protections for free elections and free speech, as well as its equal protection clause — arguing that Democratic lawmakers drew the map to intentionally dilute the voices of Republican voters at the ballot box.
But partisan gerrymandering in congressional maps is not explicitly banned in Maryland’s constitution, and the constitution’s rules for drawing state legislative districts — that they need to be compact, among other things — don’t extend to congressional districts. Those are among the reasons the Maryland Attorney General’s Office argues the Republican voters don’t have a case.
Citing past rulings from the Court of Appeals, the state has maintained that the redistricting process is inherently political and that the General Assembly is allowed to pursue political objectives, even protecting incumbents, if it chooses.
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“Partisan gerrymandering has been condemned as ‘incompatible with democratic principles’ … but this does not mean that the Maryland Constitution provides a mechanism for redressing grievances concerning congressional redistricting,” the state attorney general’s office wrote in its motion to dismiss. Battaglia allowed the case to proceed on all but one claim.
The state argued that partisan gerrymandering will remain legal on the congressional level until federal lawmakers pass legislation to ban it — which Republicans in Congress have fought against — or Maryland amends its constitution to forbid it.
In court Tuesday, however, Battaglia drew a distinction between partisan gerrymandering and “extreme” partisan gerrymandering. She acknowledged that some use of partisan information in drawing maps is “inevitable.” But the judge appeared open to exploring whether in Maryland’s case map drawers crossed a line.
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She asked the witness called by the plaintiffs, Sean Trende, an elections analyst at RealClearPolitics, if he believed the map the General Assembly passed would have “adverse effects” on Republicans, and if he believed Maryland’s partisan gerrymandering was “extreme.”
He said yes on both counts.
“It was plainly drawn with an intent to hurt the Republican Party’s chances of electing anyone in Congress,” said Trende, who most recently served as a special master tapped by the Virginia Supreme Court to redraw its congressional and legislative maps.
Trende said one clear pattern emerged in his analysis of the map: The map drawers “cracked” the strength of Republican voters by taking them out of redder districts and placing them in blue districts — where they are not likely to affect the outcome of an election.
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He said it is “extremely improbable” that, in a state where Republicans and Democrats are concentrated in certain regions, map drawers adhering to traditional redistricting criteria would come up with a map in which Biden won all eight districts — unless it were just a coincidence.
“It’s just too neat to tell that story,” Trende said. “The far more likely thing we would accept in social science given all this data is partisan considerations were dominant in drawing this map.”
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David Lublin, a professor at American University specializing in redistricting, said the fact that Democratic voters are dominant in Maryland could pose a challenge for plaintiffs who argue that the party has an unfair advantage in the map. Democrats make up just over half of the state’s registered voters, while Republicans make up about one-quarter of them.
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Still, Lublin said, “the state is going to have a hard time defending that it’s not a partisan gerrymander because the lines are so strange” — even considering the geography — and it may be more effective to simply argue that partisan gerrymandering is not illegal.
That leaves it up to Battaglia — and, ultimately, the Maryland Court of Appeals — to interpret whether the constitution’s broad protections for free elections and free speech extend to protect against “extreme” partisan gerrymandering, Lublin said.
“Other states have taken this on, and that may encourage the Court of Appeals to be more active in addressing this, particularly since Maryland’s congressional lines are so odd,” Lublin said.
Lawsuits over the legislative districts are expected to go to trial March 22.