It will take a con-con to untangle Maryland’s gerrymanders
By J.H. Snider,
The U.S. Constitution mandates that states redraw their political districts every decade, based on the latest population census data. Maryland’s General Assembly is currently considering new districts for itself.
Maryland’s redistricting process allows incumbent legislators to choose their own and their competitors’ voters for the coming decade. The resulting anti-democratic districts are called gerrymanders, which have two basic flavors: partisan and pro-incumbent.
In a partisan gerrymander, districts are drawn to favor the dominant political party. For example, Maryland’s recently approved congressional districts were drawn so that the Republican Party would be dominant in only 12.5 percent of the congressional seats despite routinely polling more than 40 percent of the vote.
In a pro-incumbent gerrymander, districts are drawn to favor sitting legislators. Maryland’s proposed General Assembly districts have been drawn to give most members of both parties safe seats in the general election. Many will run unopposed or face only nominal opposition.
Of course, the incumbents who control redistricting routinely profess that the districts are drawn to enhance, rather than harm, democratic values. Although everyone knows these claims are a farce, it plays out this way decade after decade because incumbents benefit from the status quo and voters have no practical recourse for bringing about change.
One common recommendation to fix the problem is to create a bipartisan redistricting commission. But creating such a commission isn’t politically viable in Maryland, where one party dominates the government and no ballot initiative exists.
Another often-heard idea is to empower judges to draw the districts. But judges lack the power of the purse or sword to enforce their rulings, often depend for their appointments and perks on the good will of incumbent legislators and know that they are popularly perceived to be the least democratic branch of government. Hence, except for the most egregious gerrymandering cases, they defer to the political branches. As U.S. District Court Judge Roger W. Titus wrote in a recent redistricting case, it “is clear that the plan adopted by the General Assembly of Maryland is, by any reasonable standard, a blatant political gerrymander.” Nevertheless, he approved the plan.
My preferred solution is the redistricting jury. With a redistricting jury, judges don’t choose a plan. Instead, they convene a jury to pick from among submitted plans based on democratic criteria such as compactness, contiguity and equal population. To enhance its democratic legitimacy, the jury is randomly selected and unusually large. Until recent technological advances, redistricting juries weren’t practical. Drawing district maps used to require experts, cost hundreds of thousands of dollars and required months of work. Now a fifth-grader connected to the Internet can draw comparable maps with a few clicks of a mouse. This means that a redistricting jury would be able to choose from among many high-quality submitted maps.
However, given the long-standing and inevitable opposition of Maryland’s incumbent legislators to meaningful redistricting reform, the only politically plausible way to implement such reform is via a state constitutional convention. The good news is that Maryland’s Constitution mandates that citizens be asked every 20 years whether they want to convene such a con-con. In 2010, when the question was last on the ballot, 54.4 percent of those voting on the question voted yes. Not a single member of the General Assembly publicly supported a yes vote. The bad news is that, relying on a self-serving and, I believe, illegal interpretation of Maryland’s Constitution, the governor and General Assembly refused to convene the approved convention, despite their oath of office to uphold the Constitution.
With the need for redistricting and other democracy-enhancing reforms in mind, reformers should support pressuring and suing the governor and General Assembly to convene the con-con that Maryland voters approved.
The writer is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics.
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