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Maryland faces big battle over partisan gerrymandering

The redistricting after the 2020 Census will mark the first time in modern history that Maryland has redrawn its congressional maps under a divided government.

Early signs suggest a prolonged fight.

The reelection this month of Gov. Larry Hogan (R), an aggressive advocate for a nonpartisan redistricting commission, has heightened the standoff between the governor and Democrats who hold supermajorities in the General Assembly at a time when more states are moving to an independent redistricting process.

Maryland is one of three states accused of drawing congressional maps so contorted by partisan intent that judges have declared them illegal. The fate of its 6th District, which stretches from deep-blue parts of Montgomery County through the solid red of Western Maryland, will soon lie with the U.S. Supreme Court.

For these reasons, reform advocates say, Maryland is among a handful of states being watched nationally to see how leaders go about drawing the next round of congressional boundaries after the 2020 Census.

The Hogan administration plans to announce as soon as this week its plan on how to bring more transparency — and less partisanship — to the process. Aides, noting polls show strong support for a less politicized system, say the governor’s ideas go beyond the redistricting commission proposal that he has unsuccessfully pressed lawmakers to approve for the past three years.

“Now is the time,” Hogan spokeswoman Amelia Chasse said. “It’s very clear what the public wants.”

Democrats who have soured on the current system want the Supreme Court to issue guidance that curtails partisan gerrymandering nationwide, so that neither party can use map drawing to give themselves an advantage in Congress.

But Maryland’s legislative leaders have been tight-lipped about whether they will consider any changes if the Supreme Court does not take action that applies nationwide. It’s unclear whether the state’s dominant party will cave to pressure from Hogan and the public to relinquish control of partisan mapmaking in Maryland alone.

“There’s a better chance now than there has been in decades for there to be an end to gerrymandering,” said Del. Eric G. Luedtke (D-Montgomery), incoming chair of the House Democratic Caucus.

“People recognize that it’s a problem,” he said. “The debate is around how to solve it.”

Mapmaking to gain power

The congressional map that Maryland approved after the 2010 Census was pilloried from the start as one of the most gerrymandered in the nation, an unwieldy hodgepodge of boundaries drawn with questionable intent.

The most notorious district, the 3rd, has been likened to blood spatter, a Rorschach test a praying mantis and once, by a federal judge, as “reminiscent of a broken-winged pterodactyl, lying prostrate across the center of the state.”

The map was twice taken to court — once with accusations of extreme partisan gerrymandering and once because of alleged racial gerrymandering — and petitioned to referendum.

While the racial gerrymandering case was dismissed and voters upheld the map at the ballot box, the partisan case is now pending before the nation’s highest court. Its outcome, along with two cases involving Republican-led partisan gerrymandering in North Carolina and Wisconsin, could set new rules for mapmakers across the country.

Even if the court doesn’t offer guidance, some advocates for redistricting reform say the national scrutiny and threat of lawsuits could upend the way Maryland Democrats approach map drawing.

“Theoretically, they should indeed be humbled,” said Justin Levitt, a Loyola Law School professor and redistricting expert.

While there’s no universal test to measure partisan gerrymandering, analysts often look at how closely the popular vote aligns with representation. In this year’s midterms, Republican congressional candidates won 32.5 percent of Maryland’s popular vote but just one — 12.5 percent — of the state’s eight congressional seats.

The 6th District was the only one where the winner didn’t get more than 65 percent of vote.

Levitt called Maryland “the leading example” of extreme partisan gerrymandering executed by Democrats. But he also noted Republicans, who held sole control of mapmaking in almost twice as many states as Democrats after the 2010 Census, do it more often.

“When either party gets an advantage, they tend to overuse it,” Levitt said.

Democrats did ‘duty’ in Md. redistricting. Now the Supreme Court will evaluate.

In a deposition related to the 6th District lawsuit, former Maryland governor Martin O’Malley (D) called it his “duty” to counteract GOP gerrymandering efforts elsewhere when the state drew boundaries in 2011 that were designed to elect more Democrats.

The number of Republicans in the 6th District dropped from 47 percent of the electorate to 33 percent. Democrats gained influence, rising from 36 percent to 44 percent. In the next election, Democrat John Delaney ousted 10-term incumbent Roscoe G. Bartlett (R) by more than 20 percentage points. Democrats have held the House seat ever since.

The day after the midterm election this year, a three-judge panel ruled the boundary bending was unconstitutional and intentionally targeted Republican voters because of their political affiliation.

The judges gave the state until March to redraw it. Maryland Attorney General Brian E. Frosh (D) appealed to the Supreme Court the next week.

A clash waiting to happen

Current law sets up a redistricting collision course between Hogan and the state’s leading Democrats, Senate President Thomas V. Mike Miller Jr. (D-Calvert) and House Speaker Michael E. Busch (D-Anne Arundel). Both Democrats declined to discuss their plans for possible change, citing the ongoing lawsuit. In the past, they have said they would back an independent commission only if Republican-led states also did so.

Hogan is charged with recommending a congressional map after the 2020 Census and presenting it to the General Assembly as a piece of legislation.

State lawmakers can redraw the maps before approving them.

Hogan has power to veto any map he dislikes, but Democrats have more than enough votes to override the governor.

Since winning reelection by double digits earlier this month, Hogan has used some of his toughest rhetoric and promised to “fight” to get politicians out of the process.

“This is what the people want,” Hogan said Nov. 8. “They want the citizens picking their representatives rather than the representatives picking their constituents.”

The governor also joked that his arguments might be more persuasive now that the General Assembly would have to work with a Republican to draw the maps: “Maybe the legislature, knowing that I’m going to be the one drawing the districts, might be more open to taking it away from me.”

State Sen. Paul G. Pinsky, who will chair the Senate committee that takes up the maps, has long been an advocate for redistricting reform. But Pinsky (D-Prince George’s) also refuses to let Maryland act alone while Republican-controlled states continue partisan gerrymandering.

Pinsky said there’s broad agreement that “we have to come up with some new approaches. The question is: How do we get there? . . . I don’t want it to be partisan, but the transition to a nonpartisan process has to be bipartisan.”

He and other Democrats criticized Hogan, a rising star in national GOP circles, for not suggesting that Republican-led states also move to a less partisan process.

“What a shock, he wants us to go first,” Pinsky said.

After Hogan’s political feat, could the national stage be next?

Del. Jason C. Buckel (R), who served on Hogan’s 2015 committee to recommend redistricting changes, cautioned that there is no easy solution.

Giving redistricting power to a commission insulated from politics sounds easy in concept, he said, but in execution, it is not. Hogan’s committee, for example, could not agree on who should serve on such a commission, he said, and even briefly discussed conducting a lottery to select people at random.

“How in the world do you construct an independent commission?” he asked. “That’s the question that’s still open and unresolved.”

What is clear is that public opinion strongly favors an independent commission. A 2017 Goucher Poll that showed 73 percent of Marylanders back that approach, with only 20 percent saying politicians should remain in charge.

Nationwide, attitudes about partisan gerrymandering have also shifted. In November, four states adopted referendums to transfer redistricting power to independent commissions, joining the four others that already rely on the process.

In the next round of redistricting, Republicans will control maps for 179 House seats, down from 204 eight years ago. Independent commissions will draw them for 113 seats; Democrats will for 76, up from 24 in 2011; and state governments with split control will draw boundaries for 11 seats. (Seven other seats are in single-district states.)

How the midterms altered the 2020 redistricting landscape

Still, national parties plan to again invest heavily in state legislative seats and governorships in the 2020 elections with an eye to the redistricting that will follow.

Democrats have labeled their effort “Advantage 2020,” while Republicans call theirs “REDMAP 2020.”

O’Malley, who oversaw Maryland’s partisan gerrymandering, has had a change of heart about the practice.

In his deposition in the 6th District lawsuit, O’Malley said he wished Maryland had a nonpartisan redistricting commission when he was drawing the lines seven years ago.