Jack Fruchtman teaches constitutional law and politics at Maryland’s Towson University.
Redistricting used to be regarded with a yawn. But it has become a hot issue. Republicans in 2000 successfully reconfigured state legislative and congressional districts to ensure their dominance in several states and Congress. One notable exception was Maryland, a Democratic stronghold.
Now, the focus is on persuading states to transfer state and congressional districting to nonpartisan commissions. Some states have had them for some time, and Colorado, Michigan and Missouri just joined them. Maryland Gov. Larry Hogan (R) has promoted one for Maryland, and now former Maryland governor Martin O’Malley (D) supports the concept, too.
A three-judge federal panel ruled after the midterm elections that the Maryland General Assembly in 2011 deliberately redrew the state’s congressional lines to remove longtime Republican Roscoe Bartlett. A year later, Democrat John Delaney won the seat. Writing for the court, Circuit Judge Paul V. Niemeyer quoted O’Malley as admitting in his signed deposition that we “set out to draw the borders in a way that was favorable to the Democratic party.”
Maryland Attorney General Brian E. Frosh (D) has appealed the ruling to the Supreme Court. The Supreme Court extended to June the deadline for redrawing the map; if the state does not, the court will appoint a nonpartisan commission.
But Frosh’s success is unlikely, and here is why.
Last year, the Supreme Court dodged two cases dealing with partisan gerrymandering: one from Maryland, the one Niemeyer just ruled on; and one from Wisconsin, where Republicans have long prevailed in the state legislature. The court returned these cases to the lower courts for additional argument.
Unlike racial gerrymandering, when states create districts deliberately to undermine the voting power of minorities, especially African Americans, partisan gerrymandering is a quintessentially political process. As Justice Antonin Scalia wrote in a 2004 decision, “Political gerrymanders are not new to the American scene. . . . In 1812, of course, there occurred the notoriously outrageous political districting in Massachusetts that gave the gerrymander its name — an amalgam of the names of Massachusetts Governor Elbridge Gerry and the creature (‘salamander’) which the outline of an election district he was credited with forming was thought to resemble.”
For Scalia, no appropriate judicial standard authorized the court to prevent this quintessentially political practice. This often leads to bizarre-looking legislative districts, including my own, Maryland’s 3rd Congressional District. A federal judge described it as “reminiscent of a broken-wing pterodactyl, lying prostrate across the state.”
Justice Anthony M. Kennedy wrote in a Pennsylvania case that “the challenge in finding a manageable standard for assessing burdens on representational rights has long been recognized.” He thought the court would eventually come up with one.
Niemeyer thinks he found one: “We . . . conclude that the plaintiffs have sufficiently demonstrated that Maryland’s 2011 redistricting law violates the First Amendment by burdening both the plaintiffs’ representational rights and associational rights based on their party affiliation and voting history.” In other words, his standard is based on the First Amendment’s guarantee of freedom of assembly, which the court has broadened into a general right of association. In the Wisconsin case that the court sent back this year, Democrats claimed they could not associate with each other; registered Republicans won 48.9 percent of the statewide vote, but the Republican Party controlled 63 of 99 seats through gerrymandering.
But Niemeyer’s opinion begs the question.
Back in 1962, Justice Felix Frankfurter commented, “What, then, is this question of legislative apportionment? Appellants invoke the right to vote and to have their votes counted. But they are permitted to vote and their votes are counted. They go to the polls, they cast their ballots, they send their representatives to the state councils. Their complaint is simply that the representatives are not sufficiently numerous or powerful. . . . What is actually asked of the Court in this case is to choose among competing bases of representation — ultimately, really, among competing theories of political philosophy — in order to establish an appropriate frame of government.”
In other words, voters do indeed associate with one another, even from the same political party; they are just not “sufficiently numerous or powerful.” Perhaps independent, nonpartisan commissions are the solution; surely the Supreme Court is not.