Redistricting Reform Advocates Stress the Positive in Supreme Court’s Md. Ruling

The Supreme Court sidestepped the issue of partisan redistricting on Monday, dispensing with two gerrymandering cases — including one from Maryland — without providing the guardrails or reform that good government advocates have long sought. “The Supreme Court ducked. Or as someone else put it — they punted,” said journalist Kenneth W. Jost, a longtime legal reporter and author of “Supreme Court Yearbook.” “They studiously did not decide either of the cases.” In the Maryland case, Benisek vs. Lamone, the justices ruled unanimously, in an unsigned opinion, that the plaintiffs, a group of Republican voters from Western Maryland, waited too long to file their challenge to the congressional map the General Assembly drew in 2011, following the most recent Census. Those voters argued, in a case heard on March 28, that the 6th congressional district was drawn to favor Democrats, effectively denying Republican voters their First Amendment rights. During oral arguments, several justices seemed underwhelmed by that novel theory. They also expressed the practical concern that the approaching June 26 primary effectively prohibited the court from ruling on the merits without throwing the election into chaos.   Walter K. Olson, co-chairman of the Maryland Redistricting Reform Commission  In the Wisconsin case, the court ruled that challenges to the lines drawn by Republicans in the state Assembly must by brought on a district-by-district basis, not against the state map as a whole. The rulings mean that elections in both states can proceed using existing maps. Political observers say the rulings — while narrow — may serve as a “green light” to politicians and political operatives to continue to use technology to tailor districts to their liking. They are also a source of disappointment for advocates of redistricting reform, who hoped that the court, after decades of litigation and growing concern about polarization in Congress, would use the two cases on the docket this year to curb partisan line-drawing. Several states, including California and Arizona, have enacted redistricting reforms, with independent commissions drawing political boundaries rather than politicians. Gov. Lawrence J. Hogan Jr. (R) has urged Maryland to do likewise. He and former California Gov. Gray Davis (D) filed a friend of the court brief in the Benisek case.  “While it’s disappointing that the Supreme Court did not remedy the issue of partisan gerrymandering in Maryland, today’s ruling clearly acknowledged that the constitutionality of Maryland’s districts has not been resolved and these issues are far from decided,” Amelia Chassé, a spokeswoman for Hogan, said in an emailed statement to Maryland Matters. “Everyone knows – as former Governor [Martin] O’Malley (D) admitted – Maryland’s voting jurisdictions were drawn in a way that was motivated by politics.” Chassé signaled that if Hogan is reelected in November, he will continue to push the majority-Democratic legislature to enact redistricting reform. “Now it’s time for the legislature to do what should have been done all along – join with us to pass nonpartisan redistricting reform so that every Marylander can be certain their vote truly counts,” she said. While critics of gerrymandering contend that tortured line-drawing is easy to spot and an affront to democracy, courts have long struggled with the practical question of determining when a disputed map becomes too political — and how to remedy the situation when that occurs. Reform advocates tried to accentuate the positive from the Supreme Court’s decision. “The court kicked this down the road, but states should not,” said Walter K. Olson, a senior fellow at the Cato Institute’s Robert A. Levy Center for Constitutional Studies and co-chairman of the Maryland Redistricting Reform Commission, which Hogan formed to explore taking the map-making process away from politicians. “Instead of [expressing] disappointment, I would stress the positive. … The public has been learning more about this process. The public cares more. This makes a good occasion to once again get back to work on making sure that this issue is heard in state legislatures.”   Todd Eberly, a political science professor at St. Mary’s College, said the Democrats running for governor have given “lip service” to redistricting reform but only with the “caveat” that they would not support a change to the process if Republicans in other states — notably Texas — continue to draw lines that favor the GOP. “If Democrats reclaim the governor’s mansion in 2018, any kind of redistricting reform in Maryland is just dead,” he said. “Not only is it dead, but given how hard-fought control of Congress is, I suspect that if Democrats win control in 2018 in Maryland, when they do the redistricting after the 2020 Census, the ‘8 Democrat/0 Republican’ district map that had been created under O’Malley but ultimately rejected, would breathe new life.” Maryland’s congressional delegation was split 4-4 as recently as in 2002. But the Democrats who control the General Assembly made a series of changes, in 2001 and 2011, that helped oust long-serving Republican Reps. Constance A. Morella and Roscoe G. Bartlett. Democrats now hold seven of the state’s eight House seats.  State Sen. Paul G. Pinsky (D-Prince George’s) believes Maryland should partner with a GOP-leaning state like Virginia, to remove some of the politics from the process. As for what Monday’s ruling means for the state in the short term, he said, “As long as people aren’t forced to pick a radically different approach like an independent body, there will be partisanship. That being said, will people be more sensitive to picking districts that look funny? I think so.”  [email protected]

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