Reeling From Election, State Pols Now Face Redistricting Fight

Democrat David J. Trone will be the last person to represent the 6th congressional district as it's currently drawn. Photo by Jarata Jaffa.

Democrat David J. Trone will be the last person to represent the 6th Congressional District as it’s currently drawn.

The morning after Trone succeeded in a multi-million-dollar self-funded bid to represent the district that stretches from Montgomery County to Western Maryland, a three-judge federal panel in Baltimore struck down the map as unconstitutionally gerrymandered.

An opinion and judgment from the court, released by the judges in U.S. District Court in Baltimore requires the state of Maryland to put in place a new map before the 2020 election.

The case, Benisek v. Lamone, has never gone to trial, but has been heard extensively in U.S. District Court and at the U.S. Supreme Court, which did not address the underlying merits of the case earlier this year. It was filed by a group of Republican voters in Western Maryland’s 6th District who sued the state in 2013, claiming the map drawn after the 2010 U.S. Census represented an unconstitutional abridgment of their First Amendment rights.

On Wednesday, the judicial panel agreed, citing mountains of evidence and statements from Maryland Democratic leaders in depositions and in media accounts at the time the maps were redrawn.

The panel concluded that the state specifically targeted voters in the 6th District as retaliation for historically voting for Republicans; intended to diminish the value of those residents’ votes; and successfully flipped the district from a Republican-leaning one to a Democratic-leaning one by moving around 700,000 voters into different districts and cracking Frederick County – which had been part of one contiguous congressional district since the 1800s – in two.

The court’s opinion — written by 4th Circuit Court of Appeals Judge Paul V. Niemeyer — details how Democratic officials used proprietary mapping information from NCEC Services, a political consulting firm that provides help to Democratic organizations. The services of NCEC were paid for by U.S. Rep. Steny Hoyer (D) and other members of Maryland’s federal congressional delegation.

After receiving a draft map from the congressional delegation that included boundaries favoring Democrats in seven of the state’s eight congressional districts, Democratic staffers in Annapolis made alterations to the map, still considering an NCEC formula that predicts Democratic performance in elections down to the precinct level.

The opinion includes quotes from Senate President Thomas V. Mike Miller Jr. (D) who talked about the pickup opportunity for the party at a caucus meeting; former Gov. Martin J. O’Malley (D), who admitted an intent to create a Democratic district; and statements from lawmakers during the abbreviated General Assembly special session when the map was approved in a partisan vote.

Niemeyer said the state’s argument that the shifts were intended only to “allow Democrats to have an equally effective voice in the election of a representative” rang hollow.

“It is impossible to flip a seat to the Democrats without flipping it away from the Republicans. Thus, when the government targets a class of persons based on the persons’ political affiliation and voting and then acts so as to burden their representational rights, it has run afoul of the First Amendment, no matter how it characterizes its intent,” Niemeyer wrote.

The state has said there were other considerations that forced the movement of the 6th District line, including a move that extended the 1st District northward and would have shifted the 6th’s easternmost boundary back. But the state’s explanations did not justify the dramatic exchange of voting populations or Democratic leaders’ stated intentions to flip the district, Niemeyer wrote.

The court also rejected an argument from the state about the burden of creating a map that will be used only for one election, 2020, before the next reapportionment and redistricting process begins.

“Every election employing constitutionally deficient districts causes irreparable harm,” Niemeyer wrote.

Right to Representation

The opinion also addressed additional fallout from the new map.

For example, Sharon Strine, one of the plaintiffs, had lived in the 6th District and was a consistent Republican voter before redistricting. Even though she now lives in the 8th District, Shrine volunteered for the 2014 congressional campaign of Dan Bongino, the man who come closest in the last six years to overcoming the Democratic-favoring odds in an election. But Strine testified that speaking to thousands of voters on the campaign trail, she often met someone who said voting wasn’t worth it anymore and the residents of the new 6th District felt disenfranchised and without representation.

Alonnie L. Ropp, who was a member of the Frederick County Republican Central Committee in 2014, said registering and mobilizing voters had become an enormous task in the county, overtaken with complex discussions about which district previously life-long 6th District residents now lived in.

Niemeyer wrote that other evidence corroborated the testimony about loss of the right to association and vote dilution. Sixth District registered Republican voters’ participation declined in midterm years in the predominately Republican parts of Western Maryland, and party committees saw a loss in fundraising.

“To be sure, citizens have no constitutional right to be assigned to a district that is likely to elect a representative that shares their views. But they do have a right under the First Amendment not to have the value of their vote diminished because of the political views they have expressed through their party affiliation and voting history,” Niemeyer wrote. “Put simply, partisan vote dilution, when intentionally imposed, involves the State penalizing voters for expressing a viewpoint while, at the same time, rewarding voters for expressing the opposite viewpoint.”

Gov. Lawrence J. Hogan Jr. (R), who has advocated for an independent redistricting commission since he was elected, celebrated the court’s decision.

“This is a victory for the vast majority of Marylanders who want free and fair elections and the numerous advocates from across the political spectrum who have been fighting partisan gerrymandering in our state for decades. With this unanimous ruling, the federal court is confirming what we in Maryland have known for a long time – that we have the most gerrymandered districts in the country, they were drawn this way for partisan reasons, and they violate Marylanders’ constitutional rights,” Hogan said in a written statement Wednesday.

Common Cause, the government watchdog group, filed an amicus brief in the case, supporting the plaintiffs.

“The court clearly sided with voters today by declaring that an unconstitutional, partisan gerrymander in Maryland squashed political participation and speech,” said Kathay Feng, the national redistricting director for Common Cause. “Gerrymandering is an abuse of power no matter who does it, and both Democrats and Republicans use it for their political gain.”

During a news conference in Annapolis Wednesday – just minutes before the court decision had been announced – Miller, the Senate president, said he would like courts to create a nationwide standard for political map-making. He said he’d be open to Maryland adopting a nonpartisan redistricting commission if surrounding states were prepared to do so.

“I think if Virginia and Pennsylvania and North Carolina are willing to come up with a plan with us…so that no one state is affected adversely on Capitol Hill, then we may have a deal,” Miller said.

Trone’s campaign said Wednesday that he was reviewing the court’s decision. “He has always been a strong supporter of national redistricting reform,” campaign spokesperson Hannah Muldavin said.

A spokeswoman for the Maryland Attorney General’s Office, which defended the map in court, said the office was “reviewing options as to the next steps.”

Judicial agreement

Niemeyer — one of the more conservative members of the 4th District who was appointed by President George H.W. Bush — wrote the majority opinion in the decision.

U.S. District Court Judge James K. Bredar concurred, but viewed the case more narrowly, writing that “while I do not agree with all of Judge Niemeyer’s analysis, I wholeheartedly join the conclusion that the current Maryland geerymander infringes the plaintiff’s valuable associational rights protected by the First Amendment.”

Bredar took issue with parts of Niemeyer’s analysis that included the outcomes of elections, writing that the causation analysis would ask future courts to discern whether an election’s outcome was the result of legislative boundary manipulation or shifting preferences of the voters themselves. Bredar wrote that even without the electoral outcomes, the plaintiffs had proven a retaliation violation of the First Amendment right to associate as soon as the map was finalized.

“There is no need to look to Election Day. The harm has already occurred,” Bredar wrote. “Members of the disadvantaged party have been severed from their preferred associates. Consequently, they feel that voting is futile. Organizers cannot effectively recruit volunteers or fundraise. Ties to communities of interest are diminished. The gerrymander has ‘ravaged the party’ before its members can even go to the ballot box.”

U.S. District Court Judge George L. Russell III filed an opinion concurring with both Niemeyer’s broader opinion as well as Bredar’s narrow one.

Bredar and Russell were both nominated by a Democrat, President Obama.

According to Wednesday’s judgment, a new map must be submitted to the court for review by March 7 at 5 p.m. At the same time, the court will establish a commission to start work on a new map, paid for by the state, in the event that a state-drawn map doesn’t pass muster with the court.

The court said the new map must use “traditional criteria for redistricting:” geographic contiguity, compactness, regard for natural boundaries and political subdivisions, and regard for geographic and communities of interest — and without considering political parties or voter registration.

How Hogan and the legislature move to produce a new congressional map remains an open question.

Bruce DePuyt and Josh Kurtz contributed to this report.

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