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Frank DeFilippo: Supreme Court Blesses Legalized Bodysnatching

Advocates of a nonpartisan redistricting process, shown here protesting outside the Supreme Court in March, saw their hopes dashed by the justices last week. Photo by Bruce DePuyt

Larrymandering is out. Gerrymandering is in.

The Supreme Court’s five conservative justices, in tossing Maryland’s congressional redistricting map to the majority Democrats, decreed that the nation’s highest court has no role in what is pure politics, if you can believe that.

Put another way, the court said that partisanship is no reason for them to get involved in an area where the court shouldn’t be sticking its nose. They said nothing of how they were chosen or appointed.

The High Court has struggled for years over the issue of redistricting, juking case after case unlike lower appellate courts that appear eager to depoliticize politics. The high court, however, has intervened in cases of redistricting for racial reasons.

In a separate but equally important decision, the Supreme Court ruled that the Trump administration cannot include a citizenship question in the next census unless it comes up with a better excuse than the “contrived” reason that it offered.

Such a question could have had an indirect effect on congressional redistricting by influencing the population count which determines congressional representation. President Trump is considering asking to delay the census in another display of his contempt for the rule of law and his self-serving whims.

The net result of the two rulings is to force both political parties to mobilize at the state level to capture statehouses where redistricting is conducted with mathematical precision that allows officials to pick their constituents instead of the reverse. That is the conclusive failure of the traditional system. Nobody ever said politics is fair.

So Gov. Larry Hogan and the Republican minority will have to find another way to dislodge a Democrat or two from Maryland’s congressional delegation. How about winning elections, as God and the Founding Fathers – whom Republicans love to quote when they win – intended the process to be, which is essentially what the Supreme Court’s ruling said.

Here’s a hint for Hogan. He assumes the chairmanship of the National Governors Association this month. Maybe he can persuade the Republican governors of the 20 or so states that have been gerrymandered into total or partial GOP control to join him in Larrymandering the entire nation into political balance and fairness.

To salvage Maryland’s Congressional map intact, the attorney general, Brian Frosh, a Democrat, bucked Hogan and a lower federal court, which directed the state to redraw the 6th Congressional District by the 2020 election. Instead, Frosh, going against Hogan’s wishes, appealed directly to the Supreme Court and won. Frosh, and others, had hoped the court would lay down national guidelines for drawing congressional districts.

Hogan has made redistricting reform a primal scream in Maryland. It’s one of those narrow areas where he doesn’t have to act like a Democrat to beat them and can yap a full partisan battle-cry into the whistling wind.

Last year, for example, Hogan established a nine-member emergency commission to re-jigger the 6th District into acceptable shape. That meant giving Republicans a fair chance of recapturing the seat after they were ejected from it, unfairly, they claimed.

The result, after public hearings, was a refashioned map submitted by a writer for the liberal blog, Daily Kos. The General Assembly didn’t budge, and the map and the idea evanesced into the ether. Hogan says he’ll try again.

To be sure, nobody involved in legislative mapmaking is a born-again virgin. Martin O’Malley has acknowledged in a deposition that, as governor, he manipulated congressional boundaries to favor Democrats. Those linear adjustments cost Republican Roscoe Bartlett his 6th District seat. He was defeated by John Delaney, who relinquished the seat to become a candidate for president. He was succeeded by David Trone, another Democrat.

The Supreme Court has two functions – interpret the Constitution, and review existing law. Congressional redistricting, unlike legislative reapportionment, is problematic. There are no established formulas for drawing congressional districts except that there must be 435 districts of roughly equal population. This is where the court’s conservative literalists found themselves in a bind. The rest is left to the machinations of state legislatures.

In fact, the task of map-making is so daunting that Maryland’s political leaders were befuddled when the state was awarded an additional (eighth) congressional seat following the 1960 census. Unable to solve the problem, they took the unprecedented step of creating the extra-ordinary office of Congressman at-large – a statewide seat with the constituency of a senator but the powers and duties of a House member.

Carlton R. Sickles, of Prince George’s County, served two terms in the anomalous at-large seat. By 1966, that seat was finally shuffled into the existing congressional format of eight districts.

What’s more, the gods bumbled when they drew Maryland’s boundaries. It is one of the most misshapen states in the Rand McNally Atlas, a collection of zigs and zags where the glaciers left their Ice Age gouges by separating its shores and ripping up natural lines. There is no mathematical precision of squares and rectangles to its shape, making it all the more difficult to cookie-cut into eight neat little shapes.

Thus, with a little (a lot) of manual manipulation, there is no logic or purpose other than pure mimicry of the process by connecting Cambridge, on the Eastern Shore, with Cockeysville, in northern Baltimore County, after traversing the Chesapeake Bay, to form the 1st Congressional District. There was simply no way for Democrats to eliminate two Republican districts. Shaping a congressional map is like squeezing a balloon – squeeze in one place and it bulges in another.

Legislative redistricting, by contrast, has its origins in the 1960s “one man, one vote” ruling. At the same time state lawmakers had to adjust to new maps and new districts, they also wrote guidelines on how to develop the warrens – such as contiguity, commonality of interests and preservation of communities wherever possible.

In the drawing and re-drawing of districts, whether congressional or legislative, a few squiggles on the map can eviscerate a candidate, by-pass a neighborhood or shift an entire community into a new, unfamiliar district.

Both exercises will occur following the decennial census in 2020, possibly in late 2021 at a special session of the General Assembly or during its regular meeting early in 2022, in time for the 2022 elections. For those who subscribe to the “lame duck” theory, that will be Hogan’s final year in office, though it really doesn’t matter as Democrats have veto-proof majorities in both chambers.

Here is how the process works: The governor, sometimes working with Assembly leaders, sometimes not, draws the maps and presents them to the legislature. Lawmakers can take no action and allow the governor’s plans to become law automatically, or they can make changes and send them back to the governor for action.

In the case of legislative reapportionment, however, egregious attempts to use the maps as a form of punishment can be appealed to the Maryland Court of Appeals, which has the authority to redraw the lines to comply with accepted standards and guidelines.

Such was the case following the 2000 census when Gov. Parris Glendening (D) drew the reapportionment map as retribution against then-Sen. Norman Stone, and other legislators in the Dundalk area, for defying his wishes on certain issues. The court restored the Dundalk section of the map to its original form and reinstated Stone and his ticket-mates into their reelection safety zones.

Hogan’s intentions may sound honorable but really are no different from any other governor who wants to either consolidate or expand power for his party.

In Hogan’s case, it would have been an attempt to pick up at least one additional seat for the greatly outnumbered lone Republican, Rep. Andy Harris, in the eight-member Maryland House delegation.

Whether the insidious deed is Democrat or Republican, redistricting is still legalized bodysnatching.


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Frank DeFilippo: Supreme Court Blesses Legalized Bodysnatching