This story was originally post in the Washington Post.
Federal judges in Maryland floated the idea Thursday of taking the state’s congressional voting map out of the hands of political leaders and leaving the drawing of electoral lines to an independent, nonpartisan commission.
A three-judge panel pressed the attorney general’s office and Republican voters challenging the electoral map about the possibility of settling their long-running case as it arrived back in court for the first time since the Supreme Court declined to immediately review the matter of redrawn maps.
The high court in June avoided answering the question of when extreme partisan gerrymandering is unconstitutional in the Maryland case involving a Democratic-drawn map — and in another from Wisconsin involving a Republican-led effort.
The unsigned opinion left Maryland’s electoral lines untouched for the 2018 elections and returned the case to the lower court.
At issue is the 6th District in Western Maryland, which was redrawn in 2011 to include parts of heavily Democratic Montgomery County.
Michael B. Kimberly, an attorney for a group of Maryland Republicans, told the federal judges in Baltimore that new congressional districts designed by an independent commission would satisfy his clients.
“We want the state to conduct elections with a neutrally drawn map,” he said.
Assistant Attorney General Sarah W. Rice told the court that her office’s role was to defend the constitutionality of the statutes at issue. She did not address the commission notion.
The two judges who raised the independent commission — James K. Bredar and Paul V. Niemeyer — emphasized that their suggestion was just an idea. The court, as part of a settlement, could order the legislature to draw a new map, Niemeyer said. If lawmakers were unwilling or unable to do that, he added, the court could then give the job to an independent commission.
Bredar bemoaned the politics of partisan gerrymandering.
“Everyone condemns it, everyone says it’s terrible, but no one will fix it because no one wants to unilaterally disarm,” he said.
The 6th Congressional District (Tim Meko/The Washington Post)
But he also noted the limits of the court’s role.
[Federal judges decline to scrap Maryland's congressional voting map]
The third judge hearing arguments, George L. Russell III, did not comment directly on the possibility of a nonpartisan commission.
The panel of judges is specially convened to hear redistricting cases.
Former governor Martin O’Malley, a Democrat, has been blunt about the partisan mapmaking in a deposition in the case, saying Democratic leaders intentionally redrew the districts to try to give their party an advantage.
O’Malley now says he believes that redistricting should be done by an independent commission, not by lawmakers. Gov. Larry Hogan (R) took the unusual step of filing a brief supporting the challengers — and against the state — when the case was before the Supreme Court.
While 55 percent of Maryland’s 3.9 million registered voters are Democrats, Democrats hold nine of the state’s 10 seats in Congress.
For the past three years, Hogan has pushed for a constitutional amendment that would have an independent redistricting commission redraw boundaries, but his plan has died in committee each year.
Democrats, who hold a veto-proof majority in both General Assembly chambers, have pitched at least two competing plans to have several states move in concert to an independent redistricting commission. Hogan in 2017 vetoed a bill that would have established such a commission if five other Mid-Atlantic states also created one, calling the effort disingenuous and a hurdle to real redistricting reform.
Ashley Oleson with the Maryland League of Women Voters has tried to persuade state leaders to enact redistricting reform for the past three years. When she first heard that judges had suggested Maryland’s political leaders agree to an independent commission, she laughed at the prospect of the long-divided power brokers reaching a deal.
“That would be wonderful. As far as the likelihood, I don’t know what to say,” Oleson said.
A spokesman for Senate President Thomas V. Mike Miller Jr. (D-Calvert) on Thursday referred questions about the case and its possible resolution to the attorney general’s office.
At the Supreme Court, Justice Elena Kagan observed during oral arguments that “the Maryland legislature got exactly what it intended, which was you took a Republican district, like a safe Republican district, and made it into not the safest of Democratic districts but a pretty safe one.”
Democratic mapmakers in 2011 moved hundreds of thousands of voters from Western Maryland out of the 6th District and added Democrats from Montgomery.
Republican Roscoe G. Bartlett had represented the district since 1993; he was reelected in 2010 by a 28-point margin. But Bartlett lost to Democrat John Delaney in the redrawn district in 2012 by 21 points. Delaney has won reelection ever since.
The office of Maryland Attorney General Brian E. Frosh (D) says in court filings that the flip in party representation could be attributable to other factors. Delaney, the state notes, was a well-financed, well-organized candidate whose moderate views appealed to independent voters and some Republicans.
The individual voters challenging the electoral map also have failed to show that they were personally singled out or harmed by the newly drawn districts, Rice told the court Thursday.
In the Nov. 6 general election to succeed Delaney, newcomer David Trone (D) faces Amie Hoeber (R).
At the Supreme Court in June, Kagan provided a possible blueprint for future cases in a concurring opinion joined by the court’s other liberal justices. She suggested partisan redistricting plans might be assessed based on whether voters are punished because of their past political associations in violation of the First Amendment.
[Supreme Court sidesteps decision on partisan gerrymandering]
According to attorneys for the Maryland Republican voters, the gerrymander of the 6th District has had a “chilling effect” on political engagement, as shown by lower turnout among Republican voters and a drop-off in fundraising by the Republican Central Committee.
“Rigged elections make it impossible for Republicans to continue associating with other Republicans,” Kimberly said. “What’s the point of showing up when your candidate is almost certain to fail.”
The panel reviewing the case, Benisek v. Lamone, is unlikely to decide before the November elections whether a trial is necessary to move forward.
Robert Barnes contributed to this report.
