By: Drew Marvel

While the recent fascination with gerrymandering would suggest it is a recent development in American politics, the practice is far from new. Gerrymandering is the practice of drawing election districts so as to give one political party a majority in as many districts as possible by concentrating the voting strength of the other party into as few districts as possible – and it has been a consistent force in American politics since the early 1800s. Contrary to the popular view of Republicans as the primary, if not sole, proponents and benefactors of gerrymandering, politicians in every state, Republicans and Democrats alike, have utilized this tactic to entrench themselves into power.

Maryland’s congressional districts have long been held up as a “textbook example” of partisan gerrymandering, where the state legislature, dominated by the Democratic Party, has all but transformed the state into a single party stronghold. In 2016, Republicans received 37% of the statewide vote for the U.S. House of Representatives and yet won only one out of eight seats. Just looking at the districts themselves would make even a layman observer suspicious of the motivation underlying the district lines. Whether it be the 8th District’s “narrow tentacle no wider than a couple thousand feet” that extends from northern rural Maryland into the heavily Democratic suburbs north of D.C., or the 3rd District which has been described as a “broken-winged pterodactyl, lying prostrate across the center of the state.”

As if the election results and generally bizarre shaped districts were not evidence enough of the partisanship underlying Maryland’s map, Democratic state officials have stated under oath that maximizing partisan advantage was their ultimate goal. In a deposition as part of litigation challenging the legality of the maps, Former Democratic Governor Martin O’Malley explicitly stated that his intent was to create a map that, “all things being legal and equal, would, nonetheless, be more likely to elect more Democrats rather than less.”

The Democratic firewall in Maryland, however, is beginning to crack. On November 7, 2018, a panel of three federal court judges in Maryland ruled the 6th Congressional District unconstitutional as it violated the First Amendment rights of Republican voters in that district. The case, Benisek v. Lamone, centered around the 2011 redistricting process when Democratic State officials specifically targeted thousands of Republican voters and moved them out of the 6th District, replacing them with Democratic voters from nearby areas to change the district’s political composition from “Solid Republican” to “Likely Democratic.” Ruling for the plaintiffs, Republican voters who were previously a part of the 6th District before the 2011 redistricting, the Court found that the State intentionally diluted their votes and burdened their associational interests based on their affiliation and voting history in violation of the First Amendment. The judgment, which can be appealed directly to the Supreme Court, requires the State to submit a new redistricting plan by March 2019.

The court’s ruling in Benisek is substantial not just because it provides support for further 1st Amendment challenges to gerrymandered districts, but because the Court was quite literally the only option left for Republican voters to remedy their situation. Due to the Democratic Party’s dominance of the Maryland legislature, attempts at redistricting reform and fairer districts have been consistently rejected for political reasons. Current governor, Republican Larry Hogan, has submitted bills to establish an independent redistricting commission in Maryland nearly every year since he took office in 2015 – and every year the bill has been rejected.

Maryland Democrats defend their rejection of Hogan’s bill on the grounds that in many other states, Republican-held legislatures have and continue to benefit from their own gerrymandered Congressional districts and therefore, Maryland Democrats do not want to abandon the practice unilaterally. Maryland Democrats in the legislature have instead pushed for their own bill that would condition Maryland’s adoption of an independent redistricting commission on an agreement of five nearby states agreeing to do so as well. Governor Hogan rejected this bill, characterizing the measure as a “phony bill masquerading as redistricting reform” that ignores the “overwhelming majority” of Marylanders who support nonpartisan redistricting – statements that are not entirely untrue. The likelihood of getting five different states with different legislatures, governorships, and intrastate politics to agree uniformly to an overhaul of their districting processes at the behest of a neighboring state is slim to none.

By conditioning Maryland’s reform on the actions of neighboring states, Democratic leaders in Maryland have effectively rejected the idea of nonpartisan redistricting without explicitly having said so. But as popular opinion on gerrymandering shows, this issue is one which should transcend the polarized politics as usual. One could look at the alternate redistricting bill proposed by Maryland Democrats and interpret it as saying “we will not stop violating our citizen’s constitutional rights to a free and fair election until other states stop doing so too” – an idea that runs contrary to the American principles of representative democracy.

Luckily, where the ordinary political process has failed to provide a remedy, the Court was able to do so. But, unfortunately, while the judicial route has proven viable in Maryland such an option is not likely available to prospective plaintiffs in other states. The Court’s ruling in Benisek can only be read in the context of the evidence supporting the Plaintiffs’ case – evidence that directly and unequivocally proved that State officials blatantly drew the maps to achieve a partisan advantage. In the absence of such crucial evidence, challengers to other states’ maps will have a much more difficult time making their case in court.

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