By Carolina Velloso and Natalie Jones
Capital News Service
WASHINGTON – The U.S. Supreme Court will hear oral arguments for two cases on congressional district gerrymandering on March 26, including one from Maryland, which could have far-reaching implications on how future electoral maps are drawn.
The justices could, for the first time, issue a standard for determining unconstitutional partisan gerrymandering.
At the heart of both the Maryland and North Carolina cases are accusations of redrawing district boundaries in order for one party to gain an advantage over the other in the states.
The Maryland case
At issue in the Maryland case, Benisek v. Lamone, is whether the state’s 6th Congressional District was gerrymandered by the Democratic-led state legislature in 2011 in order to flip that district blue.
After the state’s 2010 census data was released, then-Gov. Martin O’Malley, a Democrat, and a redistricting advisory committee redrew the congressional districts in the state the following year using voter demographics and a computer program. O’Malley submitted the proposed map to a special session of the Maryland General Assembly in October 2011, where it passed in both the House and Senate, despite Republican disapproval.
Before the census, the district included all of five mostly rural and conservative counties: Allegany, Carroll, Frederick, Garrett and Washington. The plaintiffs, including John Benisek, a resident of Washington County, claim that redistricting removed about 66,000 Republican voters in Carroll and Frederick Counties and replaced them with 24,000 voters from parts of the heavily Democratic Washington suburb of Montgomery County.
This created a 90,000-vote swing in the Democrats’ favor and resulted in “the single greatest alteration of voter makeup in any District in the nation following the 2010 census,” said Paul Niemeyer, a judge in the United States Court of Appeals for the Fourth Circuit, in the ruling that would eventually be appealed to the Supreme Court.
Before the 2011 redistricting, the 6th District had been known as a safe Republican seat, according to the Cook Partisan Voting Index, but the redrawing rendered it a more likely Democratic seat.
Conflict over district boundary lines began after the 2012 election for the U.S. House of Representatives when the 6th District’s 20-year incumbent, Republican Rep. Roscoe Bartlett, was unseated by Democratic challenger John Delaney.
A complaint originally was brought by seven Republican voters in the 6th District in 2013.
In the complaint, Benisek also asked for a three-member panel of U.S. District Court judges to consider his claims, but a U.S. District Court judge dismissed the case in 2014 without gathering the panel of judges, and the U.S. Court of Appeals for the Fourth Circuit affirmed the lower court’s decision.
Benisek then appealed the case to the U.S. Supreme Court, which rejected the lower courts’ decisions in late 2015 and the litigation proceeded.
The U.S. District Court for the District of Maryland ruled in November that the redistricting violated the plaintiffs’ First Amendment rights and honored Benisek’s request to block use of the 2011 maps.
The court ordered the drawing of new maps for the 2020 elections and ruled a three-person commission, headed by a magistrate judge, should redraw the map if no plan was submitted by March 7.
Maryland Attorney General Brian Frosh appealed the decision to the U.S. Supreme Court.
In response to the circuit court’s mandate, Republican Gov. Larry Hogan in November created the Emergency Commission on Sixth Congressional District Gerrymandering, a nonpartisan citizens’ panel to draw new boundaries for the district. He also said he intended to back legislation establishing a permanent nonpartisan redistricting process.
Hogan introduced that legislation in the General Assembly at the beginning of this session, but the bill received an unfavorable report from the House Rules and Executive Nominations Committee and has not advanced past a hearing in the Senate.
The emergency commission unanimously chose a map created by Stephen Wolf, an out-of-state staff writer for The Daily Kos, a partisan political organization dedicated to electing Democrats.
The selected map proposes moving Frederick County and central and southern Carroll County into the 6th District and moving other parts of central Montgomery County into the 8th District.
Hogan, joined by fellow Republican and with former California Gov. Arnold Schwarzenegger, filed an amicus brief with the Supreme Court supporting Benisek, saying that gerrymandered districts promote political extremes for both parties and drown out the voices of moderate voters, according to a statement.
“Free and fair elections are the very foundation of our democracy, and it’s past time for leaders on both sides of the aisle to put an end to the disgraceful practice of partisan gerrymandering,” Hogan said in a statement.
Maryland Del. Jason Buckel (R-Allegany County) agrees with the governor and Benisek, saying that redrawing the congressional districts is reasonable and good news for the state.
Even if the state still only has one Republican representative in the House after new redistricting and elections take place, Buckel said that he can live with it, provided every district plays by the same rules. If they don’t, voters lose connection with the government, he said
Del. Kirill Reznik (D-Montgomery County) also wants to see fair congressional redistricting in the state, but thinks that the state should hold off on the redistricting process until after the Supreme Court makes their decision in June, saying that it shouldn’t be done early to push a political agenda.
Reznik described Hogan’s current efforts with the redistricting process as over-complicated and “smoke and mirrors.”
“The map is illegitimate,” Reznik said, adding that there was no legislative input.
Several Maryland citizens and voters’ rights and fair representation groups have expressed their support for redistricting reform in the state.
The American Civil Liberties Union of Maryland filed a brief with the Supreme Court in January 2018 in support of the challenge against partisan gerrymandering in the state, describing it as “incompatible” with democracy and the government’s obligation to stay neutral.
The Maryland League of Women Voters also filed a brief in support of the plaintiffs.
“The Maryland League has made redistricting our number one legislative priority,” said Richard Willson, co-president of the league. “Each Marylander’s vote should count equally, as the drafters of the Declaration of Independence intended. Gerrymanders are bad regardless of whether they are done by Republican or Democrats.”
The Maryland Office of the Attorney General said in a statement to Capital News Service that it does not comment on ongoing litigation.
The North Carolina Case
In North Carolina, it is the Democrats accusing Republicans of redrawing district boundaries in their favor. In Rucho v. Common Cause, which was consolidated with League of Women Voters v. Rucho, the plaintiffs are contesting the state’s entire congressional map.
A Republican mapmaker redrew North Carolina’s district boundaries in 2016 after a court order found the previous boundaries to have been racially gerrymandered.
The mapmaker had instructions to create a 10-3 Republican majority in the House, according to Common Cause, a nonpartisan organization and one of the plaintiffs in the case.
State Rep. David Lewis made headlines that year when he was leading the Republican redistricting effort, when he freely admitted it would be a political gerrymander, “which is not against the law.”
“I propose that we draw the maps to give a partisan advantage to 10 Republicans and three Democrats,” he added, “because I do not believe it’s possible to draw a map with 11 Republicans and two Democrats.”
The North Carolina gerrymander is often called the worst-ever case of electoral manipulation.
A three-judge federal panel ruled in January 2018 that the state’s gerrymander was “of historic magnitude, not just relative to North Carolina history, but to that of the United States.”
Another three-judge panel ruled in the plaintiffs’ favor in August 2018, and the North Carolina General Assembly immediately appealed to the Supreme Court.