Maryland’s leaders face a critical and complex choice in light of a decision in which three federal judges found the state’s 6th Congressional District to be unconstitutionally gerrymandered: fix it or appeal to the U.S. Supreme Court.
Attorney General Brian Frosh, who will make the final call, hasn’t announced a decision. A spokeswoman said he hopes to decide soon, but under court rules he has more than three weeks to make up his mind.
Republican Gov. Larry Hogan wants Frosh to accept defeat and set the state on a course to draft a new map by the March 7 deadline set by the judges.
The top leaders of the Democrat-controlled General Assembly, who were principal authors of the map that includes the problematic district, have declined to comment.
The State Board of Elections and state elections administrator, who are the defendants in the case and are represented by Frosh, are officially neutral.
Without the ruling, the state’s next redistricting would not take effect until the 2022 election, after the 2020 U.S. census is completed. States are required to adjust their lines after each census to reflect population changes.
But the panel of federal judges found Wednesday that the state’s Democratic leaders violated the rights of Republicans in western Maryland when they used data from the 2010 census to draw the 6th district’s lines with an intent of “flipping” it from a Republican-held seat to one that could elect a Democrat. One of the judges on the panel is from the 4th U.S. Circuit Court of Appeals and two are from the U.S. District Court in Baltimore.
If the state complies with the ruling — or if it appeals and is quickly turned down — the governor and the General Assembly would face the task of drawing a new map for the 2020 election. It is unclear whether any such solution would affect just the 6th District and the neighboring 8th District, or result in a new map for the whole state.
The governor could propose a map to the legislature, and later make whatever changes needed to get it passed. Any legislator could come up with his or her own map. If the General Assembly adopted a plan of its own, the governor could veto it, although the Democrats have the votes to override such a veto.
After the state’s plan is final, it would still need the judges’ approval.
“The ruling is clear,” said Todd Eberly, a political scientist at St. Mary’s College. “’If you send us a map we don’t like, you don’t get a second chance. We’ll draw it.’”
If Frosh decides to appeal, he could ask for a delay of the March 7 deadline. Whether he would get one would be up to the courts.
Any attempt to take the case to the high court has national appeal for Democrats. If the Supreme Court agreed to hear it, and upheld this week’s decision, that could set a precedent across the country that would curb the practice of letting legislators choose their voters — rather than the other way around.
That’s why Kathay Feng, national redistricting director for Common Cause, would love to see Frosh try to take the case to the Supreme Court, where she thinks opponents of gerrymandering would prevail.
Feng said Maryland Democrats have a choice between their narrow interests and the broader interests of their party and the nation.
“Oftentimes, politicians can’t see past their own noses,” she noted.
After a Republican wave in the 2010 elections, GOP legislatures and governors gerrymandered congressional districts in many states to limit the number of seats for which Democrats could compete. It was a strategy that let the GOP dominate the U.S. House for most of the decade — until this year’s blue wave gave the Democrats back the majority.
Maryland was one of the few states that emerged from 2010 with a Democratic governor and deep blue majorities in both houses of the legislature. As spelled out in the judges’ decision this week, then-Gov. Martin O’Malley, state Senate President Thomas V. Mike Miller and House Speaker Michael Busch worked to turn Maryland’s 6-2 Democratic majority in the U.S. House delegation to a 7-1 advantage.
Until the court ruling, the strategy was a success: Democrats won control of the 6th in 2012 and have held onto the seat.
Republican voters challenged the map in court. After a lengthy process that took them to the Supreme Court and back, they won Wednesday. The judges said that if the General Assembly and Hogan don’t comply by the deadline, the job will go to a three-person commission.
Michael B. Kimberly, a lawyer for the plaintiffs, said that assuming the state appeals, the Supreme Court could take up the Maryland case, a redistricting case from North Carolina or both.
In the North Carolina case, a lower court found that Republicans in that state unconstitutionally stacked the deck when they drew congressional district lines. The court did not insist that new lines be drawn for this year’s election, and North Carolina elected Republicans to 10 of its 13 seats.
“On a national level, there’s no question it would be helpful to the Democrats to do away with gerrymandering,” Kimberly said. “It would be helpful for our democracy nationwide.”
Raquel Guillory Coombs, a spokeswoman for Frosh, said the state will decide quickly whether to appeal because of strict time limits in the judges’ order.
“A thorough review of the facts will take place before any decision on how to move forward is made,” she said.
If Hogan had his way, the state wouldn’t appeal, spokeswoman Amelia Chasse said. He has advocated for giving the job of drawing congressional and state legislative district lines to an independent commission.
“We think this is an opportunity for everyone to move forward and correct this imbalance in the districts sooner than we thought we’d have the next opportunity,” Chasse said.
State election administrator Linda Lamone referred questions to the attorney general’s office.
David McManus Jr., the Republican chairman of the state elections board, said that agency does not take a position on the decision. He said he expects that the attorney general will consult with the “political branches” of government — the governor and legislative leaders — before moving ahead.
“We just administer the map that the political branch has drawn,” he said.