How the courts will react to a federal lawsuit challenging the constitutionality of Maryland's redistricting process, we can't say. The Supreme Court did recently strike down some of the congressional district boundaries in North Carolina, but that was on the relatively well-trodden ground of racial discrimination in redistricting. Maryland's case, and a few others percolating around the nation, rests on the argument that it is also unconstitutional to discriminate against members of a particular political party — in this state, Republicans, and in another case that's getting a lot of attention out of Wisconsin, Democrats. Justice Anthony Kennedy, considered a swing vote on the matter, expressed some willingness to consider partisan redistricting claims in a previous opinion, but whether the Maryland case or some other will present a viable standard for determining what is and isn't out of bounds is anybody's guess.
Nonetheless, Democratic lawmakers in Annapolis ought to give a good read to the deposition former Gov. Martin O'Malley made in the lawsuit, which was entered into the court file this week. The fact that he and others used the process to try to squeeze out one more Democratic seat in Maryland's delegation to the House of Representatives is no surprise. It was obvious at the time that the lines were drawn, and Mr. O'Malley has subsequently admitted it (and expressed regret for it). But we would ask the Democrats who have steadfastly blocked Republican Gov. Larry Hogan's efforts to institute non-partisan redistricting in Maryland to read through Mr. O'Malley's explanation of the process and imagine a second-term Mr. Hogan acting in his place the next time Maryland's lines are redrawn after the 2020 census.
As Mr. O'Malley describes it, redistricting was a preoccupation of the Democratic base when he was running for re-election in 2010. His Republican opponent was former Gov. Robert L. Ehrlich Jr., and "many times people in the audience would ask me, you know, in Democratic circles, about redistricting and how many Congress people we might lose if Governor Ehrlich were to win." When Governor Hogan goes around to Republican clubs, do you think the partisans are urging him to conduct the fairest, purest redistricting possible? We don't.
"I was also leader of the Democratic Party," Mr. O'Malley said in his deposition. "That's also a responsibility. It's a trust placed in me by the people who voted for me and gave me the party's nomination to head into the general [election]. ... When we redrew this, yes, we wanted to do it in a way, all things being equal and legal and constitutional, that will make it more likely rather than less likely that a Democrat, whoever he or she is that wins the party's nomination in any of the congressional districts, is able to prevail in the general election."
Do Democrats in the General Assembly, who frequently complain that Mr. Hogan is obsessed with politics at the expense of progress, think he would see his responsibility any differently?
Mr. O'Malley says in his deposition that although state law lays out parameters for a commission to solicit input on the congressional maps, and that he specifically met with the incumbent members of the state's delegation to the House of Representatives to get their input, in this state the process "allows whoever is the executive is to drive this." It was his chief of staff who did the actual work of moving precincts from one district to another — with the help, it turns out, of a consultant who specialized in helping Democrats re-draw maps to their advantage.
If Democratic legislators believe things would work differently if there were a Republican governor but a Democratic General Assembly, they might do well to read Senate President Thomas V. Mike Miller's deposition in the case. He stated under oath that he does not believe Democrats should work to draw lines that benefit other Democrats and that he was not aware of any effort to do so in Maryland after the 2010 census. Nor, he testified, did he look at any measures of Democratic voting performance during his participation in the last redistricting. House Speaker Michael E. Busch testified that he supported the map that was prepared by Governor O'Malley's office on the assumption that it was a good representation of the input from around the state. His job, he said, was to get the requisite 85 votes in the House for the map the governor produced, no more, no less. So they, apparently, wouldn't be much help if Governor Hogan decided to follow Governor O'Malley's lead.
We certainly would like to believe that, if he is re-elected, Governor Hogan would draw maps based purely on the input of the people of the state and a good faith effort to respect geographic and jurisdictional boundaries and to keep together communities of interest. We certainly would hope that, after all his talk about the evils of partisan gerrymandering, he wouldn't engage in it himself.
But why take the chance? Mr. Hogan has repeatedly proposed reforms that would potentially take the power to tip the scales for Republicans out of his hands. Why not let him?