WASHINGTON — When Maryland Democrats redrew the state’s congressional districts in 2011, officials set up the commission charged with crafting the maps to avoid the state’s open meetings law, according to a cache of documents from the time reviewed by The Baltimore Sun.
Internal communications, meanwhile, show some officials fretted about using election data to redraw the state’s eight congressional districts. One wrote in a memo that the state had engaged in “bipartisan gerrymandering,” and worried about finding a consultant to defend Maryland’s map in court.
The documents shed new light on the behind-the-scenes machinations of the 2011 redistricting as the Supreme Court prepares to hear arguments in a case about whether Democrats went too far to craft a map that benefited their party.
The Supreme Court has scheduled arguments in Benisek v. Lamone for Wednesday.
“They set out to determine the outcome of the election in advance,” said Stephen M. Shapiro, the Montgomery County man who filed the lawsuit. “I’m not shocked to find there was gambling in the back room of the casino.”
The Maryland case is one of two before the court this term with the potential to change the national discussion around gerrymandering. The claimants are asking the court to throw out the map, which helped Democratic newcomer John Delaney defeat longtime Republican Rep. Roscoe G. Bartlett in the 2012 election, on the grounds that it violated their First Amendment rights.
That novel argument is an attempt to give the court a new legal theory with which to invalidate a gerrymandered map.
In a state where Democrats outnumber Republicans two to one, Maryland’s Democratic mapmakers have turned an eight-member House delegation that was split evenly between the parties in 2000 into one that now has seven Democrats and one Republican.
Documents reviewed by The Sun, and confirmed as authentic by the acting secretary of the state’s Department of Planning, Robert S. McCord, offer an insider’s view of the involvement and early planning of some state agencies in the months leading up to that process.
“Redistricting is upon us,” then-Planning Secretary Richard E. Hall wrote to then-Gov. Martin O’Malley in 2010. “We need to discuss near and longer term issues soon.”
Months later, Hall sent a memo explaining the structure of the Governor’s Redistricting Advisory Commission, which would craft O’Malley’s map. The commission included Maryland House Speaker Michael E. Busch, Senate President Thomas V. Mike Miller, longtime O’Malley confidant Jeanne D. Hitchcock and two businessmen.
A central responsibility of that commission was to hold public hearings, but the memo shows the commission was also created in such a way as to avoid the state’s open meetings laws. The document makes clear that the same process had been used in redistrictings before O’Malley’s tenure.
“The commission has never been created by a formal mechanism such as an executive order since that would automatically trigger” open meeting requirements, Hall wrote. “Rather, the commission’s creation and its appointments have simply been announced.”
Transparency in redistricting varies widely by state, though it’s common for meetings to be shielded from view. In California, where a citizens’ commission handles the process, the public was invited to dozens of meetings in 2011. But in Wisconsin, by contrast, lawmakers were required to sign nondisclosure agreements.
Hall told The Sun that officials did not go out of their way to keep the redistricting process secret. He noted that the commission held hearings around the state, and officials received hundreds of public comments about the proposed map.
But he said, it’s also the case that officials sometimes needed to meet privately, such as to discuss early drafts of the map.
“At any level of government that’s a perennial issue,” said Hall, now a planning official in Delaware. “There’s always a step in the process where you want to be able to have some internal” discussion.
It was not the only case of state officials’ holding their cards close to the vest. In a November 2011 email, a state attorney advised others against providing Del. Neil Parrott with a “version of the recently passed congressional redistricting map.”
“Please do not commit to producing it before talking to me,” the attorney wrote.
Parrott, a Washington County Republican, would lead the effort to force a referendum on the map.
Most of the documents show state officials trying to pull together an effort they knew would be unwieldy and complicated. They show how many state agencies, including the Department of Legislative Services and the attorney general’s office, became part of that effort.
At other times, the material shows hints of concern. In one memo, titled “Follow up thoughts regarding Redistricting 2011-2012,” an unnamed official who represents himself or herself as being with the Department of Legislative Services voiced concern about using elections data.
“In a perfect world, in my opinion, this data would never be used to draw plans,” the official wrote. “In fact, it should not be used to draw plans since this increases the state’s vulnerability.”
Current and past officials at the department did not respond to requests for comment.
Emails show state planning officials later working with elections and registration data.
Hall said the department was a clearinghouse for the data. Its employees had the expertise to rope it into the redistricting software used by the commission. He said planning officials turned the material over to the commission and were not involved in drawing maps.
Legal analysts said that arrangement is common.
“It’s not wrong to be armed with this data,” said Michael Li, senior counsel at the nonpartisan Brennan Center for Justice at New York University. “The question is what you do with it.”
Doug Mayer, a spokesman for Republican Gov. Larry Hogan, said the documents point to a wide effort that went well beyond the governor’s political team to benefit the Democratic Party. The governor has called repeatedly for a nonpartisan commission to lead redistricting, an idea Democrats in Annapolis have rejected.
"If the state government-wide conspiracy that took place to strip Marylanders of their fundamental constitutional right to free and fair elections isn’t already illegal, then it damn well should be,” Mayer said. "It could not be more crystal clear what went down here.”
O’Malley said that the state looked to past practice for guidance — a point reinforced in many of the documents reviewed by The Sun. The 2016 Democratic presidential candidate has since come out in favor of nonpartisan redistricting commissions.
“We followed the practice and the patterns and the precedent set before us,” O’Malley said in an interview. “Our country would be best served by doing away with partisan motives in redistricting, but that wasn’t the law and that wasn’t the reality within which we did redistricting.”
Even as the state pursued past practice, it was clear some in the administration were aware of the potential legal hurdles. One memo from 2010 shows an official wresting with the prospect of hiring a consultant to review the map to make sure it would withstand legal scrutiny.
Maryland Policy & Politics
“Most of the experts that have actually written about it think that [gerrymandering] is bad, and many will assert there are tests that the courts can apply, making it justiciable,” the official wrote. “How much of a problem this presents is not clear.”
McCord said the documents were found as part of a recent effort to respond to records requests. Some include email headers or official logos from agencies, but many more do not. Some might be drafts. The memo opining about potential consultants is not signed, and it’s unclear whether anyone ever saw it.
A spokeswoman said the Maryland Attorney General’s Office could not vouch for its authenticity and declined to comment.
The lawsuit pending before the Supreme Court, brought by seven Republican voters, is based on a claim that the state violated the First Amendment's prohibition against retaliating against an individual because of his or her speech or conduct. The voters say Republicans in the 6th District were penalized because of the way they cast their ballots in previous elections.
Shapiro, a former federal employee who is now in his final year of law school, filed the case in 2013 but is no longer a claimant. A Democrat, he was dropped from the case in 2016 when the legal argument narrowed to focus solely on Republican voters.
Michael B. Kimberly, an attorney representing the Maryland voters in the case, noted that people are protected from retaliation from the government for exercising their First Amendment rights. The case argues that Maryland officials tried to do exactly that to Republican voters when they redrew the map.
“The map drawers … looked at the way that voters had cast their ballots in the 6th District … and in effect disapproved that,” Kimberly said. “They set out to disadvantage those voters in the political process by diluting their votes. In fact, that’s what they did. And it worked.”