Lawsuit forces Maryland Democrats to acknowledge the obvious: Redistricting was motivated by politics

WASHINGTON — Maryland Democrats drew the state's convoluted congressional districts with an eye toward ousting a longtime Republican incumbent and replacing him with a Democrat, former Gov. Martin O'Malley has acknowledged as part of a high-profile legal challenge to the maps winding its way through federal court.

The acknowledgment that state Democrats were working in 2011 to add a seventh member of their party to the House of Representatives, widely understood at the time but seldom conceded publicly even now, comes as Republican Gov. Larry Hogan is advocating for a nonpartisan redistricting commission, ostensibly to curb partisan gerrymandering.


The lawsuit, filed in 2013 by a former federal employee, is shedding new light on the machinations that took place behind the scenes as Democrats sought to oust Republican Rep. Roscoe G. Bartlett from the seat he had held for nearly two decades.

"That was my hope," O'Malley told attorneys in a deposition. "It was also my intent to create … a district where the people would be more likely to elect a Democrat than a Republican."


Mapmakers extended the boundaries of Bartlett's Western Maryland district into Democratic portions of Montgomery and Frederick counties after the 2010 Census, and former banker John Delaney, a Democrat, won the seat in 2012 by nearly 21 percentage points.

The plaintiffs are hoping to formally establish what is widely believed: That Maryland Democrats considered past voting patterns to squeeze an advantage out of the maps. Attorneys recently deposed O'Malley, Senate President Thomas V. Mike Miller Jr. and House Speaker Michael E. Busch as part of the lawsuit, and reviewed emails of officials involved in the process.

The plaintiffs, including Stephen M. Shapiro of Bethesda, are making a novel legal argument: They say the redistricting was unconstitutional because it violated the First Amendment rights of Republican voters in the 6th District.

Most gerrymandering cases have been brought under the 14th Amendment, and involve questions of how racial groups are treated, not voters of a given political party.

In a motion filed late Wednesday, attorneys said the maps were drawn not by the public commission created by O'Malley in 2011 to perform the task, but by a consultant working for the Democratic members of the state's congressional delegation.

Though it is not uncommon for consultants to handle the technical work of a redistricting, testimony in the case suggests that it was the Democratic delegation members who drove the effort.

The Democratic lawmakers, led by Rep. Steny Hoyer of Southern Maryland, hired Washington-based NCEC Services Inc. to craft the map, according to court documents. Eric Hawkins, an analyst at the organization, told attorneys he drafted between and 10 and 20 different versions of the maps.

"The purpose of what we were doing was, No. 1, incumbent protection. And No. 2, trying to see if there was a way that there was another Democrat district in the state," Hawkins said in his deposition.


Court documents show aides to Hoyer, Miller, Rep. John Sarbanes of Baltimore County and others were involved in that effort.

The plaintiffs are seeking an injunction to force the state to begin the process of redrawing the maps for the 2018 midterm election.

"Everybody understood that the Democrats were targeting the 1st District or the 6th," said Michael B. Kimberly, an attorney with Mayer Brown who is representing Shapiro pro-bono. "But it's been quite a lot of work getting state officials to come around and finally admit that."

A spokesman for O'Malley referred questions to the Maryland attorney general's office. A spokeswoman for Attorney General Brian E. Frosh declined to comment.

A spokeswoman for Hoyer said redistricting reform should be addressed at the national level.

"While partisanship has always played a role in redistricting, Rep. Hoyer has long advocated for national redistricting reform that doesn't advantage one party over the other," spokeswoman Annaliese Davis said.


Depositions in the case underscore the fraying nerves behind closed doors during the redistricting process, even as Democrats presented a mostly unified public face.

"John Delaney was irate after the eventual map came out and was absolutely, positively convinced that we went out of our way to carve his million-dollar home out of the Sixth District," O'Malley said in the deposition.

"Congresswoman [Donna] Edwards was not willing to discuss anything about the map and felt that whatever we do in any other district is fine by her, but she did not want a single precinct of her district moved anywhere," O'Malley said.

Edwards, a Prince George's County Democrat who left her seat last year to run for Senate, was among the most vocal critics of the map at the time.

Edwards and Delaney declined to comment Wednesday.

O'Malley, who ran an unsuccessful campaign for the Democratic presidential nomination last year, wrote in a social media post recently that he was convinced as governor that the party should draw lines that are favorable to Democratic candidates.


He acknowledges that the approach isn't necessarily "good for our country as a whole."

For those still involved in Democratic politics in the state, the position isn't so easy to flip. A nonpartisan commission of the kind Hogan has proposed would likely result in fewer Democrats in the Maryland delegation. That has put state Democrats in the awkward position of saying they support redistricting reform, but only if Republican-led states go along at the same time.

The idea, they say, is based on mutual disarmament: A Democratic-led state shouldn't have to give up its advantage if Republicans elsewhere are still relying on it. That calculation will be complicated if Hogan wins a second term next year and has a say in how the maps are drawn following the 2020 Census.

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Miller, in his deposition, repeatedly denied that politics influenced how the lines were drawn. Asked if he personally wanted to maximize the Democratic advantage in the districts, Miller flatly stated "no."

"You credit me with having too much say in these things," Miller told the court. "Since I don't run for Congress, I'm not a member of Congress, I want lines that are drawn that are fair to everybody. And like I said before, I'm bipartisan. I work for Republicans and Democrats."

A unanimous Supreme Court in 2015 described Maryland's congressional district map as a "crazy quilt" and ruled that Shaprio's case must be allowed to proceed.


Shaprio had appealed to the Supreme Court after a district judge said the case did not meet the standard for convening a panel of judges to review and dismissed it.

Shapiro based his First Amendment claim on a 2004 concurring opinion by Justice Anthony Kennedy in another case. Kennedy wrote that the First Amendment could be used as a basis of a redistricting lawsuit if plaintiffs could argue a state law resulted in a "disfavored treatment" of some voters based on their political views.