Judge throws out Maryland congressional map over ‘extreme’ gerrymandering

This article first appeared here on WashingtonPost.com

A Maryland judge has thrown out the state’s congressional map, calling it an “extreme partisan gerrymander” in what is a victory for Republicans who said Democrats in the state General Assembly sought to silence their votes.

The ruling Friday by Anne Arundel County Senior Judge Lynne A. Battaglia marks the first time in Maryland history a judge has found a congressional map violated the state constitution. Battaglia ruled that the map ran afoul of rules laid out in Maryland law traditionally applied to legislative districts, requiring them to be compact and to give regard to political subdivisions. She also ruled that the map violated the state constitution’s equal protection, free speech and free elections clauses.

The weight of the evidence, she said, “yields the conclusion that the 2021 Congressional Plan in Maryland is an ‘outlier,’ an extreme gerrymander that subordinates constitutional criteria to political considerations.”

Battaglia enjoined the map from being used in this year’s primary and general elections in Maryland and ordered the General Assembly to redraw the map by Wednesday — a furious deadline for what has often been a weeks-long process.

A spokeswoman for the Maryland Attorney General’s Office said the office is still reviewing the decision and that it had not made a decision about whether to appeal.

Maryland Gov. Larry Hogan (R) called the ruling “a monumental victory for every Marylander who cares about protecting our democracy, bringing fairness to our elections, and putting the people back in charge.”

The governor encouraged the General Assembly to the adopt the maps drawn by his citizen advisory committee, which the legislature previously rejected.

“This is a historic milestone in our fight to clean up the political process in our state, and ensure that the voices of the people we are elected to serve are finally heard,” he said.

Legislative leaders who crafted and shepherded the map to approval defended it Friday evening, saying in a joint statement “we believed then, as we do now, that the new districts upheld the letter of the law.”

House Speaker Adrienne Jones (D-Baltimore County) and Senate President Bill Ferguson (D-Baltimore City) said in their joint statement that the judge’s order “establishes brand new legal standards for the drawing of the Maryland Congressional map.”

Battaglia had anticipated during the trial that the case would likely head to the Maryland Court of Appeals, as this summer’s primary elections fast approach. And itsfinal outcome could have big consequences in the midterm elections both for Maryland and nationally as Democrats’ majority in Congress hangs by a thread.

Maryland’s congressional map — passed on an overwhelming party-line vote in December — created seven safe Democratic seats and put the state’s sole Republican incumbent in Congress, Rep. Andy Harris, in jeopardy by making the 1st district competitive.

Fair Maps Maryland, an anti-gerrymandering group aligned with Hogan, said Battaglia’s ruling finally moves the state closer to ending partisan gerrymandering that has long favored Democrats.

“To call this a big deal would be the understatement of the century,” the statement read. “Judge Battaglia’s ruling confirms what we have all known for years — Maryland is ground zero for gerrymandering, our districts and political reality reek of it, and there is abundant proof that it is occurring. Marylanders have been fighting for free and fair elections for decades and for the first time in our state’s shameful history of gerrymandering, we are at the precipice of ending it.”

Battaglia joins a growing cohort of state judges across the country who have been willing to take on partisan gerrymandering after the U.S. Supreme Court in 2019 said federal courts were not the proper avenue for those challenges. In the battle for control of Congress this November, both parties have used partisan gerrymandering to try to maximize their chances of winning the majority. But in high-stakes legal challenges, some state judges have put up roadblocks. State high courts in North Carolina and Pennsylvania have thrown out maps they found impermissibly advantaged Republicans, while several other cases are pending.

In this case,Republican plaintiffs had argued that the congressional map — which passed the General Assembly on an overwhelming party-line vote inDecember — violated the Maryland Constitution’s protections of free speech, free and frequent elections and its equal protection clause by suppressing the strength of Republican voters.

Throughout the trial, witnesses for the Republican plaintiffs presented evidence that they said showed partisanship was the “dominant” consideration of map-drawers. Sean Trende, an elections analyst at RealClearPolitics, said the trend that he observed is that map-drawers apparently intended to “crack” the strength of Republican voters by spreading them out in heavily blue districts, where they are not likely to affect the outcome of an election. For example, map-drawers took Republican voters in Harford County out of the 1st District and put them in the blue 3rd District — while carving out blue Harford precincts near the Chesapeake Bay and keeping them in the 1st.

“It was plainly drawn with an intent to hurt the Republican Party’s chances of electing anyone in Congress,” said Trende, who most recently served as a special master tapped by the Virginia Supreme Court to redraw its congressional and legislative maps.

Battaglia found Trende’s testimony convincing, agreeing that “Republican voters and candidates are substantially adversely impacted by the 2021 Plan.” But she said Maryland did not show it had any “compelling interest” to rationalize those adverse effects on Republicans.

The Maryland Attorney General’s Office repeatedly argued that the state constitution’s provisions laying out criteria for legislative districts — that they should be compact and give regard to natural boundaries and political subdivisions — only applied to state legislative districts, not congressional. They also pointed out that there is nothing in the Maryland Constitution that forbids map-drawers from making political considerations when drawing maps, and that there is no way to determine if partisanship in a map is “extreme.”

Battaglia acknowledged on numerous occasions that this was the heart of the case — how much partisanship is too much?

But she ultimately still applied the state’s requirements for drawing legislative districts to the congressional districts to find the map unconstitutional,noting nothing in the constitution “explicitly” says those rules shouldn’t apply to congressional districts.

She was not persuaded by the state’s expert witnesses who argued legislators were free to make political considerations and that this map was not a partisan gerrymander.

Battaglia, citing a past ruling, noted that political considerations are valid but cannot trump constitutional requirements — and in this case, she said, that is what happened.

Republican state lawmakers who are plaintiffs in the case hailed the judge’s ruling, saying the strongly worded decision rights a wrong that has been perpetrated by the Democratic-controlled legislature for far too long.

“This is a victory for every Marylander,” Del. Kathryn Szeliga (R-Harford) said during a news conference in Lawyer’s Mall outside of the State House on Friday. “It is a victory for the representative democracy our founders envisioned.”

Del. Neil Parrott (R-Washington), who is seeking the Republican nomination in Maryland’s 6th Congressional District, said the decision marks a watershed moment for Maryland elections.

“This decision, should it stand, will not just impact this map, but maps for decades to come because this says you will follow the Maryland Constitution and the rules in the Maryland Constitution when you draw congressional maps, ” he said. “The state said we can draw a line across the state and that would be an equal map as long as the population was equal. … They declared they could do any map they wanted as long as the population was the same and Judge Battaglia said no, you’re going to follow the Maryland Constitution.”

If the state does appeal and Battaglia’s ruling stands, that could upend how the Democratic-controlled General Assembly draws congressional maps in the future, possibly imposing new restraints that have never existed before.

Maryland Democrats have often used their partisan advantage in the State House to draw maps favoring Democrats, and have admitted in past litigation to drawing the 2011 map to make it hard for a Republican to be elected in Maryland’s western 6th Congressional District. A federal judge famously remarked that the 2011 maps’ 3rd Congressional District resembled a “broken-winged pterodactyl lying prostrate across the state.” But partisan-gerrymandering challenges to that map did not ultimately succeed.

The state argued its 2021 congressional map is more compact than the last and that it should be credited for that — though attorneys for the Republicans scoffed that it was only better because it could not possibly be worse. Battagliacalled the state’s argument a “fictitious narrative.”

Battaglia’s short deadline for the General Assembly to redraw the map crams a huge legislative lift into the final two weeks of the Maryland General Assembly’s session, when lawmakers are scrambling to figure out how to dole out $350 million in tax cuts, legalize marijuana, address rising crime statewide and pass an omnibus climate change bill.

Szeliga said she doesn’t trust the legislature to redraw the map. “Look what they did,” she said. “I argued it in committee. … I’ve argued it on the House floor and they assured us what they did was constitutional.”

Battaglia scheduled an April 1 hearing on the General Assembly’s new proposed map.

The nonpartisan government transparency group Common Cause urged legislators not to leave out the public as they rush to draw a new map, reminding state lawmakers the map is not meant to serve political parties.

“The congressional map belongs to the voters of Maryland, not the politicians,” Joanne Antoine, executive director of Common Cause Maryland, said in a statement. “It’s time for the General Assembly to do right by the voters and lead a fair, open, and transparent process that results in fair maps.”

Posted in ,