Assessing the Ability of Governor Hogan to De-Politicize Maryland’s Federal Redistricting Process

Fixing the Broken-Winged Pterodactyl: Assessing the Ability of Governor Hogan to De-Politicize Maryland’s Federal Redistricting Process

“In form, the original Massachusetts Gerrymander looks tame by comparison, as this is more reminiscent of a broken-winged pterodactyl, lying prostrate across the center of the State. The Third District is rated at or near the bottom of all congressional districts in multiple measures of statistical compactness”

Stanley R. Carignan*

The 2010-midterm elections ushered in a new era of partisanship and legislative stalemate unprecedented in modern times.  Adam Bonica, Introducing the 112th Congress, Ideological Cartography (Nov. 5, 2010), http://ideologicalcartography.com/2010/11/05/ introducing-the-112th-congress/.  While the election was a national victory for Republicans, Democrats in Maryland retained their control over the Governor’s office and both chambers of the state legislature.  2010 General Election Results, Md. State Board of Elections, http://www.elections.state.md.us/elections/2010/results/General/gen_results_2010_2_003-.html (last visited Aug. 27, 2015).  In October 2011, Governor Martin O’Malley called a special session of the state legislature to update Maryland’s congressional maps in compliance with the 2010 U.S. Census.  Jeff Newman, Redistricting 101: Democrats Positioning for 7-to-1 Capitol Hill Advantage, SoMd News (Sept. 30, 2011), http://www.somdnews.com/article/20110930/NEWS/709309923&template=southernMaryland.  Republicans, the minority party, faced considerable legislative obstacles to getting any favorable districts drawn in the new congressional maps.  2010 General Election Results, supra.  Indeed, the congressional districts ultimately produced by the special session are today considered some of the most blatantly partisan in the nation.  Christopher Ingraham, America’s Most Gerrymandered Congressional Districts, Wash. Post: Wonkblog (May 15, 2014), http://www.washingtonpost.com/news/wonkblog/wp/2014/05/15/americas-most-gerrymandered-congressional-districts/.  Justifiably frustrated with the outcome of the partisan redistricting process, Republicans successfully petitioned for a voter referendum on the new congressional maps approved by the legislature.  Aaron C. Davis, Md. Voters Likely to Decide Congressional Map, Wash. Post (July 11, 2012), http://www.washingtonpost.com/blogs/maryland-politics/post/md-voters-likely-to-decide-congressional-map/2012/07/11/gJQASWxidW_blog.html.  Despite the Republican outcry, Maryland voters approved of their new partisan congressional districts at a ratio of nearly two to one.  Official 2012 Presidential General Election Results for All State Questions, State Board of Elections, http://www.elections.state.md.us/elections/2012/results/general/gen_qresults_2012_4_00_1.html (last updated Nov. 28, 2012).  A similar process played out across the nation as state parties in the majority or supermajority leveraged their power to draw favorable districts.  Noah Litton, The Road to Better Redistricting: Empirical Analysis and State-Based Reforms to Counter Partisan Gerrymandering, 73 Ohio St. L.J. 839, 841 (2012).

At the end of Democratic Governor O’Malley’s final term in 2014, Marylanders elected a Republican as his successor.  2014 Election Results, State Board of Elections, http://elections.state.md.us/elections/2014/results/General/gen_results_2014_2_003-.html (last updated Dec. 2, 2014).  During the campaign, one of Republican Governor Larry Hogan’s promises was to “bring both parties together to end gerrymandering . . .” through a non-partisan process.  Jenna Johnson, Is This How Maryland’s 3rd Congressional District Is Supposed To Look?, Wash. Post (Sept. 21, 2014), http://www.washingtonpost.com/local/md-politics/in-maryland-anti-gerrymandering-activists-take-message-to-their-target/2014/09/21/2f3dce36-4180-11e4-9a15-137aa0153527_story.html.  On August 6, 2015, he took steps to fulfill that promise when he signed an Executive Order establishing the Maryland Redistricting Reform Commission.  Governor Larry Hogan Signs Executive Order Establishing Maryland Redistricting Reform Commission, The Office of Governor Larry Hogan, http://governor.maryland.gov/2015/08/06/governor-larry-hogan-signs-executive-order-establishing-maryland-redistricting-reform-commission/ (last visited Aug. 28, 2015).  However, the Commission’s eventual report to the Governor will not contain any immediately feasible solutions allowing Governor Hogan to end the partisan redistricting process in Maryland.

Amending Maryland’s Constitution

Because both the legislature and voters of Maryland approved the new maps, the only legislative solution remaining for Governor Hogan is to support an amendment to the Maryland Constitution.  The Maryland Constitution can be amended in two ways: a constitutional convention can be called by automatic ballot referral or Marylanders can ratify an amendment passed by the legislature.  Md. Const. art. XIV.  The automatic ballot referral provision of Maryland’s Constitution provides that, once every twenty years, the voters of Maryland can elect to call a constitutional convention to amend Maryland’s Constitution.  Md. Const. art XIV, § 2.  Most recently, in 2010, the automatic ballot referral fell short of the required votes when a majority of voters failed to approve the measure.  Jessica Anderson, Maryland Constitutional Convention Uncertain, Balt. Sun (Nov. 3, 2010), http://articles.baltimoresun.com/ 2010-11-03/news/bs-md-con-con-results-20101103_1_convention-question-constitutional-convention-ballot-question.  The automatic constitutional referendum will not trigger again until 2030.  Id.  The other method of amending Maryland’s Constitution permits the Maryland legislature to pass a constitutional amendment with a three-fifths majority and submit it for ratification by a simple majority of the voters.  Md. Const. art XIV, § 1.  However, this amendment process does not circumvent any of the obstacles that Governor Hogan currently faces: a Democratic legislature with a controlling supermajority and a Maryland electorate who previously approved the partisan maps.  Thus, it seems highly unlikely that Governor Hogan can achieve the change he seeks by supporting an amendment to Maryland’s Constitution.

Judicial Resolution

A second option for Governor Hogan to solve this redistricting issue is to challenge Maryland’s maps in court and seek a remedy that will require the state to redraw its maps in a non-partisan way.  Previous litigants successfully challenged their states’ congressional districts in court, forcing their states to redraw the districts.  See, e.g., League of Women Voters of Florida v. Detzner, No. SC14-1905, 2015 WL 4130852, at *45 (Fla. 2015) (holding that Florida’s congressional map violated state anti-gerrymandering law and requiring the legislature to redraw it); Page v. Virginia State Board of Elections, 58 F. Supp. 3d 533, 555 (E.D. Va. 2014) (holding that Virginia’s congressional map was discriminatory and requiring the legislature to redraw it).  In Virginia, the judicial challenge led to a federal judge drawing the state’s congressional districts after the state legislature became deadlocked in a partisan battle over the new lines.  Michael Martz, Federal Judges Will Redraw Virginia’s Congressional Map, Richmond Times-Dispatch (Aug. 17, 2015), http://www.richmond.com/news/virginia/

government-politics/article_f1cfe690-4096-51ba-afb5-cae7a8ecf5f1.html.  However, Marylanders already challenged their congressional maps, twice, prior to Governor Hogan’s election to office.  See Benisek v. Mack, 11 F. Supp. 3d 516 (D. Md. 2014) (challenging Maryland’s congressional map on the grounds that it fails to provide fair representation for Maryland’s citizens), cert. granted on other grounds, 135 S. Ct. 2805 (2015); Fletcher v. Lamone, 831 F. Supp. 2d 887, 892 (D. Md. 2011) (challenging Maryland’s congressional map on the grounds that it is racially discriminatory against African Americans).  In both cases the Court expressed sympathy to the claims of the plaintiffs, but relied on Vieth v. Jubelirer to dismiss their complaints.  Benisek, 11 F. Supp. 3d at 525; Fletcher, 831 F. Supp. 2d at 902; see Vieth v. Jubelirer, 541 U.S. 267, 281 (2004) (holding that there are no judicially discernible and manageable standards for adjudicating political gerrymandering claims).  Thus, while recent Supreme Court decisions have shown an openness to embracing politically independent redistricting commissions as a means to creating less partisan legislative maps, the only solution for a reform-minded governor remains to rely on the intensely partisan legislative process.  See Arizona State Legislature v. Arizona Indep. Redistricting Comm., 135 S. Ct. 2652, 2677 (2015) (holding that use of an independent redistricting commission to draw congressional districts is constitutional).

Conclusion

Governor Hogan’s current effort to reform how Maryland draws its congressional districts is a noble undertaking that would ensure him a lasting legacy in the state.  But this reformation will not happen immediately.  Governor Hogan’s best hope for redistricting reform is to win re-election in 2018 so that he can safeguard Maryland’s congressional districts from being drawn in a partisan way after the 2020 census.

*Stanley Carignan is a second year law student at the University of Baltimore School of Law. This February, he is competing as a member of the National Taxation Law Moot Court Team. He is currently interning with Judge Shirley M. Watts on the Maryland Court of Appeals.