Furor over multi-member districts returns as legislative redistricting trial wraps up

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The ability of legislative district mapmakers to use both single- and multi-member delegate districts is enshrined in the Maryland Constitution. But an attorney for petitioners against the state’s new legislative map argued in the Court of Appeals Thursday that their use conflicts with other constitutional provisions.

David K. Bowersox, an attorney in a petition brought by Dels. Brenda J. Thiam (R-Washington) and Wayne A. Hartman (R-Wicomico) and Republican voter and Hampstead resident Patricia Shoemaker, argued that Maryland’s use of both single- and multi-member districts conflicts with the Maryland Declaration of Rights’ guarantee that elections be “free” and equal protection under law.

Bowersox asserted that Marylanders aren’t given an equal vote since they vote for one, two or three delegates depending on the district they live in.

“This is not equal,” Bowersox said. “Three to one isn’t even close.”

He added that Maryland is an “anomaly” compared to other states in its use of both single- and multi-member House districts rather than one or the other.

Article III, Section 3 of the Maryland Constitution requires that delegate districts be nested within senatorial districts, and stipulates that “nothing herein shall prohibit the subdivision of any one or more of the legislative districts for the purpose of electing members of the House of Delegates into three single-member delegate districts or one single-member delegate district and one multi-member delegate district.”

Attorneys for the state argued that such a shift requires a constitutional amendment rather than a judicial ruling.

“That’s the people’s decision, whether to amend their constitution,” Solicitor General Steven Sullivan said. “And it’s not a minor consideration.”

Special Magistrate Alan M. Wilner, a retired Court of Appeals judge who is presiding over the case, indicated that the court’s power is limited when it comes to some of the issues the petitioners brought forward.

“Issues have been raised that probably need to be resolved by the legislature and the people, that the court can’t do,” Wilner said.

With the two-day trial completed, Wilner said he will be working to submit his report to the Court of Appeals, which will have the final say over the legislative redistricting challenges. He previously indicated he would aim to submit his report by April 4.

A total of four petitions were filed against the legislative map enacted by lawmakers earlier this year. All four challenges contend that some of the newly drawn districts violate Article III, Section 4 of the Maryland Constitution, which stipulates that legislative districts “shall consist of adjoining territory, be compact in form, and of substantially equal population” and respect natural and political boundaries.

One petition was brought by Dels. Mark N. Fisher (R-Calvert), Nicholaus R. Kipke (R-Anne Arundel) and Kathy Szeliga (R-Baltimore County). The three lawmakers contend that their own districts and several others violate the state constitutional requirements of compactness and respect for political and natural boundaries.

Strider Dickson, an attorney for the three Republican lawmakers, again argued Thursday that Districts 12, 21, 22, 23, 24, 27, 33 and 47 violate Article III, Section 4 because they are non-compact.

An expert for the Republican lawmakers, RealClearPolitics Senior Election Analyst Sean Trende, testified Wednesday that he compared the districts to more than 13,000 legislative districts drawn across the United States since 2002 and found that District 12 stood out as being particularly non-compact.

“If District 12 is compact, there is no such thing as a compact district,” Dickson said Thursday. “It is an incredibly convoluted shape. I don’t even know how to describe it.”

In urging Wilner to find the districts unconstitutional, Dickson outlined the ways he believes that various Maryland legislative districts violate the constitutional requirements for compactness and respect for natural boundaries, such as District 27’s jump over the Patuxent River in an area without a bridge.

Dickson added that the state’s assertion of legislative privilege prevented the petitioners from following through on their charge that additional districts were unconstitutional.

Wilner questioned whether Trende’s comparison to legislative districts from elsewhere in the United States is helpful, given Maryland’s unusual geography. He also noted that there are various constitutional requirements for redistricting in addition to compactness, like population equality, and that sometimes those requirements clash.

“Compactness is important because it’s in our constitution, but it isn’t the whole,” Wilner said.

Assistant Attorney General Andrea Trento argued that the legislative map isn’t an illegal partisan gerrymander, and said Democrats could have further pushed their advantage if they had wanted to.

“It’s a pretty poorly executed gerrymander if that’s what they were trying to do,” Trento said.

Two additional petitions to the state legislative map wrapped up their arguments before Wilner Wednesday: Petitioner David Whitney, an Anne Arundel County resident, took issue with the way the Broadneck Peninsula was divided among multiple districts in the new map, particularly with District 30A including parts of the area with Edgewater and crossing both the Severn and South rivers; and Washington County Republican Central Committee President Seth Wilson argued Wednesday that District 2, which now crosses from Western Maryland into Frederick County, disregards county lines for “no good reason.”

The new legislative districts that are being challenged in court were drawn up by the Legislative Redistricting Advisory Commission, a panel convened by Senate President Bill Ferguson (D-Baltimore City) and House Speaker Adrienne A. Jones (D-Baltimore County). Jones and Ferguson were both members of that commission, along with two other Democratic legislative leaders and two Republican legislative leaders. That panel was chaired by Karl Aro, a former head of the nonpartisan Department of Legislative Services.

The map, which was then approved by the legislature in party-line votes, largely mirrors previous districts, and also shores up several potentially vulnerable Democrats who are seeking reelection.

Dickson asked Wilner to throw out the challenged districts and give the General Assembly, whose annual session is due to end on April 11, a chance to redraw the map. He also said that if the General Assembly doesn’t enact a new map, the map drawn up by the Maryland Citizens Redistricting Commission convened by Gov. Lawrence J. Hogan Jr. (R) be put in place instead.

Hogan initially asked that panel, to the extent possible, to use single-member districts in its legislative maps. Commission members couldn’t agree on whether to exclusively use single-member districts, however, and eventually landed on a compromise to use three-member delegate districts and single-member subdistricts based on population density.

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