Judge throws out congressional map, orders legislature to try again next week

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Senior Judge Lynne A. Battaglia blocked Maryland’s new congressional map Friday, finding that the plan violates the Maryland Constitution and Declaration of Rights — and unfairly favors Democrats.

Battaglia sent the redistricting plan back to the General Assembly and ordered lawmakers to come up with a new plan by next Wednesday.

In a 94-page ruling, Battaglia found that the new map violates Article III, Section 4 of the Maryland Constitution. That provision has historically been interpreted to apply to legislative districts and stipulates that “each legislative district shall consist of adjoining territory, be compact in form and of substantially equal population” and that districts respect natural boundaries and the boundaries of political subdivisions.

Battaglia also found that the map violates Articles 7, 24 and 40 of the Maryland Declaration of Rights. Those provisions provide that elections be “free and frequent,” equal protection and free speech respectively.

In her memorandum opinion and order, Battaglia wrote that the plaintiffs had proved that partisanship was the predominant factor over traditional redistricting criteria like compactness when lawmakers drew the map in December. She called the plan “an outlier and a product of extreme partisan gerrymandering.”

Battaglia ordered the General Assembly to draw a new plan and set a hearing to review the new plan for next Friday at 9 a.m. She noted at a trial last week that the case would likely head to the Court of Appeals regardless of how she ruled.

Battaglia’s order could have a particularly meaningful impact on the 1st congressional district, a former Republican stronghold, which the Democrats drew to become considerably more competitive.

Gov. Lawrence J. Hogan Jr. (R), who has been working to take politics out of the redistricting process since taking office in 2015, called Battaglia’s decision a “historic milestone” and called on the General Assembly to enact the proposed map from the Maryland Citizens Redistricting Commission, which he convened last year.

“For nearly eight years, we have been fighting to end the gerrymandering monopoly that has for too long been a shameful legacy of our state,” Hogan said. “This ruling is a monumental victory for every Marylander who cares about protecting our democracy, bringing fairness to our elections, and putting the people back in charge. It puts in plain view the partisan, secretive, and rigged process that led to the legislature’s illegal and unconstitutional maps.”

Fair Maps Maryland, an anti-gerrymandering group with ties to Hogan that supported one of the lawsuits challenging the map, filed by state Del. Kathy Szeliga (R-Baltimore County), lauded the decision in a statement.

“To call this a big deal would be the understatement of the century,” the group said.

Four of the eight plaintiffs spoke to reporters outside the State House after the ruling.

“This decision is a victory for every Marylander,” said Szeliga. “On this 338th anniversary of Maryland’s founding, this decision is a rebirth for our state.” 

James Warner, a Vietnam War POW who lives in Anne Arundel County, said he fought in uniform to uphold a system that recognizes the consent of the governed, “and that is not gerrymandering.” 

Del. Christopher T. Adams (R-Middle Shore) said the map reflected a desire among Democrats to remove the only Republican in the state’s congressional delegation, Rep. Andrew P. Harris. He said the voices of Eastern Shore voters “were imperiled by this process.” 

The court declined to order the state to use the map drawn by Hogan’s Citizens Legislative Redistricting Commission and Szeliga would not predict whether that map would ultimately end up being used. “I personally do not trust the legislature to do this again,” she said. “They [Democrats in the legislature] assured us what they did was constitutional.” 

Another plaintiff, Del. Neil C. Parrott (R-Washington), recalled a failed referendum effort and a legal challenge against the prior congressional map that made it to the Supreme Court.

“Now we have, in the state courts, a decision that says this really does violate the Maryland constitution,” said Parrott, who is seeking a rematch with U.S. Rep. David J. Trone (D) this year.

It isn’t clear yet what the General Assembly or the attorney general’s office, which defended the state’s map in court, will do next.

“Our office is currently reviewing the decision,” Raquel Coombs, a spokesperson for Attorney General Brian E. Frosh (D), said in an email. “No decision on appeal.”

In a joint statement, House Speaker Adrienne A. Jones (D-Baltimore County) and Senate President Bill Ferguson (D-Baltimore City) said they were “disappointed” by Battaglia’s decision. The pair wrote that they believe the ruling “is not representative of the historic and long-standing legal requirements and precedent,” that they considered when drafting the map.

“When the General Assembly approved our new congressional map in early December, we believed then, as we do now, that the new districts upheld the letter of the law by enacting fair boundaries that reflect demographic shifts and keep as many Marylanders as possible in their current district in a Congressional map that was approved by more than 64% of the voters,” Jones and Ferguson wrote.

The legislative leaders said they will review the court’s order, and said the ruling “establishes brand new legal standards for the drawing of the Maryland Congressional map.”

One Democrat with knowledge of the map-drawing process said lawmakers did not discuss contingency plans or what they would do if the court overturned their congressional plan.

‘We will win this race no matter what’

Battaglia’s ruling comes after a four-day trial last week for a pair of lawsuits brought against the congressional map. One lawsuit, Szeliga v. Lamone, is brought by Republican voters from all eight of Maryland’s congressional districts and contends that the new map violates the state constitution by intentionally diluting Republican votes. The other lawsuit, brought by Parrott and the national conservative group Judicial Watch, also contends that the new map violates Article III, Section 4 of the Maryland Constitution.

Attorneys for the plaintiffs pointed in particular to the 1st Congressional District in arguing that the map violates the Maryland Constitution. The 1st District was previously solidly Republican and included portions of northern Harford, Baltimore and Carroll counties with the Eastern Shore, but under the enacted plan crosses the Chesapeake Bay Bridge to include parts of central Anne Arundel County with the Eastern Shore.

That district is represented by Harris, Maryland’s lone congressional Republican, and under the map enacted by lawmakers was set to become significantly more competitive for Democrats. Strider Dickson, an attorney for the plaintiffs in the Szeliga case, argued that the reconfiguration could result in an 8-0 partisan breakdown favoring Democrats.

Sean Trende, a senior elections analyst for RealClearPolitics who testified on behalf of the plaintiffs in the Szeliga case, said at last week’s trial that he analyzed the map enacted by lawmakers and found that Republican voters were removed from the 1st District with “near surgical precision” in the challenges map. Trende also said he ran thousands of simulations of potential district lines and found Maryland’s enacted district shapes to be outliers when it came to being non-compact.

Heather Mizeur, a former state delegate and Democratic contender in the 1st District primary, said in a statement that she is confident in her ability to take on Harris regardless of how the district lines are drawn.

“I am so excited by the support we are generating in every corner of this district — regardless of what map you use,” Mizeur said. “We will win this race no matter what the final district looks like, as Marylanders have had enough of Andy Harris putting far-right partisan politics ahead of common-sense solutions for our communities.”

R. David Harden, a foreign policy strategist who is running as a moderate in the Democratic primary for the 1st District, slammed gerrymandering in a statement.

“Three consecutive cycles of litigation and chaos are proof that our system just isn’t working,” Harden wrote. “Our citizens lose connection with and confidence in the political process as a result. We must take redistricting out of the hands of self-interested politicians. This court’s decision does just that.”

Harris’ home in Baltimore County had been drawn out of the 1st District under the General Assembly’s original plan. The U.S. Constitution requires representatives to live in the state they represent, but not the same district. Harden’s home in Carroll County likewise wasn’t in the 1st District in the redistricting plan.

In a social media post, Harris praised the court’s decision.

“The court got it right,” Harris wrote. “The hyperpartisan gerrymandering in Maryland is unconstitutional.”

The state called two witnesses during the four-day trial in arguing that the map doesn’t unlawfully dilute votes: Allan Jay Lichtman, a history professor at American University, and former Secretary of State John T. Willis, both Democrats. Lichtman testified that the new congressional map is more compact than the map enacted in 2011 in arguing that the new district lines don’t constitute a gerrymander.

Democratic lawmakers argued when they enacted the map during a special session in December that compactness was secondary in congressional redistricting compared to population equality and compliance with the federal Voting Rights Act. Willis said at the trial that lawmakers also need to consider the historical district boundaries when adjusting for population to avoid disrupting representation.

Maryland Solicitor General Steven Sullivan argued at the trial that the state constitution is silent on congressional redistricting, and that any change to the state constitution should come via the amendment process rather than via judicial decisions. Deputy Attorney General Andrea Trento argued that the framers of the state constitution had assumed that some degree of politics would be involved in the redistricting process since they entrusted the legislature with the task.

The challenges to the congressional map honed in on state law rather than federal law after the U.S. Supreme Court opted not to weigh in on state-level partisan gerrymandering in Benisek v. Lamone, a case which centered around Maryland’s 6th Congressional District as it was drawn in 2011.

Battaglia, a former Court of Appeals judge, called the legal challenges a “case of first impression” during the trial last week and said congressional maps hadn’t previously been challenged in state courts.

The congressional map adopted by lawmakers during a December special session was drawn up by the Legislative Redistricting Advisory Commission, a panel convened by Jones and Ferguson. Jones and Ferguson were both members of that panel, alongside two other Democratic legislative leaders and two Republican legislative leaders. The Legislative Redistricting Advisory Commission was chaired by Karl Aro, a former head of the nonpartisan Department of Legislative Services.

A map drawn up by the Maryland Citizens Redistricting Commission, a panel convened by Hogan, didn’t advance out of committee during the December special session — although Republican lawmakers unsuccessfully attempted to resurrect the map via amendments. That panel included three Republicans, three Democrats and three unaffiliated voters.

Hogan vetoed the congressional redistricting plan enacted by lawmakers in December, but Democrats hold a veto-proof majority in both the House of Delegates and the state Senate and overrode his veto.

Hogan has appointed five of the top court’s current judges, including his former chief legislative officer, Chief Judge Joseph M. Getty. The Court of Appeals recently pushed Maryland’s 2022 primary back from June 28 to July 19.

Bruce DePuyt and Josh Kurtz contributed to this report.

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