Republican claims that Maryland Democrats drew an illegally gerrymandered map are on trial in Anne Arundel County

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Separately on Tuesday, the Maryland Court of Appeals — which hears challenges to Maryland’s legislative redistricting map affecting state lawmakers — moved the state’s primary election from June 28 to July 19 as the dispute continues.

The outcome of the Maryland congressional map lawsuit is likely to set the bar for future redistricting legal challenges in a state that has a history of drawing congressional districts to heavily favor Democrats. Whatever the outcome, the challenge is likely heading to the Maryland Court of Appeals.

Both cases were brought by Fair Maps Maryland, an anti-gerrymandering group aligned with Gov. Larry Hogan (R); the right-wing activist group Judicial Watch; and Republican voters and state lawmakers, including Del. Neil C. Parrott (R-Washington), candidate for Congress in Maryland’s 6th district. The cases, which are heard together, are Szeliga vs. Lamone and Parrott v. Lamone.

“We are cautiously optimistic that the good guys will prevail, said Doug Mayer, spokesman for Fair Maps Maryland. “Gerrymandering is a stain on this state and on this country, and it’s one of the main reasons why Washington, D.C., is increasingly filled with complete idiots, or worse. And it’s of both sides of the aisle.

Congressional maps must be redrawn every 10 years after the decennial census to account for population changes. Maryland Democrats were under pressure to maintain their partisan edge in the congressional delegation because their party’s control of Congress hangs by a thread. Additionally, Republicans are maximizing their own partisan advantages in red states — further raising the stakes for the outcome of the Maryland map legal challenge and other similar challenges across the country.

In Republican-controlled states, including North Carolina and Pennsylvania, Democrats successfully challenged cards that favored the GOP on the grounds that they were unfair partisan gerrymanders, leading state high courts to impose new cards. The U.S. Supreme Court left those maps in place — which Mayer found to be an encouraging sign for Maryland’s challenge. Several other challenges are pending in the blue and red states.

“I wouldn’t bet against plaintiffs, that state courts have actually been more aggressive than the Supreme Court in stamping out partisan gerrymandering,” said Mark Graber, a professor at the University of Maryland School of Law. .

The map adopted by Democrats in Maryland creates seven secure Democratic seats and one competitive seat anchored on the East Coast, putting the state’s only Republican in Congress, Rep. Andy Harris, at risk. Only one Democrat voted with Republicans against the map in December, and Democrats in the General Assembly overruled Hogan’s veto.

Republicans have accused Democrats of drawing convoluted district lines that disrespect communities of interest — the 3rd Congressional District, for example, runs across the state from suburban DC in Montgomery County to the Susquehanna River at the Pennsylvania border. Republicans also accused Democrats of reconfiguring the entrenched 1st District on the state’s east coast to skip the Chesapeake Bay and absorb more Democratic voters in Anne Arundel County, in the ultimate hope of weeding out Map Harris. By those lines, President Biden would have won the 1st District by less than 1 percentage point in 2020, giving Democrats an opening.

Democrats have admitted to this behavior in the past. During the 2012 redistricting round, former Gov. Martin O’Malley (D) admitted in federal court that his party redrawn the 6th District to make it easier to elect a Democrat and eliminate the Republican incumbent. A Republican has not won in this district since the 2012 map was enacted.

The Maryland Congressional map passed before the 2012 midterms led to some of the most publicized gerrymandering challenges in the nation, going all the way to the United States Supreme Court. But in 2019, the High Court said the federal courts were not the proper avenues for partisan claims, leaving it to state courts instead.

The decision paved the way for the case to be heard by Judge Lynne A. Battaglia in Anne Arundel County this week.

In this case, Republicans argue that the Congressional map violates Maryland’s constitution protections for free elections and free speech, as well as its Equal Protection Clause – arguing that Democratic lawmakers drew the map to dilute intentionally the votes of Republican voters at the ballot box.

But partisan gerrymandering in congressional maps is not explicitly prohibited in Maryland’s constitution, and the constitution’s rules for drawing state legislative districts — that they must be compact, among other things — do not extend to congressional districts. These are among the reasons the Maryland attorney general’s office argues that Republican voters don’t have a case.

Citing previous Court of Appeals decisions, the state argued that the redistricting process is inherently political and that the General Assembly is authorized to pursue political goals, even to protect incumbents, if it so chooses.

“Partisan gerrymandering has been condemned as ‘inconsistent with democratic principles’…but that does not mean that the Maryland Constitution provides a mechanism to address grievances over congressional redistricting,” the attorney general’s office wrote. State in its motion to dismiss. Battaglia allowed the case to proceed on all but one claim.

The state has argued that partisan gerrymandering will remain legal at the congressional level until federal lawmakers pass legislation to ban it — which congressional Republicans fought against — or Maryland amends its constitution to ban it.

In court on Tuesday, however, Battaglia drew a distinction between partisan gerrymandering and “extreme” partisan gerrymandering. She acknowledged that some use of partisan information in map making is “inevitable”. But the judge seemed willing to explore whether, in the Maryland case, the map-makers crossed a line.

She asked the witness called by the plaintiffs, Sean Trende, elections analyst at RealClearPolitics, if he thought the map passed by the General Assembly would have “adverse effects” on Republicans, and if he thought the gerrymandering Maryland supporter was “extreme”.

He said yes on both counts.

“It was clearly drawn with the intent to harm the Republican Party’s chances of electing anyone to Congress,” said Trende, who recently served as a special master called upon by the Supreme Court of Virginia to redraw his congressional and legislative cards.

Trende said a clear pattern emerged in his analysis of the map: Map-drawers “crackled” the strength of Republican voters by removing them from the redder districts and placing them in the blue districts – where they don’t. are not likely to affect the outcome of an election.

He said it’s “extremely unlikely” that, in a state where Republicans and Democrats are concentrated in certain areas, map-makers adhering to traditional redistricting criteria would come up with a map in which Biden won all eight districts — unless it’s just a coincidence.

“It’s just too neat to tell that story,” Trende said. “The most likely thing we would accept in the social sciences given all of this data is the partisan considerations that have dominated in crafting this map.”

David Lublin, an American University professor who specializes in redistricting, said the fact that Democratic voters are dominant in Maryland could pose a challenge to plaintiffs who argue the party has an unfair advantage on the map. Democrats make up just over half of the state’s registered voters, while Republicans make up about a quarter of them.

Still, Lublin said, “the state is going to have a hard time defending that this isn’t a partisan gerrymander because the lines are so strange” — even given the geography — and it may be more effective to simply assert that partisan gerrymander is not illegal.

That leaves it to Battaglia — and, ultimately, the Maryland Court of Appeals — to interpret whether the constitution’s broad protections for free elections and free speech extend to protect against the “extreme” partisan gerrymandering, Lublin said.

“Other states have picked up on this, and that may encourage the Court of Appeals to be more active in resolving this issue, especially since Maryland’s congressional lines are so strange,” Lublin said.

The lawsuits over the legislative districts are scheduled to go to trial on March 22.

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