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Top court’s last decision shows where to draw the line on redistricting

If the past is indeed prologue, Maryland’s top court will soon be asked to strike down the state’s newest legislative-district map — and the Maryland Court of Appeals will be constitutionally bound to consider the challenge.

Larry S. Gibson, Professor of Law at the University of Maryland Francis King Carey School of Law

All it takes to compel the high court to hear the case is a petition brought by a registered voter, any registered voter, in the state.

The Court of Appeals, which has original jurisdiction over such challenges, has been called upon to review a redistricting map every 10 years since 1982.

“There’s always going to be somebody who’s not happy,” said M. Albert Figinski, the attorney who successfully challenged the state’s redrawn map in 2002 on behalf of two incumbent state senators. “Just as the sun comes up in the east, there have been challenges to the plan.”

The question, then, is how the judges will rule when a challenge is inevitably brought to the courthouse door.

On the one hand, in 2002, “the court made it clear that they will not interfere with a redistricting plan on the grounds it was political,” said Larry S. Gibson, an election law expert at the University of Maryland Francis King Carey School of Law. “Political gerrymandering, from the court’s perspective, is not something they will interfere with.”

On the other hand, the Court of Appeals will not be swayed by arguments that the redrawn districts serve laudable public policy goals, such as increasing minority representation, or that they should be struck down because they preserve Democratic dominance in the General Assembly.

“I think [the 2002] case made clear what the Constitution makes clear: The criteria in the Constitution cannot be simply ignored,” said Figinski, who represented Sens. Norman R. Stone Jr., D-Baltimore County, and J. Lowell Stoltzfus, R-Somerset, Wicomico and Worcester.

“You cannot willy-nilly cross jurisdictional lines” when redrawing districts, added Figinski, now with the Law Offices of Peter G. Angelos PC in Baltimore.

The court said in 2002 that it first looks to determine whether, on its face, the plan meets federal and state requirements.

Click on the proposed House of Delegates map to see a larger version

If the court perceives that the plan deviates from those requirements, as it did in 2002, the burden shifts to the state to prove otherwise.

The court will uphold the redrawn districts only if the state can show they meet the Maryland Constitution’s requirements — contiguous, compact, of substantially equal population, and give due regard to natural boundaries and political subdivisions — and that they comply with applicable federal laws, such as the Voting Rights Act.

Gov. Martin O’Malley submitted his proposed 2012 map to the General Assembly on Wednesday, the first day of the legislature’s 90-day session. The General Assembly has 45 days, or until Feb. 24, if it wants to pass an alternative to O’Malley’s proposal.

Some Republicans have said the party will submit an alternative to O’Malley’s proposal soon.

“We hope that alternative will be given due diligence by the legislature,” said Del. Anthony J. O’Donnell, R-Calvert and St. Mary’s, the House of Delegates minority leader.

However, Senate Judicial Proceedings Committee Chair Brian E. Frosh said it is all but certain the governor’s plan will become law.

Click on the proposed Senate map to see a larger version

Forty-five days is simply not enough time for both the Senate and House to develop, debate and pass an alternative to an extant redistricting proposal that already has significant support in the General Assembly, said Frosh, D-Montgomery.

“You’ve got to have a significant majority to get a bill passed quickly,” Frosh added. “If you’re fighting the governor to boot, it doesn’t happen.”

After 45 days, if the General Assembly does not adopt a different plan, the governor’s map is accepted automatically — and the court challenges can begin.

Challenge to come

At least one challenge to the governor’s map already has been promised. The Fannie Lou Hamer-Political Action Committee will “definitely” take the state to the Court of Appeals, said Radamase Cabrera, a spokesman for the voting-rights group.

Cabrera said the governor’s proposal “dilutes” the black vote in the way it would divide counties, in violation of the state constitution and the Voting Rights Act.

For instance, the majority-black legislative districts 21 and 27 in Prince George’s County would include parts of majority-white Anne Arundel, Calvert and Charles counties, under the governor’s proposal, Cabrera added.

“The state of Maryland does not know how to deal with the fact it is becoming majority minority,” Cabrera said of O’Malley’s plan.

The governor’s office rejects the allegation, stating that the proposal “enhances minority voting rights.”

Whether the map will draw other challengers is still uncertain.

Figinski predicted that advances in technology will spur more people to get involved this year than in 2002.

“Given the computer systems these days, it’s a lot easier to make arguments for something different,” Figinski said. “But the question is whether the arguments will prevail.”

O’Donnell, the House Republican leader, said it is too early in the 45-day process to contemplate a lawsuit by the GOP.

“We need to let the process play out,” said O’Donnell, who represents Calvert and St. Mary’s counties. “We need to wait and see until this process plays a little bit.”

Another Republican, Del. Cathleen M. Vitale of Anne Arundel County, agreed with O’Donnell on the question of timing. However, Vitale voiced concern at a hearing last month that the governor’s proposal would split her Severna Park district, potentially reducing her chances for re-election.

Splitting counties

The high court’s prior decisions do permit the creation of legislative districts that split counties — but only to a point, and only if such divisions are necessary to ensure districts have substantially equal populations or to comply with federal law.

In 1992, the Court of Appeals upheld a redistricting map that contained 18 county crossings. However, the court said then-Gov. William Donald Schaefer had come “perilously close” to submitting an unconstitutional map.

In 2002, then-Gov. Parris N. Glendening crossed the constitutional line with a map that had 22 county crossings. The court redrew the map itself and allowed for 14 crossings.

Gov. Martin O’Malley’s proposed map contains 13 county crossings, which Gibson said he suspects was the result of more than just legislative design.

“I would imagine they tried to adhere to what they thought would be accepted by the court,” Gibson said.

Figinski declined to comment on the prospects for any challenge to O’Malley’s map but agreed the 2002 decision would be the court’s yardstick.

The state, in defense of its 2002 map, argued that the constitutional provision of not splitting political subdivisions was not absolute and could be trumped if lawmakers had a “rational goal” for not complying.

The Court of Appeals rejected that argument.

“These [constitutional] requirements are mandatory and not ‘suggestive,’ as asserted by the state,” Chief Judge Robert M. Bell wrote for the 6-1 court. “The constitution trumps political considerations. Politics or non-constitutional considerations never trump constitutional requirements.”

Law professor Justin Levitt, who tracks states’ redistricting efforts nationwide, said Maryland is one of a handful of jurisdictions whose top court holds fast to the constitutional mandate instead of deferring to the political judgments of elected officials.

“The Maryland court has been more eager than many of its sister states to give teeth to [state] constitutional requirements,” said Levitt, who teaches at Loyola Law School Los Angeles and maintains a website called All About Redistricting. “When the state constitution says you have to give attention to boundaries, it means it.”

The governor’s office, in an apparent nod to the Court of Appeals’ 2002 admonition, stated Wednesday that O’Malley’s map “enhances minority voting rights, pays exceptional attention to respecting natural and political boundaries, and results in districts that are compact, contiguous, and protects communities.”

Who redraws the map?

Even if the governor’s map is successfully challenged, the process of redrawing it is unlikely to be the same as the last time.

The Court of Appeals in 2002 took the extraordinary step of redrawing the map itself, explaining that state elections were imminent and the governor and General Assembly did not have to time to draw, consider and enact a redistricting map that would pass constitutional muster.

The court therefore retained Karl S. Aro and Nathaniel Persily to construct districts that complied with the state constitution and federal law and disregarded political considerations.

Aro, then as now executive director of the Maryland Department of Legislative Services, advises legislators on redistricting issues and uses the 2002 decision as a starting point.

“Anybody doing this needs to pay attention to what the court said,” Aro said.

Persily, a Columbia University law professor, declined to comment, saying he was under orders from another state’s court system not to discuss publicly the issue of redistricting because he was doing related consulting work for that state.

If it were to strike down Maryland’s redistricting map this year, the high court would presumably not create its own map but send the governor and General Assembly back to the drawing board, because time is not of the essence. The next election for General Assembly members is not until 2014.

Judge Irma S. Raker, since retired, wrote in the sole dissent to the 2002 opinion: “I recognize, of course, that the people of this state have a right to, and a strong interest in, a constitutional redistricting map and that the court is the final arbiter of the constitutionality of any plan. In my view, however, a plan is drawn properly and ideally by the Legislature and only secondarily by this court.”