Gov. Larry Hogan on Monday ordered the creation of a nonpartisan emergency commission to draw new boundaries for a congressional district in western Maryland that a panel of federal judges has struck down as so severely gerrymandered to ensure a Democrat’s election that it violates Republican voters’ constitutional right to political association.
The nine-member panel will have until March 4 to propose a more evenly drawn 6th Congressional District that protects the rights of all voters regardless of party, according to Hogan’s executive order. After a three-week public comment period, the panel will have until April 2 to certify a final redistricting map.
Hogan’s call for the panel comes amid Maryland Attorney General Brian E. Frosh’s announced plans to appeal by Dec. 3 the three-judge U.S. District Court panel’s decision to the Supreme Court. The panel has stayed its decision – and its own order for a newly drawn district — pending resolution by the high court.
“Free and fair elections are the very foundation of American democracy and the most basic promise that those in power can pledge to the citizens we represent,” Hogan, a Republican, said in a statement announcing the commission. “This unanimous ruling (by the three-judge panel) was a victory for the overwhelming majority of Marylanders who value fairness and balance in our political system – who are fed up with the divisive partisan politics that are used to suppress any honest debate or real competition of ideas.”
Hogan has appointed retired U.S. District Judge Alexander Williams, a Democrat, and Walter Olson, a Republican and senior fellow at the CATO Institute of Constitutional Studies, to co-chair the Emergency Commission on 6th Congressional District Gerrymandering. The governor has also named to the panel Ashley Oleson, administrator of the League of Women Voters, who is not affiliated with a political party.
The governor will select from among public applicants the other six members – two Democrats, two Republicans and two not registered with either the Democratic or Republican parties.
Hogan’s executive order states that “the threat of federal judicial intervention in the drawing of the 6th Congressional District necessitates proactive state measures to remedy the unconstitutional boundaries…. Correcting this serious constitutional injury with new lawful maps will enable a large number of Maryland voters to more fully participate in congressional elections.”
The three judge struck down the 6th Congressional District, saying that Maryland’s Democratic-led government which redrew it following the 2010 census “specifically targeted voters in the 6th Congressional District who were registered as Republicans and who had historically voted for Republican candidates.”
The judges noted that the redrawn map removed 66,000 GOP voters from the district and added 24,000 Democratic voters in their places.
“The state meaningfully burdened the targeted Republican voters’ representational rights by substantially diminishing their ability to elect their candidate of choice,” wrote 4th U.S. Circuit Court of Appeals Judge Paul V. Niemeyer, who was joined by U.S. District Judge George L. Russell III.
The panel’s third judge, U.S. District Judge James K. Bredar, wrote a concurring opinion. Frosh, a Democrat, has been defending the controversial district in court as part of his duty to defend the duly passed laws of Maryland.
In its decision, the panel addressed the issue – as yet unresolved by the Supreme Court – of whether a congressional or legislative district can be so heavily partisan gerrymandered as to violate the minority party’s First Amendment right to political association. The case was in fact back before the three-judge panel after the Supreme Court in June declined the GOP voters’ bid for an emergency court order that the 6th Congressional District be redrawn in time for the Nov. 6 general election.
“To be sure, the Supreme Court has not directly addressed allegations that a redistricting plan has violated the First Amendment, but it has indicated clearly that such a challenge is not precluded by its decisions or by the Constitution,” Niemeyer wrote.
“To be sure, citizens have no constitutional right to be assigned to a district that is likely to elect a representative that shares their views,” he wrote.
“But they do have a right under the First Amendment not to have the value of their vote diminished because of the political views they have expressed through their party affiliation and voting history,” Niemeyer added. “Put simply, partisan vote dilution, when intentionally imposed, involves the state penalizing voters for expressing a viewpoint while, at the same time, rewarding voters for expressing the opposite viewpoint. This targeting of a citizen’s viewpoint is typical of First Amendment violations in other contexts.”
Maryland’s then-governor, Democrat Martin O’Malley, and the Democratic-controlled General Assembly redrew the 6th District following the 2010 census to include a significant swath of Democrat-rich Montgomery County. Republicans said the move was a deliberate effort to dilute their vote from the state’s five western counties, thereby ensuring the election of a Democratic representative over the then-GOP incumbent. (The lawsuit initially challenged districts statewide but was amended to focus solely on the 6th District.)
U.S. Rep. Roscoe Bartlett, the Republican who had represented the district since 1993, lost his re-election bid to John Delaney, a Democrat, in 2012. Delaney handily won re-election in 2014 and 2016. Delaney chose not to run for re-election in 2018 in order to pursue the Democratic presidential nomination in 2020.
David Trone, a Democrat, was elected Nov. 6 to succeed Delaney.
The three-judge panel rendered its decision in O. John Benisek et al. v. Linda H. Lamone et al., No. 13-cv-3233.