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Just-released opinion reveals Md. high court approved redistricting by single vote

Court issues decision explaining April order

Del. Mark Fisher, a Calvert County Republican, debates the legislature’s redistricting maps during the previous General Assembly session. Fisher was one of the lawmakers who went to court to oppose the Democratic reapportionment plan. (The Daily Record/Bryan Sears)

Maryland’s top court approved the General Assembly’s redrawn legislative districts last spring by just a single vote and over dissenting judges who said the majority failed to protect Marylanders from unconstitutionally “extreme partisan gerrymandering” by the Democratic-led legislature.

On April 13, then-Court of Appeals Chief Judge Joseph M. Getty signed an order approving the legislative redistricting. The order stated that a majority of the high court concurred in the approval but did not mention how close the vote was.

The order also stated the court would explain its decision at a later date.

That day was Wednesday.

Judge Robert N. McDonald wrote the opinion for the 4-3 majority. Getty, who hit the state’s mandatory judicial retirement age of 70 on April 14, was in dissent.

McDonald, in the court’s 112-page opinion, rejected a constitutional challenge by Republican lawmakers to about a dozen of the state’s 47 redrawn districts.

The GOP legislators did not meet the heavy burden of showing the districts violated the Maryland Constitution’s mandate that they be compact, contiguous and mindful of crossing jurisdictional lines and natural boundaries, the court said.

Rejecting the Republican lawmakers’ argument, the high court’s majority said a district’s odd shape does not render it invalid, noting that Maryland itself and many of its counties are misshapen. In addition, a district does not lose its contiguity because it crosses a river, the court said.

“Every opinion of the court that has reviewed the substance of a redistricting plan has started from the premise that an adopted plan and the policy choices reflected in it are to be accorded a presumption of validity,” McDonald wrote.

“In sum, the court’s role is to assess the plan that has been adopted according to the constitutional process and to consider any contention that the adopted plan fails to comply with the Constitution,” added McDonald, a retired judge sitting by special assignment. “It is not to determine whether there is another plan, either proposed or that the court can conjure, that would be better.”

The Court of Appeals also held that state legislators have “legislative privilege” regarding their communications with staff and advisers in the redistricting process and need not disclose these conversations to those challenging the enacted redistricting plan.

“(C)onfidentiality is a core feature of the drafting process before a bill is filed,” McDonald wrote.

“As with other legislation, the issue is not whether a sponsoring legislator’s motives were noble or nefarious, but what does the legislation actually provide?” McDonald added. “The sponsoring legislator’s motives or communications with staff are not probed – or even considered relevant; after all, it is the body, not the individual legislator, that ultimately adopts legislation.”

Neither the Republicans’ attorney, Strider L. Dickson, nor the Maryland Attorney General’s Office — which defended the redistricting map at the high court – immediately returned messages Thursday seeking comment on the court’s opinion.

McDonald was joined in the opinion by Judges Shirley M. Watts, Michele D. Hotten, and Brynja M. Booth.

Getty, in dissent, said the court deferred too much to the General Assembly and what he called its flagrant goal of protecting the Democratic majority with districts drawn without constitutional regard for compactness, continuity, jurisdictional lines and natural boundaries.

“Armed with granular data on Maryland’s households and microtargeting of voters, the General Assembly can use mapping technology that surgically carves the most precise partisan districts,” wrote Getty, whose continued participation in the case was by special assignment.

Meanwhile, “this court stands idly by and, with the intentionally designed and sharply gerrymandered district lines, sentences the voters of this state to death by a thousand partisan paper cuts,” Getty added in his 110-page dissent. “Slowly, but surely – unchecked by this court – extreme partisan gerrymanders will become increasingly more prevalent and durable.”

Getty also criticized as “a regression from public transparency” the court’s extension of legislative privilege to communications between legislators and advisers that occurred before the introduction of and debate on the redistricting legislation.

“I cannot think of anything in the majority opinion that is more consequential than its decision to allow the General Assembly to formulate districting plans in secret under the guise of legislative privilege,” Getty wrote. “For this districting cycle, and those to follow, the assertion of absolute, legislative privilege will keep the public in the dark as to how the General Assembly designs legislative districts.”

Judges Jonathan Biran and Steven B. Gould joined Getty’s dissent.

Gould, in a separate dissent, said legislators may assert legislative privilege in refusing to provide the Republican challengers with details of their redistricting-related communications. However, the court should be allowed to infer from the refusal that the communications would have shown the districts were redrawn in an unconstitutional manner, Gould wrote.

“A proper balance of the competing interests can be struck by taking a page from the civil litigation playbook when the Fifth Amendment right against self-incrimination is invoked,” Gould added. “A civil litigant is permitted to assert the Fifth Amendment privilege to justify a refusal to provide discovery, but not without consequence. One consequence is that the jury will be entitled to draw adverse inferences.”

Getty and Biran joined Gould’s dissent.

The Republican legislators who challenged the redistricting map were Dels. Mark N. Fisher, of Calvert County; Wayne A. Hartman, of Wicomico and Worcester counties; Nicholaus R. Kipke, of Anne Arundel County; Kathy Szeliga, of Baltimore and Harford counties; and Brenda J. Thiam, of Washington County.

The Court of Appeals issued its decision in In the Matter of 2022 Legislative Districting of the State, Nos. 21, 24, 25, 26 and 27, September Term 2021.