- The Washington Times - Wednesday, June 24, 2015

Maryland’s congressional districts have routinely been ranked as among the most disjointed and gerrymandered in the country — with a federal judge once describing one district’s shape as a “broken-winged pterodactyl, lying prostrate across the center of the state.”

Although lawmakers have spoken out against the partisan redistricting process, which has secured Democrats seven of eight congressional seats in a state where Democrats outnumber Republicans 2-1, proposals aimed at amending the maps drawn up by Gov. Martin O’Malley and Democratic legislative leaders in 2011 have gone nowhere.

Now the conservative government watchdog group Judicial Watch is hoping to effect change by suing state officials on behalf of voters in each of the eight districts to require a redrawing of boundaries based on standards of compactness that the group has proposed.

“In Maryland, politicians pick their voters, which is unconstitutional,” Judicial Watch President Thomas Fitton said in announcing the filing of the lawsuit Wednesday. “The lawsuit asked the court to declare the Maryland maps unlawful and to require Maryland to redraw the maps.”

The lawsuit argues that because redistricting is a political process, its problems will never be solved by legislators.

“Because Maryland’s gerrymander is in the partisan interest of those who drew the district lines at issue, it will not be remedied without the intervention of the court,” states the lawsuit, filed in the U.S. District Court of Maryland.

This wouldn’t be the first time the district boundary plans have been challenged — albeit with little success thus far.

In 2012, the U.S. Supreme Court affirmed a lower court’s ruling upholding Maryland’s redistricting plan — which had been challenged on the basis of a change in a law that counted inmates as living at their last known addresses instead of in the district where their prison cells were located.

Another challenge was tossed out at the district court level after a judge found that the authority to address gerrymandering was “not with the judiciary but rather with the State of Maryland and the United States Congress.” However, the high court could breathe life back into the case as it agreed this month to hear an appeal, which argued that a judge was wrong to throw out the case without allowing it to be heard by a three-judge panel.

An attorney for Judicial Watch said he believes his group’s lawsuit will succeed where others have failed because it uses a different legal theory to argue against the current map.

“All the other claims have been partisan-based, in other words, based on classification, or the Equal Protection Clause that one group is being injured,” said attorney Robert Popper. “We claim that all Maryland voters are injured.”

A spokesman from Maryland’s attorney general’s office said officials had not been served with the lawsuit and as a result declined to comment.

Todd Eberly, a political science professor and coordinator of Public Policy Studies at St. Mary’s College, has a hard time seeing how the lawsuit can stand up in court.

“In the prior challenges, judges have pointed out the crazy district lines you have. They’ve said clearly they are partisan gerrymandering but they are not illegal,” Mr. Eberly said. “In Maryland, in regard to our congressional districts, there are no standards.”

Just because there is a lack of standards guiding the redistricting process doesn’t mean a judge can step in and create some, he said.

“In the absence of federal guidance, it falls to the states to do it,” said Mr. Eberly, noting that the only protections at play in Maryland are the “one person, one vote” principle and the Voting Rights Act. “It’s not for the court to say we are going to enforce this standard in absence of state or local guidelines.”

But standards are exactly what the Judicial Watch lawsuit proposes.

“Our lawsuit presents a way for the courts to approach this using an analysis that doesn’t require a certain outcome but gives you a sensible feeling for the district’s compactness,” Mr. Fitton said.

Mr. Popper puts forth a model of judging the compactness of a congressional district that he developed in the 1990s — the Polsby-Popper compactness scale. The formula works by comparing the area of the district with the perimeter length of the district. He said a judge could use the scale to send the state back to the drawing board.

Even without the lawsuit, the likelihood that politicians will address the borders is higher than ever under the leadership of Gov. Larry Hogan, who has criticized the state as having the most gerrymandered districts in the country and promised action.

“Later this year, the governor will issue an executive order that creates a bipartisan commission to examine Maryland’s redistricting process with the goal of fully reforming this process to give authority to an independent, bipartisan commission,” said Hogan spokesman Matt Clark.

Were Mr. Hogan, who just passed the five-month mark in office, to win re-election for a second term, he would be poised to do even more damage to the current boundary alignment because he would preside over the state’s next redistricting effort, Mr. Eberly said.

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