- - Wednesday, March 28, 2018


If he were with us today, Elbridge Gerry would have no doubt filed an amicus brief with the U.S. Supreme Court in behalf of Democrats in Maryland to defend the way they drew the congressional districts expressly to transform the Republican-friendly 6th Congressional District into a reliably Democratic district.

Gerry was the early 19th-century Massachusetts governor who drew the first legislative district to favor a political party. The shape of the district was likened to the shape of a salamander in a cartoon in the old Boston Gazette. Thus was the portmanteau “gerrymander” born.

Gerrymandering is not exclusively a Democratic sin. Republicans do it, too. It’s part of the relentless attempt to gain partisan advantage. In one analysis, Maryland is tied with North Carolina as the most gerrymandered states in the country. Democrats enjoy supermajorities in the Maryland General Assembly, so they want to draw the state’s congressional districts for maximum political advantage, effective after the 2010 census. Maryland’s 3rd Congressional District, in the view of one federal judge, resembles “a broken-winged pterodactyl, lying prostrate across the center of the state.” Salamander, meet pterodactyl.

“Gerrymandering and underhanded political rigging of voting districts stifle free speech and deprives our citizens of real electoral choices,” says Larry Hogan, the Republican governor of Maryland, “which is why [my] administration will never stop fighting for nonpartisan redistricting reform.” Mr. Hogan advocates a nonpartisan redistricting commission.

He supports the legal challenge to the new Maryland redistricting, which was argued this week in the Supreme Court in a case titled Benisek v. Lamone. A ruling is expected in June, likely with another redistricting case, brought by Democrats in Wisconsin.

The Supreme Court, which has thrown out racially gerrymandered districts said to be stacked against minorities, has resisted second-guessing purely partisan gerrymandering. That may be about to change.

The justices declined in March to hear an appeal from Pennsylvania Republicans who want to reverse the ruling by the state Supreme Court, dominated by Democrats, which eliminated congressional districts drawn by Republicans and drew districts to suit the court.

Martin O’Malley, the former Democratic governor of Maryland whom Mr. Hogan succeeded, committed candor in the case last spring, acknowledging in a deposition that drawing a new, partisan 6th Congressional District was intended to make it safe territory for Democrats. “Yes,” he testified, “this was clearly my intent.”

The district, which had been mostly in rural northwest Maryland, was redrawn to include certain heavily Democratic suburbs of Washington. The new district has 62,000 fewer Republicans and 33,000 more Democrats.

Just how effective the gerrymandering was is visible in the election results. The 6th Congressional District went from re-electing a longtime Republican incumbent, Rep. Roscoe Bartlett, by 28 percentage points in 2010 to ousting him by 21 points two years later.

Whether Mr. O’Malley’s candor, demonstrating that sometimes politicians can tell the truth in spite of themselves, was the tipping point in arguments for the justices to reconsider their hands-off approach to partisan gerrymandering, is not yet clear. Whether the court’s injecting itself into the redistricting process — which is inherently political — is a good idea is another matter entirely.

Hans von Spakovsky, a former member of the Federal Election Commission, writing in The Milwaukee Journal Sentinel, warned against judicial meddling in redistricting.

He cited Justice Samuel Alito’s dissent in a North Carolina redistricting case warning against transforming the federal courts “into weapons of political warfare” that “invite the losers in the redistricting process to seek to obtain in court what they could not achieve in the political arena.”

If the court decides that “proof of intent to act for political purposes” in redistricting is unconstitutional, wrote Mr. von Spakovsky, now a legal fellow at the Heritage Foundation, “they will be turning the courts into just such weapons and usurping the authority of the political branches of government.”

Even more unsettling, it’s far from clear what the justices would substitute for the current method of drawing congressional districts. State supreme courts, whose members often are appointed by partisan governors, are increasingly partisan themselves in their enthusiasm for outcome-based adjudication.

The experience in states such as California and Colorado, with supposedly independent, nonpartisan redistricting commissions of the sort Mr. Hogan advocates for Maryland, demonstrates how politicians and political parties attempt to stack the commissions with like-minded partisans.

Sometimes the status quo, as flawed as it might be, is better than the alternatives. That’s often how it became the status quo.

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