Judge Throws Out Congressional Map, Orders Legislature To Try Again Next Week

By Bennett Leckrone, Maryland Matters

March 25, 2022

Senior Judge Lynne A. Battaglia blocked Maryland’s new congressional map Friday, finding that the plan violates the Maryland Constitution and Declaration of Rights — and unfairly favors Democrats.

Battaglia sent the redistricting plan back to the General Assembly and ordered lawmakers to come up with a new plan by next Thursday.

Battaglia found that the new map violates Article III, Section 4 of the Maryland Constitution. That provision has historically been interpreted to apply to legislative districts and stipulates that “each legislative district shall consist of adjoining territory, be compact in form and of substantially equal population” and that districts respect natural boundaries and the boundaries of political subdivisions.

Battaglia also found that the map violates Articles 7, 24 and 40 of the Maryland Declaration of Rights. Those provisions provide that elections be “free and frequent,” equal protection and free speech respectively.

In her memorandum opinion and order, Battaglia wrote that the plaintiffs had proved that partisanship was the predominant factor over traditional redistricting criteria like compactness when lawmakers drew the map in December. She called the plan “an outlier and a product of extreme partisan gerrymandering.”

Battaglia ordered the General Assembly to draw a new plan and set a hearing to review the new plan for next Friday at 9 a.m. She noted at a trial last week that the case would likely head to the Court of Appeals regardless of how she ruled.

Fair Maps Maryland, an anti-gerrymandering group with ties to Gov. Lawrence J. Hogan Jr. (R) that supported one of the lawsuits challenging the map, filed by state Del. Kathy Szeliga (R-Baltimore County), lauded the decision in a statement.

“To call this a big deal would be the understatement of the century,” The statement from Fair Maps Maryland reads. “Judge Battaglia’s ruling confirms what we have all known for years — Maryland is ground zero for gerrymandering, our districts and political reality reek of it, and there is abundant proof that it is occurring. Marylanders have been fighting for free and fair elections for decades and for the first time in our state’s shameful history of gerrymandering, we are at the precipice of ending it.”

Battaglia’s ruling comes after a four-day trial last week for a pair of lawsuits brought against the congressional map. One lawsuit, Szeliga v. Lamone, is brought by Republican voters from all eight of Maryland’s congressional districts and contends that the new map violates the state constitution by intentionally diluting Republican votes. The other lawsuit, brought by Del. Neil C. Parrott (R-Washington) and the national conservative group Judicial Watch, also contends that the new map violates Article III, Section 4 of the Maryland Constitution.

Attorneys for the plaintiffs pointed in particular to the 1st Congressional District in arguing that the map violates the Maryland Constitution. The 1st District was previously solidly Republican and included portions of northern Harford, Baltimore and Carroll counties with the Eastern Shore, but under the enacted plan crosses the Chesapeake Bay Bridge to include parts of central Anne Arundel County with the Eastern Shore.

That district is represented by U.S. Rep. Andrew P. Harris, Maryland’s lone congressional Republican, and under the map enacted by lawmakers was set to become significantly more competitive for Democrats. Strider Dickson, an attorney for the plaintiffs in the Szeliga case, argued that the reconfiguration could result in an 8-0 partisan breakdown favoring Democrats.

Sean Trende, a senior elections analyst for RealClearPolitics who testified on behalf of the plaintiffs in the Szeliga case, said at last week’s trial that he analyzed the map enacted by lawmakers and found that Republican voters were removed from the 1st District with “near surgical precision” in the challenges map. Trende also said he ran thousands of simulations of potential district lines and found Maryland’s enacted district shapes to be outliers when it came to being non-compact.

The state called two witnesses during the four-day trial in arguing that the map doesn’t unlawfully dilute votes: Allan Jay Lichtman, a history professor at American University, and former Secretary of State John T. Willis, both Democrats. Lichtman testified that the new congressional map is more compact than the map enacted in 2011 in arguing that the new district lines don’t constitute a gerrymander.

Democratic lawmakers argued when they enacted the map during a special session in December that compactness was secondary in congressional redistricting compared to population equality and compliance with the federal Voting Rights Act. Willis said at the trial that lawmakers also need to consider the historical district boundaries when adjusting for population to avoid disrupting representation.

Maryland Solicitor General Steven Sullivan argued at the trial that the state constitution is silent on congressional redistricting, and that any change to the state constitution should come via the amendment process rather than via judicial decisions. Deputy Attorney General Andrea Trento argued that the framers of the state constitution had assumed that some degree of politics would be involved in the redistricting process since they entrusted the legislature with the task.

The challenges to the congressional map honed in on state law rather than federal law after the U.S. Supreme Court opted not to weigh in on state-level partisan gerrymandering in Benisek v. Lamone, a case which centered around Maryland’s 6th Congressional District as it was drawn in 2011.

Battaglia, a former Court of Appeals judge, called the legal challenges a “case of first impression” during the trial last week and said congressional maps hadn’t previously been challenged in state courts.

The congressional map adopted by lawmakers during a December special session was drawn up by the Legislative Redistricting Advisory Commission, a panel convened by Senate President Bill Ferguson (D-Baltimore City) and House Speaker Adrienne A. Jones (D-Baltimore County). Jones and Ferguson were both members of that panel, alongside two other Democratic legislative leaders and two Republican legislative leaders. The Legislative Redistricting Advisory Commission was chaired by Karl Aro, a former head of the nonpartisan Department of Legislative Services.

A map drawn up by the Maryland Citizens Redistricting Commission, a panel convened by Hogan, didn’t advance out of committee during the December special session — although Republican lawmakers unsuccessfully attempted to resurrect the map via amendments. That panel included three Republicans, three Democrats and three unaffiliated voters.

Hogan vetoed the congressional redistricting plan enacted by lawmakers in December, but Democrats hold a veto-proof majority in both the House of Delegates and the state Senate and overrode his veto.

Hogan has appointed five of the top court’s current judges, including his former chief legislative officer, Chief Judge Joseph M. Getty. The Court of Appeals recently pushed Maryland’s 2022 primary back from June 28 to July 19.

This story will be updated.

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