Maryland’s Unfair Congressional Map Is Back in Court

Partisan gerrymandering case at crossroads in latest hearing

October 3, 2018

The long-running fight over partisan gerrymandering in Maryland returns to court on October 4, when a federal court in Baltimore will take up requests from both sides to decide the case without a trialHow the court rules will have a major impact on whether Maryland voters can expect fair maps in 2020 and beyond. Here’s what you need to know ahead of the hearing in Benisek v. Lamone

1.     What’s happening in Maryland?

A group of Republican voters in Maryland are challenging their state’s congressional map as a partisan gerrymander that unfairly favors Democrats. This gerrymander, they argue, violates their First Amendment right to political association and their Article I right to representation.

It’s been a long road for the Maryland voters, who first filed their case in 2013. Although this case has been pending for several years, it hasn’t yet gone to trial. Instead, it’s been moving back and forth between the three-judge panel in the federal district court in Baltimore and the U.S. Supreme Court. Most recently, the Supreme Court ruled that the plaintiffs were not entitled to have Maryland’s map redrawn for the 2018 election while they waited for the district court to rule on their claims. The Court sent the case back down so the district court could move on to dealing with the substance of the plaintiffs’ claims. 

Once the case returned to the district court this summer, the panel decided to take up the parties’ requests that it decide the case without a trial. That brings us to Thursday’s hearing.

2.    What’s the problem with Maryland’s map?

Maryland’s congressional map is a prime example of partisan gerrymandering unfairly stacking the deck in favor of one party. The plan has locked in an artificial advantage for the Democratic Party on Maryland’s congressional slate, making the map extremely unresponsive to voters. 

Maryland Democrats’ advantage is no accident. They had unilateral control over the redistricting process and used it to transform a map that more fairly represented both parties into one that has created a dependable 7-1 Democratic majority. The Democrats’ mapmakers secured this 7-1 majority by packing and cracking Republican voters. Most critically, Democrats successfully flipped the formerly Republican 6th District by removing large numbers of Republican voters and replacing them with heavily Democratic precincts from the Washington, D.C., area. They also packed Republican voters into the other reliably Republican district, the 1st. 

The voters who brought Benisek argue that this packing and cracking to minimize their voting power is a kind of unconstitutional political retaliation. What’s more, Maryland’s overwhelming Democratic majority doesn’t paint a full picture of the state’s politics. Although registered Democratic voters outnumber Republicans in Maryland, the state is home to several centers of Republican power and even elected a Republican governor in 2014.

3.     What will oral argument be about?

The district court has already told the challengers what they need to prove to win their case: (1) that Democratic lawmakers drew the lines with an intent to undercut Republican voters’ ability to put their candidates into office, (2) that this harm actually occurred, and (3) that the mapmakers’ bad intent was the cause of the harm. Now, the parties are asking the panel to decide whether the facts of the case are clear — and beyond that, that there’s no need for a trial. At the district court on Thursday, Maryland voters will have the chance to explain to the court that the facts add up to a win for them; the defendants will try to do the same. 

The plaintiffs believe they’ve clearly fulfilled all three parts of the district court’s test. As they argue, their evidence shows that Democratic lawmakers intended to dilute Republican votes, that they succeeded in doing so when they transformed the 6th District into a safely Democratic one, and that the district wouldn’t have flipped if gerrymandering hadn’t occurred.

Meanwhile, Maryland claims that the state should win because the voters have failed to show that Democratic lawmakers had retaliation in mind when they drew the maps or that Republicans were harmed as a result. The defendants also contend that, due to how long the voters waited to seek relief, redrawing the maps before 2021 shouldn’t even be an option on the table anymore. 

4.    What’s ultimately at stake?

What the three-judge panel decides to do after Thursday’s oral argument will affect whether and how quickly Maryland voters can expect to see a fair congressional map. In order to have a new, fairer map in place for the 2020 elections, Maryland voters need the Supreme Court’s final word on the current map’s legality very soon. 

If the court rules in favor of either side, the losing side can appeal to the Supreme Court immediately. That leaves open hope that the Supreme Court could weigh in by June 2019. If the court instead decides that the case needs to go to trial before it can rule, the parties will have to wait until the conclusion of the trial to appeal, potentially pushing a Supreme Court hearing to the fall of 2019 or even the spring of 2020. In that case, a ruling might not come until June 2020. As a practical matter, that may make it hard to redraw the map in time for the 2020 election.

But what happens here will also set a precedent for when Maryland’s maps are redrawn in 2021. With no rule against partisan gerrymandering, Maryland voters may see an even harsher gerrymander next cycle. In fact, the Democratic candidate for governor, Ben Jealous, promised as much recently. Courts can take a strong step toward preventing that outcome by striking down the current map and setting some ground rules for the next round.

(Image: Chip Somodevilla/Getty)