Behind the Lines - Maryland
Introduction - A Tale of Two Commissions
Redistricting hasn't always been a contentious process in Maryland. Until the 1990s, Maryland's congressional districts were often competitive with control of several seats alternating between Republicans and Democrats. That changed in the 2000s redistricting cycle when the Democratic Governor and General Assembly opted to press their political advantage and enacted a pro-Democrat gerrymander that packed Republicans into the Eastern Shore’s 1st District and Western Maryland’s 6th District, resulting in a 6-2 map favoring Democrats. It was in this map which the more contorted, serpentine districts that Maryland has since become known for really began to take shape.
In 2011, Democrats, led by then-Governor Martin O'Malley, pushed their advantage even further, packing more Republicans into the 1st District by extending it from the Eastern Shore to Carroll County and taking the 6th District south into the more Democratic Washington, D.C. suburbs to create a 7-1 map. When that map was challenged in federal court as a partisan gerrymander, Gov. O’Malley testified that his goal when creating the plan was to:
use the redistricting process to change the overall composition of Maryland's congressional delegation to 7 Democrats and 1 Republican . . . .
The 2011 map challenge was ultimately unsuccessful, leaving the Democratic gerrymander in effect for the full decade. But in this latest cycle, Maryland's Republican Governor Larry Hogan pledged to deliver fair maps to Maryland for the first time this century. On January 12, 2021, Gov. Hogan signed an executive order creating the Maryland Citizen Redistricting Commission (MCRC), a 9-member body of Maryland voters - 3 Republicans, 3 Democrats, and 3 Independents - tasked with drawing fair and non-partisan congressional and legislative redistricting plans for the state through a transparent and publicly-accessible process. The Commission's finalized plans would then be introduced into the General Assembly.
After months of public hearings and input from across the state, the MCRC finalized their maps in early November, with the congressional plan being adopted on an 8-1 vote. The lone Democratic Commissioner who voted against the map cited a lack of public testimony regarding the Commission's decision to keep Baltimore City whole in a single congressional district. By and large, MCRC's final congressional plan was met with praise from redistricting stakeholders and observers on both sides of the aisle.
Citizen's Commission Proposal
In response to Governor Hogan's creation of the Maryland Citizen Redistricting Commission, the Democrat-controlled General Assembly convened its own redistricting panel - the Legislative Redistricting Advisory Commission (LRAC) - a panel of 6 state legislators: 4 Democrats and 2 Republicans. LRAC released four congressional redistricting proposals in November 2021, all of which retained Maryland's non-compact and serpentine district configuration while making changes to make the 1st District, anchored on the Eastern Shore, much more competitive. LRAC ultimately adopted its final congressional proposal on November 23 on a party line vote, which was introduced in the General Assembly as H.B.1/S.B.1 on December 6, 2021. This plan extended the 1st Congressional District from the Eastern Shore and across the Chesapeake Bay into the Annapolis and Baltimore suburbs.
New Precedent in the Old Line State
- Free Elections Clause (Md. Decl. Rts. art. 7)
- Equal Protection Clause (Md. Decl. Rts. art. 24)
- Free Speech Clause (Md. Decl. Rts. art. 40)
- Redistricting criteria (Md. Const. art. III, § 4) ("[e]ach legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions.”)
State Democrats argued the Maryland Constitution and Declaration of Rights did not contain judicially manageable standards for evaluating partisan gerrymandering claims, citing the U.S. Supreme Court’s rejection of similar claims brought under the U.S. Constitution in its Common Cause v. Rucho ruling. They also asserted the article III, § 4 redistricting criteria only applied to state legislative districts, not congressional districts.
On March 25, 2022, the circuit court issued its opinion permanently enjoining the enacted plan from being used in future elections as an unconstitutional partisan gerrymander.
First, the court held that based on its language, purpose, and legislative intent, the “legislative district” standards of article III, § 4 were applicable to evaluate the enacted congressional plan. The court’s analysis hinged on the term “legislative district” being undefined in the Maryland Constitution and Declaration of Rights, thereby making it ambiguous as to whether it applied to General Assembly districts and/or congressional districts.
The court concluded the term included both General Assembly districts and congressional districts because when the current version of § 4 was adopted in 1972, the legislature was aware of its ability to restrict or expand its scope of application but expressly chose “legislative districts” rather than specifically including or excluding one type of district. The court also noted the framers of the provision recognized that requirements like compactness and respect for political subdivisions were intended to prevent political gerrymandering.
Notably, the court also held the § 4 standards were applicable to the review of congressional redistricting plans on an alternative basis under the Declaration of Rights’ Free Elections and Equal Protection Clauses, which each implicate the use of § 4’s "standards" to determine violations thereof. This is akin to what the Pennsylvania Supreme Court did in its 2018 partisan gerrymandering ruling, League of Women Voters v. Commonwealth .
Next, the court held partisan gerrymandering claims were properly justiciable under the Declaration of Rights provisions at issue. The court explained the Free Elections Clause has been broadly interpreted to apply to legislation that infringes upon the right of political participation by Maryland citizens, while the state's Equal Protection Clause has been interpreted to embody a greater right than its federal counterpart and guarantees that similarly situated citizens are treated equally under the law. These guarantees could be enforced by virtue of a “standards” clause like § 4.
The Equal Protection and Free Speech Clauses could also be enforced by applying strict scrutiny to the plan and requiring the state to present a compelling interest to justify its differential treatment of voters and burdens on the right to vote based on political affiliation.
Applying these standards, the court concluded the enacted plan was an “extreme gerrymander that subordinate[d] constitutional criteria to political considerations.” The court explained the plan’s satisfaction of the contiguity and population equality requirements under article III, § 4 was clear, but it fell far short of complying with the compactness and due regard for political subdivisions criteria, which were specifically intended to prevent political gerrymandering.
The court placed much weight on the analyses performed by the plaintiffs’ expert witness, Sean Trende, which applied the four “most common compactness metrics” to the enacted plan – the Reock score, the Polsby-Popper score, the Inverse Schwartzberg score, and the Convex Hull score* – and compared it to Maryland’s former congressional plans and current congressional plans from across the country.
These analyses revealed that Maryland’s enacted plan were “quite non-compact” compared to prior Maryland congressional maps and produced some of the worst compactness scores in the nation, including “the worst Inverse Schwartzberg score in the last 50 years.”
[*Explanations of these compactness measures can be found below.]
Similarly, the court emphasized that maintaining political subdivisions is a “mandatory consideration in . . . constitutional redistricting” that “reflect[s] . . . the importance of counties” as the “basic governing units” in Maryland. When enacting the 2021 plan, however, the court found the State failed to “even give lip service to the historical and constitutional significance of their role in the way Maryland is governed.” The enacted plan crossed county lines a “historically ‘high number’” of times, only less than the number in the 2002 and 2012 congressional plans.
The court’s conclusion that the plan was a “gross outlier” and the product of "extreme partisan gerrymandering" was further supported by Mr. Trende’s analysis of over 95,000 simulated redistricting plans drawn in accordance with the § 4 criteria, which resulted in only 0.14% or 134 maps in which President Biden would have carried all eight congressional districts in the 2020 election.
The court went on to explain how the plan also independently violated the asserted provisions of the Declaration of Rights:
- it subordinated traditional neutral criteria to partisanship in order to suppress the voice of Republican voters in violation of the right to participate in Congressional elections under the Free Elections Clause;
- it substantially and adversely impacted Republican voters and candidates without a sufficiently compelling State interest to justify those impacts in violation of the Equal Protection Clause;
- and it diluted the voting strength of Republican voters in order to increase the political clout of Democratic voters without a sufficiently compelling justification in violation of the Free Speech Clause.
Having struck down the plan as unconstitutional, the court ordered the General Assembly to develop a new congressional plan that complied with article III, § 4 by March 30, 2022. Maryland’s highest court, the Maryland Court of Appeals, assumed jurisdiction over the case on April 1, but the case was ended on April 4 following a deal between Governor Hogan and the General Assembly. In exchange for the General Assembly voluntarily dropping its appeal of the case, Governor Hogan signed the General Assembly’s remedial congressional plan into law.
The agreement was truly a compromise - the Governor secured a more fair and compact congressional map and the General Assembly avoided the risk of the circuit court's groundbreaking legal rulings being affirmed by the state's higher courts. The remedial plan was certainly more compact, but the agreement likely resulted in a map that still falls short of the standard set by the circuit court.
Comparing the Maps
Unlike the state courts in North Carolina and Pennsylvania's partisan gerrymandering cases, the circuit court's order only directed the General Assembly to enact a remedial plan which complied with the article III, § 4 "standard." Given that the original plan was held to have violated only the compactness and due regard for political subdivisions criteria, the General Assembly's remedial plan focused on improving those two areas while still advancing their partisan goals as much as possible, judicial review of which was foreclosed by the Governor and General Assembly's agreement to end the case. To demonstrate the full context of the remedial plan, we will compare the invalidated LRAC map, the enacted remedial map, and the MCRC's map using the following criteria:
• Splitting of political subdivisions such as Counties and Cities • Compactness • Partisan Fairness
Click through the three maps below for more information on the districts of each plan.
Maryland_Enacted_Web_Map
Left- Thrown-Out LRAC, Right-Compromise Enacted Map
Splits of Political Subdivisions
The images below show both the Census Designated Places that are split on the bottom left and the counties that are split on the top right. It also includes the number of counties that are split and the number of segments those split counties are divided into.
Compactness
The charts below represent the average score of each of the 4 main compactness tests used by the Maryland Courts. Read more below about the individual compactness tests at the end.
*Calculated using ESRI Web Mercator Projection
Partisan Fairness
The images below represent the 2022 Cook Partisan Voter Index , PVI, of the districts. The darker colors are for safer seats(greater than D+10 or R+10) and lighter colors are for less safe seats (less than D+10 or R+10).
Left-LRAC, Center-Enacted, Right-Commission
Ideal Plan
The compromise plan from the Governor and the General Assembly was not perfectly compliant with the Circuit Court's mandate of compliance with the constitutional criteria from Article III, §4. The plan below is an example of a compliant plan that maximizes compactness and partisan fairness while minimizing unnecessary splits of political subdivisions.
Check out the demonstrative plan below for just one example of a plan that maximizes compactness and partisan fairness while minimizing unnecessary splits of political subdivisions.
Demonstrative Plan (created for this Story Map)
- This plan has better compactness scores than the Enacted or LRAC plans while being virtually identical scores to the Commission plan.
- This plan has only 3 county splits and 10 segments. (Enacted= 6 Splits with 15 segments)
- This plan has only 5 city splits Rosedale, Pikesville, Cantonsville, Jessup, and Silver Spring. (Enacted= 35 splits)
- This plan would create a "safe" republican seat in the Eastern Shore, a "lean" republican seat in the Western Panhandle, and a Tossup seat based in Anne Arrundle/Coastal Baltimore County that was won by Trump in 2016 and Biden in 2020.
Compactness Measures
Check out the different compactness measures for the 2012-2020 Maryland Third District, often referred to as one of the worst gerrymandered districts in the country.
Polsby-Popper
Ratio of the Area of the district to the Area of a circle with a circumference equal to the perimeter of the district
Values range from 0 to 1 with larger values being more compact districts.
This test benefits districts that have smooth borders and more regular shapes while penalizing districts with jagged boundaries.
Inverse-Schwartzberg
Similar to Polsby-Popper, this is the Ratio of the Perimeter of the district to the Circumference of a circle whose area is equal to the area of the district.
The larger the value the LESS compact districts.
This test, like Polsby-Popper, is especially senstive to jagged boundaries while benefiting dense, low-area districts.
Reock
Ratio of the Area of the district to the Area of the minimum bounding circle encompassing the district.
Values range from 0 to 1 with larger values being more compact.
This test benefits small districts with more 'regular' shapes, especially circles, while penalizing sprawling shapes.
Convex-Hull
Similar to Reock, this is the Ratio of the Area of the district to the Area of the minimum bounding polygon encompassing the district.
Values range from 0 to 1 with larger values being more compact.
This test also benefits small districts with more 'regular' shapes but gives more weight to district area than Reock.
