Issue Paper January 2021 Redistricting Reform in Maryland

Issue Paper January 2021
Redistricting Reform in Maryland
Executive Summary
Every ten years, the US Constitution requires that a census be taken and be used
to reapportion voters into Congressional, state and local districts. The 2020
Census results will be available by May 2021, and the redistricting in Maryland
must be completed by early 2022. The LWVMD and LWVUS have strong and long-
held positions for how to draw People-Powered Fair Maps. The Maryland General
Assembly will work on redistricting after their 2021 Session, probably in a Special
2021 Session. The League is active now and is watching the process closely. To
learn more, please read on!
Why does Redistricting Need to be Advocated for Now?
In 2020, in the face of challenges including the COVID-19 pandemic, the U.S.
Census bureau undertook a count of everyone living in the United States.
Although the Census Bureau missed the usual statutory reporting deadlines, they
expect to deliver data for the apportionment of Congressional seats among the
fifty states by spring 2021, followed later by more detailed data for states to use
to draw election districts for legislators and local offices.
The Maryland map for Congressional districts is created by the governor after
each census and introduced as bills in the Maryland General Assembly (MGA).
They must be passed by both houses and signed by the governor. 2022 will be the
first time that a Republican governor will present a plan to an overwhelmingly
Democratic legislature. Legislators may also submit their own plan, which the
governor could veto. The only standards are the federal ones for equal
population and the Voting Rights Act requirements for minority representation.
The Maryland map for legislative districts is created with additional standards
required by the Maryland Constitution. The governor presents a map to the
President of the Senate and the Speaker of the House of Delegates, who
introduce it as a joint resolution on the first day of the regular session in the
second year (2022) following the decennial census (2020). If the MGA has not
adopted another redistricting plan by the 45th day of the session, the governor’s

plan as presented becomes law. No hearing is required. In 2002 and 2012, when
the governor and legislative majority were of the same party, this is what
occurred. When interviewed later about the 2011 process, former Governor
O’Malley said: “Our country would be best served by doing away with partisan
motives in redistricting, but that wasn’t the law and that wasn’t the reality within
which we did redistricting.” We expect that the situation will be different in 2022.
Now, ten years later, the MGA has made no announcement about the process
they intend to follow for Congressional or legislative redistricting. However,
Governor Hogan has issued an executive order creating a multi-partisan 2021
Citizen Redistricting Commission.
In 2004 the League of Women Voters of Maryland studied and reached the
following consensus position on Maryland’s redistricting process.
Support for:

   1. A state redistricting process and standards that promote fair and effective
      representation in the state legislature and House of Representatives with maximum
      opportunity for public scrutiny.
   2. An independent commission as the preferred redistricting body. The membership of
      the redistricting commission should:
          o be multi-partisan
          o include unaffiliated voters
          o be geographically representative
          o not include any current state elected official
   3. Standards on which the redistricting plan is based should include:
          o a. substantially equal population;
          o b. geographic contiguity;
          o c. geographic compactness.
   4. Final approval by the General Assembly for the legislative and Congressional
      redistricting plans.
   5. An amendment to the Maryland Constitution affirming that the redistricting process
      for the House of Representatives should occur only once each ten years after the
      census.

The LWVUS has additional standards, including:
      The standards on which a redistricting plan is based must be enforceable in
      court, require substantially equal population, geographic contiguity, and effective
      representation of racial and linguistic minorities, provide for the promotion of
      partisan fairness, preservation and protection of “communities of interest”, and
      respect for boundaries of municipalities and counties. Compactness and
      competitiveness may also be considered as criteria so long as they do not

conflict with the above standards. The standards must explicitly reject protection
      of incumbents and preferential treatment for a political party, through such
      devices as considering party affiliation, voting history and candidate residence.

There are two strategies for bringing Maryland law into alignment with the LWV
position; amend the Constitution and/or improve the redistricting process.
Strategy 1: Amending the Constitution
In previous sessions of the MGA, we have supported a constitutional amendment
to establish a multi-partisan redistricting commission for the purpose of drawing
both Congressional and legislative district lines that included many of the
recommendations of a special Redistricting Reform Commission that was
appointed by Governor Hogan in 2014. In 2020, we supported the Fair Maps Act
sponsored by Senator Mary Washington and Delegate Jheanelle Wilkins that
would have created standards for Congressional districts that mirror those of our
state legislative districts and provided additional protections for the diverse
communities of Maryland particularly, but not limited to, racial, ethnic, economic,
social, cultural, geographic, or historic identities along with requiring transparency
in the map drawing process.
Delegate Michael Malone Delegate Michael Malone has filed the same two bills
for many legislative sessions, both calling for the Maryland Constitution to be
amended. For 2021, HB399, is Legislative Districts – Standards and the second
(HB410) is Congressional Districts – Standards (Anti-Gerrymandering of the
Maryland’s Congressional Districts). These are the only bills calling for MD
Constitutional amendments for redistricting; note that there is no senate cross-
filed bill.
Both of these bills come before the Rules and Executive Nominations Committee
(Chair Anne Healey), but previous similar bills did not get out of committee. In
2020, bills were co-sponsored strictly on party lines.
Strategy 2 Improving the Redistricting Process
On the federal level, the LWV supports and lobbies in favor of H.R.1/S.1 For The
People Act to improve the functioning of representative democracy in the U.S.,
including combating voter suppression and in favor of independent redistricting
commissions. However, the lead sponsor of H.R. 1, Maryland’s Representative

John Sarbanes, represents District 3. His district is deemed to be one of the most
gerrymandered in the entire country and has been described by a federal judge as
“reminiscent of a broken-winged pterodactyl, lying prostrate across the center of
the state”.1 The fact that the lead sponsor for H.R. 1 comes from a highly
gerrymandered district represents a vulnerability for H.R. 1, as detractors of the
bill can point to the poor example in the sponsor’s own state. A commitment to
improving the process for determining districts for all states would strengthen
federal initiatives such as H.R. 1.
A lawsuit that challenged the partisan gerrymandering of yet another district,
District 6, made it to the Supreme Court, supported by the LWVMD as a ‘friend of
the court.’ The Supreme Court ruled in 2019 that partisan gerrymandering was
not under the jurisdiction of federal courts and dismissed the case.
In Maryland, Senator Cheryl Kagan pre-filed SB72, cross-filed with HB344 by
Delegate Marc Korman, entitled Open Meetings Act (OMA) – Requirements for
State Agencies and Local Boards of Elections (Maryland Transparency Act of
2021). Similar bills in previous years have generally been successful. Explicit
inclusion of the Governor’s Citizen Redistricting Commission into these bills would
improve the process by requiring notification, transparency, live and archived
video of the proceedings, prompt filing of minutes, et al.
In Maryland in 2021, the Democratic Party controls both houses in the MGA and,
as long as they have a large enough majority to override a gubernatorial veto,
therefore controls the final redistricting maps. Many leaders say that they agree
with fair and open redistricting but give various reasons for opposing it when it
comes to themselves giving up some power:
    • We should not unilaterally disarm.
    • When the Republican states stop gerrymandering, then we will too.
    • We have too slim a margin in the [federal] House of Representatives to risk
      losing our majority.
    • This system is good for us.
Most states leave redistricting up to their legislators. However, over the past
twenty years the trend has been moving toward the LWV position, with Virginia in

1
https://www.baltimoresun.com/opinion/editorial/bs-ed-0312-gerrymandering-20180308-story.html

2020 being the eighteenth state to adopt a commission, even if all of them are
not entirely independent of the legislature.
The 2021 Executive Order creating the Citizen Redistricting Commission for
Maryland generally aligns with the membership, process and standards of the
LWVMD Position. However, it doesn’t address when the maps will be produced.
The unprecedented missing of deadlines by the Census Bureau in apportioning
Congressional seats based on the 2020 Census has made the setting of timelines,
even as late as January 2021, impossible. However, since it does seem likely that
Maryland will still be apportioned eight Congressional seats, and since there is no
requirement that a Congressional candidate live in their district, producing a final
Congressional map early in 2021 doesn’t seem urgent.
On the other hand, finalizing the legislative maps as soon as possible is important.
The Maryland Constitutional requirement (Article 3, Section 9) that candidates for
the MGA live in their district for at least six months before the General
Gubernatorial Election (on November 28, 2022) and that the ballots be prepared
by the State Board of Elections no later than forty-five days before the Primary
Gubernatorial Election (on June 28, 2022), gives impetus to completing the
legislative map in 2021.
Maryland’s redistricting process after the 2010 census was the opposite of
transparent and the resultant maps met few of the League’s standards. In 2011,
the Governor called a Special Session of the MGA from October 17-20 to consider
his Congressional map. It was adopted the first day, even though significant other
business was also conducted. Governor O’Malley described his map as “fair and
balanced.”i There were statements by legislators at the time that this map would
“dilute the voting strength of African-American and Latino minorities,“ and
Republicans attacked the plan as “gerrymandering designed to make GOP Rep.
Roscoe Bartlett vulnerable.” For 2021, the League is strongly advocating for fairer
maps so that Maryland can have “one person, one vote” for the next ten years.
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ii
 RealClearPolitics - Politics - Oct 17, 2011 - Redistricting special session begins in Maryland