Critics of Maryland’s congressional redistricting are promising lawsuits. Legal experts say they face an uphill battle

BALTIMORE — Critics of Maryland’s newly redrawn congressional maps promised to once again file lawsuits to block the reconfigured electoral districts, which Republicans blasted as a blatant partisan power grab by Democrats. But fighting partisan gerrymandering in the courts now appears even more difficult than a decade ago, when opponents fought a losing battle against Maryland’s last redistricting plan.

For years, critics of partisan gerrymandering — the practice of carefully drawing electoral maps to give one party an outsized advantage in elections — pinned their hopes on the federal courts, hoping that judges would strike down as unfair and undemocratic maps that heavily skewed power into the hands of the majority.

Those hopes were dashed, however, when cases challenging the 2011 congressional maps in Maryland and North Carolina ended in a 2019 landmark U.S. Supreme Court ruling that partisan gerrymandering was purely a political matter and not something for the federal courts to police.

That decision, according to election law and redistricting experts, leaves fewer options for those hoping to overturn the maps Maryland Democrats passed into law last week over the objections of Republican Gov. Larry Hogan and others.

“The only challenge that’s really left right now (in federal courts) is if you can make a race-based claim — alleging that the maps violate the Voting Rights Act or are intentionally discriminatory to Black or other minority voters,” said Michael Li, senior counsel at the Brennan Center for Justice at New York University’s School of Law. That could plausibly include a claim that Maryland lawmakers should have drawn districts in such a way to elect a third nonwhite congressperson.

Maryland Democrats hold a 7-1 advantage in the state’s congressional delegation, despite Republicans comprising a quarter of the state’s registered voters and regularly winning more than a third of the vote in statewide races. Political analysts expect the new map will allow Democrats to hold those seven seats and, in a good year for the party nationally, compete for the eighth seat, the Eastern Shore-based district held by Rep. Andy Harris.

Following the 2020 census, Maryland joined California, Hawaii, Nevada, New Mexico and Texas as the states where a majority of the population is nonwhite. Under the state’s new maps, the Prince George’s County-centered 4th District and the Baltimore-focused 7th District remain the only two districts with a majority Black electorate. Taken together, Black, Hispanic, Asian and other nonwhite voters also comprise a majority of the voters in the 5th District, which runs from Prince George’s County to Southern Maryland, although no single group makes up a majority of voters there.

During debate last week in the legislature’s special session on redistricting, Democratic lawmakers repeatedly asserted that Maryland’s new map would comply with the Voting Rights Act. Attorney General Brian Frosh, a Democrat, agreed in a legal opinion that the map complies with the act and other state and federal laws.

“The reality is the U.S. Supreme Court and the court system generally will do nothing about partisan gerrymandering at this point. They’ve made that clear,” said David Lublin, a professor of government at American University who studies gerrymandering. “Suing on the grounds that this was designed to protect and elect Democrats isn’t going to work.”

The other option might be to convince state court judges that partisan gerrymandering violates Maryland’s state constitution, an effort that hasn’t succeeded in the past but which Hogan and other Republicans have hinted at in recent weeks.

GOP Lt. Gov. Boyd Rutherford conceded a federal legal challenge will likely fail.

“I think the only recourse is going to be in state court,” Rutherford said Wednesday in an interview on WBAL-AM, “because unless you can show there’s a violation of ethnic minority rights, I think it’s hard to go into federal court.”

Maryland law lays out several criteria for drawing districts for the General Assembly seats — that they must be compact and take into account political and natural boundaries — but doesn’t include any such requirements for congressional districts.

“That may be difficult because there are no rules guiding or regulating congressional redistricting in Maryland,” said Jeffrey M. Wice, a professor and senior fellow at New York Law School. Instead, Wice said, a state-court claim would likely have to hinge on a more vague mandate in Maryland Constitution, such as a line declaring that “elections ought to be free and frequent.”

“It may be quite an uphill battle for challengers to try to knock out the (Maryland) congressional plan,” said Wice, who has worked on redistricting in New York since 1980 and consulted on redistricting issues nationally for the Democratic Party.

“The courts would have to get pretty creative with other provisions of the (Maryland) Constitution,” said Lublin, who noted that state and federal courts upheld Maryland’s more sprawling 2011 congressional map and that the new plan exactly balances population among the districts.

Even if the federal courts strike down Maryland’s map for racial reasons — either for a violation of the Voting Rights Act or because a judge rules that state lawmakers used race in an improper way in drawing districts — it wouldn’t necessarily end up helping Republicans or lead to a less gerrymandered electoral map.

That’s because federal courts would almost certainly give the Democrat-controlled General Assembly a chance to redraw the map and fix any issues. Democratic lawmakers would be expected to do so without watering down their partisan advantage in the congressional districts.

“With a Democratic legislature that has a veto-proof majority, they could easily fix any (Voting Rights Act) problem or any racial gerrymandering problem without drawing additional Republican districts,” said Nicholas Stephanopoulos, a Harvard Law School professor who’s been involved in lawsuits over partisan gerrymandering. “If Republicans sue, all you can really manage is to potentially reshuffle the districts racially but without affecting their partisan breakdown.”

But as skewed in favor of Democrats as Maryland’s political map might be, Stephanopoulos noted, aggressive partisan gerrymandering by Republicans in other states means the national patchwork of congressional districts will likely remain tilted in favor of Republicans and “a Democratic gerrymander in Maryland helps to bring the whole U.S. House into somewhat better balance.”

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