Reapportionment and Redistricting: The Great Betrayal

 

 

 

The Governor has appointed a reapportionment commission of flive members: his patronage secretary;President Miller, Speaker Busch. a businessman. and a former Republican delegate. safely ‘out of the loop’ as as respects his party’s leadership, The commissionis in effect a Society for the Protection of Democratic Incumbents,

 

Was this the constitutional design? We think not. Article 3. section 5 of the Maryland

 

Constitution does empower the Governor to scnd to the legislature a reapportionment plan (but not one for congressional redistricting). The purposc of this provision was not to aggrandize the great power of Maryland”s governor by allowing him to ‘new model’ the legislature in his image.

 

Examination of the antecedents of the constitutional provisions suggests that the powers given him were to be exercised in a different spirit.

 

The present constitutional provisions on reapportionment were enacted in 1970 and 1972. and were inspired by the abortiveconstitution rejected by the electorate in 1968. Section 3.05 of the 1968 draft constitution contemplated a commission on legislative redistricting with five members-a chairman appointed by the governor. the President of the Senate. the Speaker of the

House. and the minority leaders of both houses. The Governor was  required to submit the Commission’s plan to the General Assembly without modif ication.

The Constitutional Convention Commission. whose draft was modified by the constitutional convention. had vested the power to transmit a plan in the governor. Its purpose. however. as explained in the commentary to section 3,03 or its draft. was not to aggrandize gubernatorial power but merely to “insure periodic redistricting and reapportionment”. the Commission recognizing that “the legislative branch of government can most appropriately deal with this issue.” (Report. p,128) The Commission’s proposal. according to its study documents. was drawn from a Model State Constitution promulgated by the National Municipal League. This contemplated a hybrid system in which the recommendations of “an independent nonpartisan board” were to be transmitted to the legislature by the Governor together with his recommendations of departures from its recommendations.

 

Four reapportionments have been conducted since the adoption of the 1970 language.The first was invalidated because of noncompliance

by the Governor with the hearing requirement. the Court of Appeals also revising his plan to provide for more compact districts. In his Tentative Report and Preliminary Recommendations the Special Master. Judge Hall Hammond noted the Reock test. “Where the district area includes less than 40%0, of the smallest possible circumscribing circle. the district is non-compact” (7) and the Schwartzberg test “comparing the ratio of the perimcter of the district with the perimeter of a circle of equal area. the perimeter of the district being measured by drawing lines between “Tri-Junctions” at the points where the

constituent precincts intersect the perimeter of the district. .. where the ratio of compactness’ exceeds 1.67 to 1. the district should be deemed non-’compact:’ (at 8). The plaintiffs submitted an affidavit of an obscure University of Maryland political scientist. a certain Parris N. Glendening.

to demonstrate that the Baltimore County districts they challenged failed these mathematical tests. Judge Hammond relied on the Glendening anidavit in revising the challenged district: “it flunks the Schwartzberg test and it barely passes the Reock circle test.” (pp.8-9).

 

 The second. involving a plan transmitted by Governor Hughes, wasu nci devised by a panel presided over by State Treasurer Willium S . James. a not notably partisan Democrat. and including the President and Speaker and two laypersons. a Democrat and a Republican.  and was upheld in

Matter of Legislative Districting, 299 Md. 658 (1984) .. The third districting plan. prepared by a commission including three laypersons and the President and Speaker and transmitted by Governor Schaeler. was upheld. though with great reluctance because of its disregard ofsubdivision boundaries and by a divided court, in Legislative Redistricting Cases, 331 Md. 574 (1992). The fourth redistricting plan. that of Governor Glendening. was devised by a highly partisan live-member body including the Secretary of State. the President and Speaker. a Democratic Montgomery County Councilman (now the County Executive) and a Worcester County Commissioner, and was invalidated as failing to display due regard for subdivision boundaries in

Matter of Legislative Redistricting,370 Md. 312(2002), there being 22 multi-county Senatorial districts as against 18 in (he Schaefer plan .Faithful in all things to the heritage of the Glendening administration. Governor O’Malley has elected to follow its example. There is an entirely different approach which might be taken: one based on uniform principles. applied with consistency from reupportionment to reapportionment.

What follows involves. save in one respect. the application of   inc ontestable principles. The exception is that an effort is made to induce the Supreme Court to ‘bend’ the equal population principle so as

allow a House of Delegates plan. prepared under a permanent and uniform

formula, the method of equal proportions in use for apportionment of the House ofRepresentatives, that allows a delegate for each county simi lar to that upheld by the Court of Appeals in Hughes v. Maryland Committee.

241 Md. 471 (1966). Such a plan would result in disparities of 2.5 to 1 between the largest and smallest district. but would not systematically overrepresent rural areas or any region. since both the largest and smallest districts would be rural. Such a plan would accord the nine counties of the Eastern Shore in total precisely the same number of delegates as they would be entilled to on a strict population basis . A plan of this nature in the State of Wyoming with disparities of up to 3.25 to I was upheld i
in Brown v. Thomson, 462 U.S.835 (1983). .

Even without this feature. the adoption of intelligible standards relating to compactness, avoidance of unnecessary multi-county districts, and respect for independent cities and traditional county groupings would greatly constrain the gerrymandering process. minimize the influence of the governor and mass media. and strengthen the relationships of constituencies  with their legislators. The total scheme is set forth bela\\’,',

below:

Whereas the Supreme Court of the United States in Reynolds v. Sims,

377 U.S.533, 578-80 recognized the propriety of consideration of local subdivisions in legislative reapportionment and

 

Whereas Article 3, Section 4 of the Maryland Constitution mandates “due regard for the boundaries of local suhdivisions.” and Whereas Article 2, Section I of the Maryland Constitution contempates a bicameral legislaure with “distinct branches,” and

Whereas a plan of reapportionment allocating at least one delegate to each county and allocating remaining delegates among suhdivisions according to the method of equal proportions in use for the United States House of Representatives was upheld in Hughes v. Maryland Committee, 241 Md.471, 486-87, see also In re Legislative Redistricting, 331 Md. 514,600 and

Whereas local legislation and county control of education are more pronounced in Maryland than in any other state, :md the boundaries and corporate existence of all but two Maryland counties have heen largely constant for more than 200 years and

Whereas systems that are totally perverse in terms of democratic functioning can be totally consistent with a principle of strict numerical equality among districts, such as at large elections for all seats, proportional representation such as that in Weimar Gennany and the Third and Fourth French Repuhlics, and systems pervaded with partisan gerrymandering :lI1d

 

Whereas a system in which legislators do not have continuous conhlcts with their constituents because of shifting boundaries enhances the need for large camp:lign funds and also enhances the influence of the mass mcdia by diminishing knowledge of candidates by their constituents and

 

Whereas allocation of the House of Delegates among the counties according to the method of equal proportions would not result in systematic over-representation of rural areas, some of which would be among the largest constituencies, :and such a system would minimize partisan gerrymandering and maximize continuity of relationships between candidaltes and their constituents and

Whereas such a system would still require subdivisions with considembly more than 45% of the population to elect a majority of the House of Delegates and

Whereas the Supremc Court of the United States and the Court of Appeals of Maryland have evidenced increased dissatisfaction with partisan gerrymandering and increased recognition of the propriety and necessity of consideration of factors other than population equality in reapportionmcnt and

Whereas the Court of Appeals of Maryland has recognized the requirement of “compactness” in Article 2, Section 4 of the Maryland Constitution, though forswearing a numerical test for compactness in the absence of its definition hy the General Assembly, see In re Legislative Redistrictillg,

 299 Md.. 658 and

Whereas there are recognized measures of compactness which can 

prevent the grosser forms of gerrymandering, see Karcher v. Daggett,

462 U.S. 725, 756-58 and note 19 (Stevens,.J.,concurring); Reock, Measuring Compactness, 5 Midwest J. Pol. Sci. 70 (1961); Schwartzberg,”Re-Apportionment Gerrymanders and the Notion of Compactness,” 15

Minn.L. Rev.443 (1966) and these were in purt relied on by Special Master Hall Hammond in Matter of Legislative Districting, 271 Md. 320(1972)

and

 

Whereas multi-member districts frequently submerge minority representation and since their use may raise constitutional questions, they

 they are  to be avoided, see Thornburg v.Gingles,478 U.S 30 and

Whereas the Attorney General of Maryland hns recognized that in view of the requirement of Article 3, Section 4 of the Maryland Constitution relating to “adjoining territory” and “due regardfor natural boundaries”, districts crossing the ChesapeakeBay are presumptively improper, 85 Opinions of the Attorney General 16(2000)   and

Whereas it has been urged that the proper test for the validity of reapportionment is whether effective majority rule is prevented, sec

Lucas v.Forty  Fourth General Assembly, 377 U.S. 713, 754, 759 (Stew:1rt, .J.,dissenting); M. Mc Connell,The Redistricting Cases: Original Mistakes and Current Consequences, 24 Harv. J. of Law and Public Policy 103(2000), :1I1d absent action by legislatures proposing plans founded on this premise, courts will be unable to apply or revise doctrines to enforce such it test

NOW THEREFORE IT IS ENACTED AS FOLLOWS

I. The plan of districts described below complies with the principles set forth in Section 2 below, and any plan promulgated by the Governor under Article 3 ,Section 5 of the Maryland Constitution or imposed by the courts shall likewise comply with such principles

2. The following are the applicable principles of legislative reapportionment:

a) Each Senate district shall contain three House of Delegates districts

b) Ench House of Delegates district shall elect a single member

c) Scats in the House of Delegates shall be allocated

among the counties on the basis of the

method of equal proportions used in theapportionment

of the United States House of Representatives

d)Seatsin the Senate shall he allocated among counties or groups of counties according tothe method of equal proportions. For this purpose, the county with the smallest population is to be combined with the contiguous county whose addition causes the combination to most closelyapproximatebut not to exceed the average population per Senate seat before any portion of a neighboring county is added to reach the average population. The same procedure is to be followed with the next smallest county, and each remaining county, not

thus included in a multi-county district, whose population, taken alone, is less than the average popuhltion per Senate sent. Counties whose total population exceeds a multiple of the average population per Senate seat are to receive the number of seats ascertained by dividing the ‘average population per Senate seat into the total population before any excess

area is included in a district overlapping county lines, to the end that the number of districts overlapping county lines is minimized.

 

c) Within each county, boundaries of districts for both the Senate mld the House of Delegates are to be drawn so that no district’s circumference, me~lsured

by connecting junctions of prccinct lines with the perimeter is more than 1.67 times that of a circle of equal area , and so that a district’s area    shall not include less than 40% of the smallest possible circumscribing circle.

 

 

f)No district linc shall divide an existing election precinct

g) It shall be the duty of all branches of government to adhere to these principles unless or until a plan drawn in accordance with them is invalidated by a final decision of the United States Supreme Court

h) In the drafting of plans, these principles may he nlried only to the extent necessary to insure that subdivisions capable of electing a majority of each house possess at least 45% of the state’s electorate. In accommod.lting this requirement, or any other requirement imposed by a court passing on the validity of a plan, the above provisions arc to be adhered to, except thHt the principles prohihiting the crossing of county lines may be varied

to the minimum extent necessary to comply with this section or the requirement of a court decree.

3. The following are the upplicable principles of congressional redistricting:

a) No district line shall divide an existing election precinct

b) No district line shall divide a) the nine counties of the Eastern Shore, or b) the threeSouthern Maryhmd counties, or c)the three Western Maryland counties or d) the City of Baltimore;

c) adjacent areas shall be alnnexed to these areas to the extent necessary to meet

equal population requirements.

 

c) Consistent with Article I ,Section 2 of the United States Constitution, there shall be no requirement that any congressional candidate  who is a Maryland resident live within the district for which he is a candidale

d) Thc county of residence of congressional candidales shall not be induded on the primary or general election ballot.

e) Each district shall he drawn so that no10 district’s circumference measured by connecting junctions of precinct lines with Ihe perimeter is more .. thim 1.67 times that of a circle of equal area, and so that district’s area shall not include less than 40% of the area of the smallest possihle circumscribing circle.

 

4.These principles shall control the 2011 reapportionment, and all subsequcnt

reapportionments.

5. (Plans of reapportionment and/or redistricting).

6. (Severability clause).

 

7. It shall be the duty of the Attorney General

to dcfend this Act, or to provide for and

adequately finance its defense.

 

It is to he noted that while the federal courts have heen highly  tolerant of weirdly shapcd congressional districts in the last two re-districtings, thcil- tolerance is not unlimited. In Anne Arundel v. State Administrative Board, 781 F. Supp. 394 (D.Md. 1991) Circuit .Judge Niemeyer), dissentedl’d from the decision upholding thc districts, see P. Niemeyer, “Gerrymandering: The Case in Maryland,” 54 Md. L. Rev. 242 (1995). In the later case of Duckworth v. Election Board, 332 F.3rd 769 (4th Cir. 2003),the courl dismissed a complaint founded on political gcrrymandering but indicated

 

that if racial gerrymandering had been  pleaded, the result would have heen different. It may hc doubted that the governor’s redistricting commission will deny itsclf the usc of racial population data. or that this year’sits plan challenges to its planwill be as ineptly pleaded as those in 2003.

 

 

 

 

 

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