On Election Day, Maryland citizens could vote to throw out their state’s 2011 Congressional redistricting map, a possibility that could lead to legal and political chaos.
For months, Maryland Democrats have dismissed this possibility as relatively uncomplicated. If the map goes down, the Democratic Legislature would draw a new — but very similar — map, and Gov. Martin O’Malley (D) would sign it into law before the 2014 elections, they contend. But questions remain.
Who would Maryland House Members represent in the interim? Would the old district lines, which disappear with the 112th Congress, be used, or would they serve voters under the 2011 redraw until new boundaries could be agreed to?
The consensus among Maryland establishment Republicans and Democrats is that the 2011 map will determine representation until a new map is enacted for the 2014 cycle. But some of the state’s and nation’s smartest lawyers and political scientists are scratching their heads on the legal implications of such a move. One Maryland political insider called the matter “murky.”
“They’re between a rock and a hard place,” said attorney Ben Griffiths, who specializes in redistricting and voting rights litigation.
According to Michael McDonald, an associate professor at George Mason University and an expert on redistricting, maps that are struck down are often used until the next election cycle. In the interim, a new House map is drawn and candidates run for office in those new boundaries, similar to what happens during the normal decennial redistricting process.
But there are potential legal hurdles with that route, including the feasibility of having Members serve in districts that have been thrown out by the voters via referendum. And solving this problem by having Members represent the pre-2011 redistricting lines would violate the Constitution’s “one-man, one vote” edict.
And population changes since 2002 would mean that the old districts would have too many or two few constituents.
“There are some states where this has come up in the past, where representation has been ambiguous,” McDonald said.
Maryland GOP Chairman Alex Mooney said the state party has not entertained a lawsuit to influence the process in the event that the 2011 map is voted down. He expects the 2011 map will hold until a new one can be agreed to.
However, any citizen has the right to file suit in the matter.
“Not every judge shares the same view,” a Maryland political insider said. “This is the stuff law school exams are made of.”
It is hard to imagine Democrats losing any sort of statewide issue this year. The state GOP has proved to be relatively impotent in recent years. But the sheer ugliness of the map has meant that Democrats may not get their way on this.
The new map, passed one year ago, was an exercise in overt gerrymandering. State and national press has widely derided it as the ugliest in the country — pointing specifically to Democratic Rep. John Sarbanes’ 3rd district.
The map also tore apart Rep. Roscoe Bartlett’s (R) 6th district, and it is becoming increasingly clear that Democratic businessman John Delaney will defeat him there in November.
Maryland Republicans did not lay down after O’Malley signed the map into law. Mooney was encouraged by a poll he conducted on the issue in December. By summer, he and other Republicans had successfully petitioned to put the measure on the ballot.
Mooney said he is confident voters will throw out the map. He pointed to editorials from the Washington Post and Baltimore Sun as creating enough outrage to help push his case.
This is not the first time Maryland voters have had the opportunity to knock down a redistricting map. According to the Baltimore Sun, the League of Women Voters petitioned against a 1961 map and voters struck it down in 1962.
Many — but not all — Maryland Democrats assume that voters will uphold the law. State Democrats have incorporated the referendum as part of their overall initiative campaign, which includes pushing issues such as the legalization of gay marriage, casinos and a state version of the DREAM Act.
But not all Democrats are on board. Some, such as Montgomery County Councilman Phil Andrews, have openly supported Mooney’s cause. Others will privately concede a sense of squeamishness about how obviously partisan the lines are.
The most vocal Democratic critic of the 2011 map, Rep. Donna Edwards, has been silent on the referendum. Democrats in the Maryland delegation were heavily involved in drawing the lines, but not everyone was thrilled with the outcome.
If Mooney’s efforts prove successful and Democrats respond by redrawing a similar map, he says he will be undeterred and will launch a second petition.
He explained that a petition drive will only be easier to execute a second time around because he already has the contact information of the previous signees.
It should be noted that Mooney will be a leading GOP contender for the 6th district in 2014 should Bartlett lose his re-election bid.
“The game can continue,” Mooney said.