Outrageous and Unconstitutional

August 26, 1991

The gerrymander is a staple of American political history, but the Governor's Redistricting Advisory Committee plan to redraw congressional district lines in Maryland is so outrageously partisan, silly and illogical that it would make even Elbridge Gerry turn over in his grave. State Republican leaders have already said that they intend to challenge this plan in court if it becomes law. They should. They would win. The plan is not only goofy, it is unconstitutional.

The law of the land, which a federal district court would have to follow in ruling on a challenged plan, was put this way by the Supreme Court: a grossly partisan redistricting law "violates the rights of members of a political party to equal protection under the Fourteenth Amendment [if] the district lines were drawn with the intention and effect of disadvantaging members of that party. . ."

Forcing the two Republican representatives from the First and Second districts into a huge, grotesquely contoured district and leaving every Democratic representative alone in a district, when the state has not lost a seat in Congress due to population decline, clearly "disadvantages" Republican voters -- and clearly was intended to do so.

It is not idle speculation to anticipate judges would 1) throw out such a congressional redistricting proposal as unconstitutional and 2) draw the lines themselves. It has been done before, and at a time when computers had not yet been employed to make it simple and quick to draw districts with precision that reflect population breakdowns and racial, ethnic, historical and political affiliations.

When Maryland legislators enacted an equally outrageous redistricting plan in the mid-1960s, a three-judge federal court weighed its constitutionality. The court said the plan was unacceptable and proceeded to draw its own lines. The 1966 congressional elections were held in accordance with those districts. The judges tried to make the districts "as compact as possible," though this not required to by law -- only by tradition and logic.

American political scientists and responsible elected officials have long agreed that legislative districts should be "compact and contiguous." That used to be federal law. Even now this philosophy is endorsed in the Maryland Constitution regarding the General Assembly: "Each district shall consist of adjoining territory, be compact in form [and] give due regard to natural boundaries and the boundaries of political subdivisions." At least five of the proposed congressional districts don't come close to meeting these standards.

Drawing district lines is a political responsibility. Ideally it should be done by elected politicians, not by judges. But when politicians play dirty tricks of this magnitude on voters, judges have no recourse but to act when they are asked to do so. The advisory committee ought to go back to its computers and come up with a more equitable plan that the General Assembly can enact, the governor can sign and no lawsuit could threaten.

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