The Governor’s Redistricting Advisory Committee has released its legislative plan. Its prior Congressional redistricting plan was a partisan gerrymander; this one is a pro-incumbent gerrymander.
The U.S. Constitution mandates that every 10 years the Federal government take a census of the U.S. population. The states must then use the resulting population data to redistrict both their Congressional and state legislative districts.
Accordingly, on July 4, 2011, Maryland Governor Martin O’Malley created a Redistricting Advisory Committee to propose plans for the required revisions to both Congressional and General Assembly districts. The General Assembly approved the plans for Congressional districts on Oct. 20, 2011. Next up are the state legislative plans.
On Dec. 16, 2011, the Committee released the legislative plans. A week later, on Dec. 22, 2011, it held a statewide public hearing on it in Annapolis. The next step is for the Governor to submit the plan to the General Assembly on Jan. 11, 2012. The General Assembly then has until Feb. 25, 2012 to submit an alternative plan or the Governor’s plan must be accepted.
The headline news for Severna Park is that in the future it will be divided into three districts (33a, 33b, and 31b) with five representatives in the House of Delegates and two in the Senate. Currently, it is a single district (33a) with two representatives in the House and one in the Senate. District 31b appears to cover only a sliver of Severna Park. Although the details are hard to fathom from the printed district map, it appears that District 33a and 33b are divided roughly along Ritchie Highway for the southern half of Severna Park.
The most dramatic news of the day was released just before the hearing formally met. The Governor held a press conference acknowledging that Richard Stewart, one of the five members of the Redistricting Advisory Committee and a major O’Malley campaign fundraiser, had been under investigation at the time of his Committee appointment for failing to pay nearly $4 million in taxes and on Dec. 15 had pleaded guilty to tax evasion. On Dec. 22, hours before the press conference and the hearing, the Maryland Republican Party had publicly released this information and issued a press release saying that Stewart’s plea had called into question “the integrity of the entire map and the process in which it was crafted.” O’Malley challenged that assertion and said that the Committee’s work was complete when it submitted its report on Dec. 16.
This may help to explain the confusing composition of the dais at the hearing. At the Committee’s Aug. 30, 2011 hearing on its Congressional redistricting plan held in the same room, the Committee’s five members sat at the dais and took questions. This time only three members of the Committee, plus Governor O’Malley (who wasn’t present at the last hearing), were present. Despite not serving on the Committee, the Governor also appeared to dominate the dais. A reasonable surmise is that this had something to do with the fact that O’Malley’s Secretary of Appointments, presumably responsible for vetting Stewart, is also chair of the Committee.
The hearing was attended by more than a hundred individuals, with several dozen testifying. Most of the people who spoke were not from Anne Arundel County, let alone Severna Park. The most popular complaint among those testifying was the division of communities of interest. For example, current District 33a delegates Cathy Vitale and Tony McConkey both spoke and lamented Severna Park’s subdivision. Gene Peterson, the currently longest serving school board member from Anne Arundel County, lamented the division of his legislative district to include Prince George’s County as well as Anne Arundel County.
I think the strong tendency to frame issues in non-political terms, such as preserving communities of interest, was quite interesting. In contrast, most political scientists, democratic reformers, and newspaper editorial boards tend to focus on who wins and loses and how redistricting affects basic democratic values such as fair and effective representation. In this sense, the public participation and commentary were highly skewed.
It is also interesting to compare the Congressional and General Assembly redistricting. The Congressional redistricting was a classic partisan gerrymander. The goal of the Democrats was to increase their representation in Maryland’s Congressional delegation from a 6-2 to a 7-1 majority. The national significance of the Democratic gerrymander is that it counterbalances the many Republican gerrymanders in other states. As chair of the Democratic Governors Association, O’Malley arguably had a duty to do this.
In contrast, the General Assembly redistricting was more of a pro-incumbent gerrymander. Unlike Congress, the Democrats already have a veto proof two-thirds majority in both chambers. Thus, the overall focus was on protecting incumbents. The media often gets this wrong, partly because the “objective” structure of news reporting is to get spokespeople from both political parties to give “balance” to their stories. Such spokespeople have institutional incentives to speak about partisan rather than pro-incumbent gerrrymanders because a pro-incumbent gerrymander is unflattering to leaders of both parties.
However, in individual places the story is much more nuanced than the overview provided above. For example, to create a safer district for Democrats in the Annapolis area, Republicans were packed into Delegate Ronald George’s district (the new District 33a), which gives him a much safer district at the expense of Delegate Herbert McMillan. Similarly, at the Congressional level, Republican Representative Andy Harris got a safe district while Republican Representative Roscoe Bartlett was targetted to lose his seat.
Redistricting is also one of the most important levers party leaders have to punish wayward party members and reward loyalists. The goal is to intimidate future party members who might otherwise want to oppose the party leadership. This arguably happened to Democratic Senator James Brochin in the General Assembly and Representative Donna Edwards in Congress. Whether this was or was not the actual motive for placing them in signficantly more competitive districts is largely beside the point. The point is that others, including press commentators and politicians, perceive it to be a plausible explanation for the redistricting outcome and so adjust their behavior accordingly.
Another partisan element to the current legislative gerrymander is the uneven distribution of voters into districts. The U.S. Supreme Court does not strictly enforce one-person, one-vote at a state level; it gives states about a 10% leeway in the number of votes per district. Thus, the rational course is for Democrats to cram about 10% more voters into Republican packed districts than Democratic packed districts. A very quick analysis suggests that the Democrats did indeed act rationally in this regard. District 33, Severna Park’s Republican packed district, was given 127,799 residents, whereas many Democratic districts were given approximately 117,000 residents. Of course, Republicans act the same way when given control of redistricting.
Another variable used to manipulate the size of Democratic versus Republican districts is the assignment of districts for students, soldiers, and prisoners. States have a choice to assign such individuals to their current or prior home. This got a lot of play in Maryland when in 2010 the General Asssembly passed the “No Representation Without Population Act,” which for redistricting purposes transferred the location of prisoners from their place of incarceration (primarily rural Republican areas) to their prior home (primarily urban Democratic areas). Despite the hoopla, this shifted less than 1% of the population basis for redistricting—far less than the discretion allowed for creating districts of unequal size.
My own comments at the hearing focused on the subject of redistricting transparency and public participation, a subject that no one else addressed and perhaps only a political scientist could love. I started by applauding the Committee for allowing individuals to sign up online to testify and suggested this would be a great reform for General Assembly hearings, too (a reform that I’ve unsuccessfully recommended to General Assembly members many times over the years).
I then argued that the Committee’s transparency and public participation are important because redistricting by elected representatives is inherently an undemocratic process. When democratic representatives are asked to choose their own voters, they have an inherent conflict of interest with the public. A standard counter to this perceived lack of democratic legitimacy is to argue that the redistricting process is open to public participation and monitoring. (Along these lines, in a Dec. 23, 2011 opinion upholding Maryland’s Congressional redistricting plan, a three judge panel seemed to endorse the importance of such participation and transparency when it noted that the Committee received more than 350 comments from the public while not noting that there was no accessible public record of the comments and thus no objective way to determine the extent to which the Committee responded to the comments.) However, the Committee’s actual behavior undercut these claims in important ways.
To illustrate what I meant, I read from my written comments to the Committee during its Congressional redistricting cycle, which I in the Severna Park Patch on Sep. 10, 2011 because the Committee did not make such comments publicly accessible. I also observed that in the subsequent months I received no feedback from the Committee, nor, to the best of my knowledge, was I aware of any steps taken to implement any of them during its subsequent legislative redistricting cycle.
Here are the ten recommendations that I reread from my written testimony:
- Provide via the Committee’s public website email signups for notification of Committee meetings, including changes to dates and locations of Committee meetings, so that the Committee’s hearings are not dominated by insiders.
- Provide on the Committee’s public website in a well-structured, downloadable format all the redistricting related data used by the Committee in devising its redistricting map.
- Use only open source redistricting software, such as that provided by the Public Mapping Project, to do the redistricting.
- Provide on the Committee’s public website the open source redistricting software in such a way that members of the public have the same access to the redistricting data and software as members of the Committee.
- Provide on the Committee’s public website a copy of all written comments submitted to the Committee so that members of the public do not have to file a Public Information Act request (a very unreliable process in Maryland) to access the comments.
- Provide on the Committee’s public website a copy of the redistricting plan submitted to the Governor 30 days before the General Assembly must adopt the plan.
- Provide an authoritative time stamp next to all documents, including different versions of the same document, concerning when a document was placed on the Committee’s public website.
- Provide on the Committee’s public website the website’s editorial policies concerning material information both placed and not placed on the website.
- Maintain the Committee’s public website for at least ten years after the completion of the Committee’s work (that is, through the next redistricting cycle) and have the Maryland State Archives immediately archive the Committee’s work after its work has been completed.
- Acknowledge on the Committee’s public website all its violations, if any, of Maryland’s Open Meetings Act and Public Information Act, including delays in fulfilling Public Information Act requests.
In some cases, I embellished the recommendations with updates based on my experience with the Committee. For example, regarding recommendation #1, I noted that when I previously both testified and provided written comments to the Committee I gave it my email address. But the Committee didn’t use it to send me notice of the Dec. 22, 2011 hearing.
Similarly, regarding recommendation #5, I noted that no verbal or written testimony could be found online, including my own testimony. I argued that this was highly undemocratic, a great loss for the community, because a great wealth of useful information comes out at these hearings that is not otherwise publicly available in a meaningful way and would take political scientists and others who couldn’t make it to Annapolis during the workday a lot of time to replicate, if they could even do so. The public value of expert witness testimony is why, for example, the Federal Administive Procedures Act now requires all written commentary in Federal Rulemakings to be posted online for the education of all. Most Federal Advisory Committees now also publish testimony online.
Although I have little reason to believe that Maryland redistricting is any worse than it is in many other states, it is noteworthy that Azavea, a respected firm that provides redistricting software for nonprofit advocacy groups, calculated that Maryland, one of 28 states that have finalized their Congressional redistricting, currently has the least compact (according to the Polsby-Popper ratio) and thus arguably the most gerrymandered Congressional district in the U.S.
It is also striking that Judge Titus, one of the three judges who upheld Maryland’s Congressional redistricting plan on Dec. 23, 2011, nevertheless had this to say in his concurring opinion:
“It is clear that the plan adopted by the General Assembly of Maryland is, by any reasonable standard, a blatant political gerrymander…. I realize, of course, that during the redistricting process partisan considerations and incumbency protection inevitably play a role, but the blatant actions taken here demonstrate to me an impermissable political gerrymandering that ‘crossed the line.’ ”
My own preference is to replace the current redistricting process in Maryland with what I call redistricting juries, which are convened by the courts to choose among the best submitted redistricting plans. Unlike a regular jury, a redistricting jury has more than a hundred citizens so that it is broadly representative of the public and thus has democratic legitimacy.
Many people, including myself, believe a 12 year old can now do a better redistricting job than most legislatures with professional staff. Using modern redistricting software, professional redistricting maps can now be drawn at the push of a button based on basic algorithms for redistricting criteria included in Maryland’s Constitution such as compactness, contiguity, and one-person, one-vote. Several years ago I co-sponsored a Washington, DC conference on this proposal. My non-profit, iSolon.org, will be doing more work on this proposal in the coming year.