MD Senate president should give up redistricting opposition

Normally, federal congressional districts are redrawn after each decennial census and then remain in place until after the next decennial census.  Largely at the urging of President Donald Trump, states with Republican governors and Republican majorities in both houses of their respective legislatures have or are redrawing the boundaries of federal congressional districts between the 2020 census and the 2030 census to give the maximum likely Republican representation from those states in the upcoming 2026 midterm election. This Republican push to tip the scales in the nearly evenly divided U.S. House of Representatives has been met with a Democratic pushback in states with Democratic governors and Democratic majorities in both houses of their respective legislatures.

However, Maryland, which has a Democratic trifecta, a Democratic governor and Democratic control of both houses of the legislature, has met a roadblock. Sen. Bill Ferguson, the President of the Maryland State Senate, is blocking redistricting. Ferguson should give up his opposition and the Maryland General Assembly should consider redistricting in its upcoming session.

Ferguson is opposed to redistricting because he believes that a partisan redistricting effort could be struck down by Maryland’s courts. In 2019, the Supreme Court of the United States in Rucho v. Common Cause held that challenges to partisan redistricting of federal congressional districts was beyond the reach of the federal courts. The Supreme Court reasoned that there were no objective standards by which districts could be judged.

Following the 2020 census, Maryland’s federal congressional redistricting was challenged in state court. Judge Lynne Battaglia, sitting as a special master appointed by the Maryland Supreme Court, struck down Maryland’s districts on the ground that partisanship was a predominant factor in drawing the districts. The Maryland Constitution has a standard for judging state legislative districts. Article III, section 4, provides: “Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions.” Judge Battaglia applied the state constitutional standard to strike down the federal congressional districts. The governor and general assembly redrew the federal congressional districts and there was no appeal of Judge Battaglia’s ruling.

Since 2020, there have been several challenges to federal congressional district maps on the grounds that they violate the federal Voting Rights Act.  Most recently, a three-judge district court, by a vote of 2 to 1, held that Texas’s redistricting violated the Voting Rights Act and held that Texas must follow its previous map.  On Dec. 4, the Supreme Court of the United States, by a 6 to 3 vote, stayed the District Court’s decision and Texas’s 2026 congressional elections will use the new gerrymandered map.

If we were living in normal times, we would object to mid-census redistricting to game the composition of the U.S. House of Representatives. We also believe that there is some merit to Ferguson’s argument that a partisan map could meet a challenge in Maryland state court. But we do not live in normal times. The brazen attempt by President Trump and the Republican party to game the composition of the U.S. House of Representatives should be countered by Maryland.

As the saying goes, what is good for the goose is good for the gander.

Insofar as Judge Battaglia’s use of Maryland state constitutional standards to judge federal congressional districts is concerned, we would urge the Maryland Supreme Court to reject any attempt to do so in any future challenge. Maryland federal congressional districts should be judged the same way that federal congressional districts across the country are being judged – without any fetters related to partisanship in the wake of Rucho.

Editorial Advisory Board Members Arthur F. Fergenson, Steven I. Platt and Debra G. Schubert did not participate in this opinion.

EDITORIAL ADVISORY BOARD MEMBERS

James B. Astrachan, Chair

James K. Archibald

Gary E. Bair

Arthur F. Fergenson

Nancy Forster

Susan Francis

Julie C. Janofsky

Ericka N. King

George Liebmann

George Nilson

Steven I. Platt

Angela W. Russell

Debra G. Schubert

Jeff Sovern

H. Mark Stichel

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.