Maryland AG Brian Frosh And The One Party State – Defending The Indefensible


The word gerrymander first appeared in print in 1812 in a newspaper article regarding the redrawing of Massachusetts state senate electoral districts under the direction of then Massachusetts Governor Elbridge Gerry. One of the convoluted districts drawn in the Boston area was said to resemble a salamander, and the new word “gerrymander” was coined on that basis to denote a district drawn for obvious partisan political purposes to give one political party an unfair electoral advantage.

Gerrymandering typically involves a combination of two processes, “cracking” and “packing.” In “cracking” the opposing parties votes are deliberately broken up and distributed across multiple electoral districts, so that the party affected cannot enjoy a majority in any single district. In “packing” the opposing party’s votes are all jammed together into one single district, so that while the party wins the single seat in question its power in all other districts is greatly diminished.

Gerrymandering has been with us for two full centuries at least. It has been practiced by all major political parties. In January of this year the Pennsylvania Supreme Court threw out the map of Congressional districts in that state, which had been drawn by the Republican Party, as being unconstitutional.

It is perhaps in the increasingly one-party state of Maryland, however, that gerrymandering has been brought to its highest level by the state’s Democratic Party.

Maryland has a reputation as a blue state, one which is dominated by Democratic voters. While the majority of Marylanders vote Democratic, however, in most Congressional elections somewhere around 40% of the state votes Republican. Yet, of the eight Congressional Districts only one of them is currently held by a Republican.

This is not an accident. This is the product of a systematic effort by the Democratic Party in Maryland, which controls the state legislature, to, with each new census, redraw the map of the state’s electoral districts so as to make it increasingly more difficult for any Republican to be elected anywhere.

Which brings us to the 6th Congressional District. The 6th is in the western part of the state. This is the “panhandle” of Maryland, sandwiched between Pennsylvania and West Virginia and having much more in common with both of these states than the DC suburbs. It is an area of small towns, farms and wide-open spaces, and up until the recent past was a Republican stronghold.

Following the 2010 census the 6th was redrawn by the Democratic legislature in Annapolis. An appendage was attached to the district running from Frederick, Maryland down into the solidly Democratic suburbs northwest of Washington, DC. The effect of the addition of these voters was to outweigh the voting power of all of Western Maryland. In effect, if you lived west of Frederick, your vote no longer meant anything.

The 6th, most of which is solidly Trump territory, is now firmly in Democratic hands. But maybe not for much longer.

Following the 2011 redrawing of the 6th Congressional District, seven Republican residents of the District filed suit in federal court challenging the constitutionality of the state’s action and alleging violations of their First Amendment rights. Last week a federal district court panel ruled in their favor, tossing out the boundaries drawn by the Democratic legislature and finding that the new boundaries were intentionally designed to target Republican voters in the 6th Congressional District because of their political affiliation.

“The massive and unnecessary reshuffling of the Sixth District, involving one-half of its population and dictated by party affiliation and voting history, had no other cause than the intended actions of the controlling Democratic officials to burden Republican voters by converting the District” wrote the court in part.

One of the panel members, Chief Judge James K. Bredar wrote a separate opinion agreeing with the overall judgment and declaring partisan gerrymandering “noxious, a cancer on our democracy.”

Pursuant to the court’s order the State of Maryland is now required to redraw the boundaries of the district, something which will of necessity require alteration in the boundaries of all of the state’s other congressional districts as well. If Maryland cannot or will not comply, the court has already stated that it will have a non-partisan commission redraw the boundaries. No further congressional elections can occur in Maryland until new districts have been constituted.

The outcome of this case would seem to have been clear from the outset. Maryland’s former governor, Martin O’Malley, a Democrat, during whose administration the new 6th District was created, was blunt about the partisan mapmaking he oversaw, saying under oath in a deposition conducted as part of the proceeding that Democratic leaders intentionally redrew the districts to try to give their party an advantage.

Nonetheless, almost immediately following the courts’ ruling, Maryland Attorney General Brian Frosh, a Democrat, announced that he would appeal the federal ruling to the US Supreme Court and defend the 6th District boundaries as drawn. Frosh is, as he is so often, opposed in this action by the Republican Governor of Maryland, Larry Hogan. Hogan has urged Frosh to accept the court’s ruling and has renewed his call for putting redistricting in the hands of a nonpartisan commission. He has further indicated that he will once again introduce legislation requiring this in the next session of the legislature.

This is not sufficient. Frosh has made a practice of treating the office of the Attorney General as his own personal fiefdom and a platform from which he can pursue his own personal crusades. That is bad enough. This is something altogether more heinous.

Frosh, a recently reelected Democratic politician and a member of the state’s Democratic machine is now using the resources of the Office of the Attorney General and the taxpayers’ money to pursue unconstitutional, partisan goals. This entire action, taken in the name of the citizens of Maryland is expressly designed to disenfranchise close to 40% of them.

Criticism by the Governor is not enough. Action is required. The Governor should immediately retain outside counsel and file suit against the Attorney General seeking an injunction to prevent him from continuing to defend an unconstitutional practice and from representing that he is acting on behalf of the people of Maryland when he is, in fact, clearly acting only in the interest of one political party. One would assume also that such a suit should seek to force Mr. Frosh to recuse himself from participating in any way in any litigation on this subject, since he, as a Democratic Party official, is clearly an interested party.

The Attorney General of Maryland is supposed to be the people’s lawyer. Mr. Frosh ceased to be that a long time ago, and, no doubt emboldened by his latest electoral victory, is now taking his practice of treating the Attorney General’s office as his own private possession to new extremes. It is time to stop watching, complaining and hoping he changes course. It is time to take action.