North Carolina and Maryland challenge gerrymandering


By Sam Weber and Laura Fong

The vast majority of votes cast for the United States House of Representatives this fall will be in races where the winner is an almost foregone conclusion. Only about 25 of the 435 races are considered truly competitive by the Cook Political Report.

In Maryland, Republican Dr. Mark Plaster is running an underdog campaign for one of those seats, considered "safe" for the incumbent, who is a five-term Democrat.

The challenge of unseating an incumbent is made all the more difficult by the actual make-up and shape of Maryland's 3rd congressional district, which has been called one of the most gerrymandered in the country.

"It's pretty clear that it was politically motivated," Plaster said. "The idea was to hand the district to the Democratic candidate."

In 2014, Democrats got about 57 percent of the vote in Maryland, but won seven out of eight House seats.

Gerrymandering is a practice that dates back to the 19th century, and today state legislatures across the country draw lines to maximize their party's advantage.

In Maryland, Gov. Larry Hogan has proposed that the state take the power to draw lines away from the legislature and instead charge an independent commission with the task, a system already in use in four states.

But is it possible to create a body to draw lines that is truly independent?

Maryland State Sen. Joan Carter Conway, a Democrat, argues that it's almost impossible to find truly nonpartisan actors and that Maryland shouldn't have to change when far more states draw their lines to benefit Republicans.

"I don't think Maryland should be in a position to change unless it's a national change," Conway said.

In North Carolina, a state where Republicans won 56 percent of congressional votes in 2014, and 10 out of 13 races, Republican Rep. David Lewis agrees that it is difficult to find truly independent people.

"Those people don't exist," he said. "I think it's more honest and upfront to say that as a Republican I'm going to follow the law and if there's a discretionary decision to be made I will make it from my partisan point of view."

While the U.S. Supreme Court has generally permitted redistricting with a partisan purpose, there have also been hints that a legislature can go too far.

Earlier this year, Democratic election law attorney Marc Elias sued North Carolina arguing that a map enacted earlier this year was an so overtly partisan it was unconstitutional.

"You don't necessarily need to worry about where to draw the line because if there were a place where we knew it was 100 percent, it was in North Carolina," Elias argues.

His case in North Carolina is one of several still working their way through the courts.

Read the full transcript below.

JEFF GREENFIELD: For Dr. Mark Plaster, it's another day on the road, racking up mile after mile on a bus that's seen better days.

MARK PLASTER: We've worn it out. I mean we've put a lot of miles on it. All this upholstery that's all beat up right now used to be pristine.

JEFF GREENFIELD: But Plaster isn't making rounds as the emergency room doctor he was, he's running for congress as the Republican nominee in a Maryland district whose shape seems inspired not by geography, but by pure partisan politics.

JEFF GREENFIELD: Was this district drawn that way just because a couple of guys got drunk, or is there a political motivation to this?

MARK PLASTER: It's pretty clear that it was politically motivated. The idea was to hand a district to the Democratic candidate. The state pretty much is about even, roughly. Maybe a slight advantage for Democrats in registration. But by drawing it the way they have, it now is 7-1 in representation in the House.

JEFF GREENFIELD: What Plaster is talking about is called "gerrymandering"—the art of drawing districts to put as many of your voters together—or, more often, to make sure the other party's voters are broken up and scattered.

It gets its name from a nineteenth century politician named Elbridge Gerry. As governor of Massachusetts, he helped shape a congressional district so blatantly one-sided that one critic said it looked like a salamander. "No, another replied, a Gerry-mander."

Today, state legislatures across the country, the majority of them Republican, draw congressional district lines, something required with every new census every ten years to maximize their party's advantage.

That had particular impact after Republicans dominated the 2010 midterm elections, taking control of both legislative chambers in 25 states, and governorships in 29 states.

DAVID ROHDE, DUKE UNIVERSITY: 2010 was a real benchmark because it produced so many states in which the Republicans completely controlled the process.

JEFF GREENFIELD: David Rohde is a political scientist at Duke University in North Carolina, one of the states where Republicans won control of the state legislature.

DAVID ROHDE: Gerrymandering has a larger impact on bigger states. That is, the more the population, the more ways you can divide it up, the more seats you have to distribute. So the Republicans were fortunate enough to gain control of a number of large states in 2010 where they had not controlled redistricting before.

JEFF GREENFIELD: In Pennsylvania, for example, 44 percent of the voters chose Democratic candidates for the House of Representatives in 2014. But 13 of the 18 districts – more than two-thirds – are represented by Republicans.

In Ohio, about 40 percent of the voters chose democratic candidates for the House of Representatives, but 12 out of 16 seats – three-quarters of them – are represented by republicans.

In Maryland, which was controlled by Democrats in 2010, the partisan tilt is, unsurprisingly, reversed.

If you want an example of gerrymandering at its most creative, come here to Maryland's 3rd congressional district. So attenuated, so detached, that to get from one end of the district to the other you would need a tank full of gas, or a boat.

The district's perimeter runs about 225 miles, with a shape described by one federal judge as "a broken-winged pterodactyl lying prostrate." Its body is broken up by four other congressional districts, making campaigning a logistical nightmare.

Indeed, so disconnected is the 3rd that protesters staged a "gerrymander meander," showing just how sprawling it is.

MARK PLASTER: It's not so much going through other districts as much as how different the people are in each one of those areas. Annapolis is a very military town, somewhat conservative. It goes all the way up to Pikesville, which is a Jewish community. It incorporates Gibson Island, which is the ultra-rich waterfront. It involves the inner harbor, what I call the hipsters of Federal Hill. It's very, very different. And those folks have a tendency to not know each other, nor do they have a lot of issues in common, which makes it difficult.

GOV. LARRY HOGAN, R-MARYLAND (August 2015): Maryland has been singled out for one of the most gerrymandered districts in the entire country. This is not a distinction we should be proud of.

JEFF GREENFIELD: Larry Hogan, a moderate republican, was elected governor in 2014, and had made redistricting a major campaign issue.

Last year, the governor created a commission that looked at the issue, it recommended Maryland join California, Arizona, Idaho and Washington state in taking the power to draw these lines away from the legislature and putting it into the hands of an independent commission.

STATE SEN. JOAN CARTER CONWAY, D-MARYLAND: They're never going to reach them by that date…

JEFF GREENFIELD: Democrat Joan Carter Conway, a Maryland state senator for 19 years, served on the panel that studied the issue. Legislation that would have given a commission power to draw legislative lines in the future failed.

JOAN CARTER CONWAY: In the state of Maryland today, we are Democratic, and we have a process in terms of how we redistrict, and at this juncture we don't see any errors or flaw in it.

JEFF GREENFIELD: Senator Conway says she was unwilling for her state to change its pro-democratic tilt, while far more states draw their districts lines to benefit republicans.

JOAN CARTER CONWAY: I don't think Maryland should be in a position to change unless it's a national change. It's very partisan. The Democrats have been accused of drawing lines to help them. The Republicans draw the lines to help them.

JEFF GREENFIELD: She could well be thinking of North Carolina, which holds the distinction of being one of the other most gerrymandered states in the union. Though Republicans won a 56 percent statewide majority of votes for congress in 2014, they hold a 10-3 majority in the delegation.

For Republican state representative David Lewis, who co-chaired the state's committee on congressional redistricting. It's simply impossible to take partisanship out of the process.

STATE REP. DAVID LEWIS, R-NORTH CAROLINA: I think it's more honest and upfront to say that as a Republican I'm going to follow the law, I'm going to follow the rules of the law, and if there is a discretionary decision to be made I will make it from my partisan point of view.

JEFF GREENFIELD: The Supreme Court has long told states they must draw lines that provide for equal populations—"one person, one vote"—and since the passage of the 1965 Voting Rights Act has looked with suspicion on racially motivated lines. But as a rule, the court has permitted redistricting with a partisan purpose.

That's a point that Lewis made in a remarkable display of candor on the state house floor back in February: the lines were drawn — in part, he said — to give Republicans the biggest possible benefit.

DAVID LEWIS (February 19, 2016): A further criteria was partisan advantage. We believe that this map will produce an opportunity to elect 10 Republican members of Congress."

And as for those independent commissions, Lewis sees them as politically motivated by Democrats.

DAVID LEWIS: I think it's great politics. If I felt there were any way in the world that I could stand before my constituents and say, "I believe that it's possible to come up with a group of people who have no political bias whatsoever who will simply sit down in a room and magically create districts," I'd be behind it. I'd be behind it 100 percent. But those people don't exist.

JEFF GREENFIELD: It's a rare point of agreement with Democrat Joan Carter Conway in Maryland.

JOAN CARTER CONWAY: The concept is a marvelous concept. And I will not sit here and say I disagree with the independent commission. The problem then becomes, who are you considering independent?

JEFF GREENFIELD: But the Supreme Court has warned against too much partisanship. In a 2004 concurring opinion, Justice Anthony Kennedy wrote "partisan gerrymanders… are incompatible with democratic principles."

DAVID ROHDE: The Supreme Court has said that this is a political question and that legislatures are allowed, expected to try to extract advantage, but justices have also said- some justices disagreed with that, but other justices say, "yes, that's true, but you can go too far."

JEFF GREENFIELD: That's Kennedy.

DAVID ROHDE: That was Kennedy, among others. So the question is, "What's too far? It's sort of Potter Stewart's old obscenity definition: "I'll know it when I see it."

For Marc Elias, a prominent Democratic election law attorney advising the Hillary Clinton campaign, North Carolina has clearly gone too far.

MARC ELIAS, PERKINS COIE: You don't necessarily need to worry about where you draw the line for know it when you see it, because if ever there were a place where we knew it was 100 percent, it was in North Carolina.

Elias sued the state in 2013, arguing the congressional lines unconstitutionally diluted African-American voting strength.

And then earlier this year, he argued the replacement map was also unconstitutional. Why? Because he said it was "a bald partisan gerrymander."

MARK ELIAS: The states need to have meaningful elections, and if you create a system in which the votes for Congress are simply meaningless because the incumbent electors, the incumbent members have essentially drawn districts that they can never be defeated; query whether or not you even have a republican form of government.

JEFF GREENFIELD: One of the assertions of Rep. Lewis is, "There's no such thing as a nonpartisan person." He says you can't take politics out of politics…

MARK ELIAS: The fact that you may never be able to find someone who is entirely nonpartisan isn't really an- isn't really an excuse for leaving it in the hands of a legislature in North Carolina that said we're going to draw the map 100 percent based on partisanship

JEFF GREENFIELD: In addition to the challenges in North Carolina, cases in Maryland and Wisconsin challenging partisan redistricting are all making their way through the courts.

That's too late to help Dr. Mark Plaster in his underdog campaign.

After hopscotching Maryland highways for 45 minutes, in and out of the 3rd congressional district, we returned to the area he hopes to represent.

MARK PLASTER: We've made this problem. It just doesn't need to be. There are enough people to form a congressional district within 20 minutes of where we started. But instead we have to travel an hour and a half this way, an hour and a half that way, an hour and a half that way. And it's by design.

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