Hutzell: ‘The Hogan Court’ is Maryland’s last hope in redistricting fight

This is exactly where state Senate President Bill Ferguson warned Maryland that messing around with congressional boundaries would lead.

“The Hogan Court.”

That’s not its name, of course. It’s the Supreme Court of Maryland.

But critics often use the label to dismiss decisions by the top of the state’s judicial branch, dominated by Republican Gov. Larry Hogan’s appointments.

You’ll hear it again this week as Maryland’s Democratic leaders try to overturn two Circuit Court judges’ rulings that, among other things, found that the General Assembly violated a new July 1 deadline it created for certifying ballot questions.

If the state loses, you can almost hear the explanation now — it was that “Hogan Court.”

That would be wrong.

It is a convenient misunderstanding of how the two-term governor reshaped Maryland courts — nominating a record 190 judges in eight years.

While the state’s highest court is a conservative-majority court, it’s not conservative in the same way as the U.S. Supreme Court — which overturned decades of legal precedent on issues like abortion to reshape American society and government power.

Maryland courts tend to be restrained rather than activist, deferential to the legislature rather than partisan.

Lawyers for the governor and General Assembly are depending on that. They will ask the court Thursday in Annapolis to overturn last week’s decision by Anne Arundel Circuit Court Judge Robert Thompson, another Hogan appointee.

Thompson essentially ruled that Maryland Democrats — who say they are eager to fight national attacks on fair elections — tripped over themselves in a politically driven rush to the ballot box.

He sided with lawyers from the Oversight Project, whose leader filed the lawsuit as a Maryland resident, and several Republican state lawmakers who argued that the Democratic leadership bypassed state election laws to rush the amendment onto the November ballot.

And the state will ask the court to do the same with Dorchester County Judge James Sarbanes’ similar decision. He ruled against the state Friday in a lawsuit filed by other lawmakers.

The judges also found that the legislature intentionally wrote the question to confuse voters and rolled multiple changes into a single referendum question.

The amendment changes rules on how the legislature redraws boundaries and how they may be challenged, allowing the legislature to send lawsuits directly to the Supreme Court.

Lawyers for Maryland will argue that the July 1 deadline for the secretary of state to certify ballot questions does not apply to this amendment.

The General Assembly exercised its constitutional authority to write the ballot summary, they will claim, and exempt it from certification. The language is clear, and the question focuses on a single, complex subject.

It’s a technical question, a matter of deciding what the entirety of the law means. That’s true in most appeals in Maryland, even when the stakes are as supremely political as gerrymandering.

Hogan appointed Chief Justice Matthew J. Fader, Brynja M. Booth, Jonathan Biran, Steven B. Gould and Angela Eaves.

Democrat Wes Moore appointed just one justice, Peter K. Killough. Shirley M. Watts, appointed by Democrat Martin O’Malley, remains on the bench.

In March, this court ruled against lawsuits by Baltimore, Annapolis and Anne Arundel County seeking damages from oil companies for the impact of climate change caused by fossil fuels.

The ruling was both technical — there’s nothing in common law giving local governments power to treat global warming as a public nuisance or regulate emissions — and deferential. The state legislature has yet to pass a law opening that door.

Killough and Watts dissented, arguing that consumer deception lawsuits are different than regulating emissions or curbing public nuisances.

The “Hogan Court” was shorthand for labeling it a political decision.

Hogan’s focus on appointing judges sharpened three years into his first term. He was angered by a federal judge’s delays in deciding a lawsuit over the Washington Metro’s Purple Line.

When the opportunity came via a rare alignment of state judicial retirements, he turned to the existing nominating process. He almost always sided with panels of lawyers who vet candidates on merit.

Some appointments, however, seemed political.

In 2016, he appointed his chief lobbyist to the Supreme Court, then called the Maryland Court of Appeals, and his deputy legal counsel to the Anne Arundel bench.

In the end, Hogan hewed closely to the ideal of a nonpartisan, professional bench. Drawing from the same pool of Maryland lawyers his predecessors used, he appointed more women and minorities to judgeships than any governor before him.

The redistricting fight started with Judge Lynne A. Battaglia’s ruling four years ago. Appointed to the Court of Appeals by Democrat Parris Glendening, she came back from retirement to hear the case.

She threw out the newly drawn congressional map, ruling that it violated state constitutional requirements for compact, equal election districts.

Legislative leaders dropped an appeal of Battaglia’s ruling and adopted the compromise map in place today: seven districts dominated by Democratic voters, one where Republican voters are a majority.

The fear was that “The Hogan Court” would give Republicans more competitive districts if it went beyond Battaglia’s ruling — the same fear Ferguson cited in initially resisting calls to join the national gerrymandering fight.

The amendment would erase Battaglia’s decision if it survives. During the legislative debate, House Majority Leader David Moon called the judge “errant.”

Referendum opponents are yelling about disenfranchisement, saying Democrats want to prevent Eastern Shore voters from electing a Republican.

That’s a political argument, but because there are no maps at this point, it’s not the issue Thompson and Sarbanes, an O’Malley appointee, decided.

The legislature wants to be sure there will be no more “errant” decisions.

Whatever the outcome, Maryland is on a deadline to finalize the ballot. Expect a quick decision.

This appeal is about process, not maps, national circumstances or political rhetoric.

Despite the confidence expressed by Gov. Wes Moore, Ferguson and others, the state will have a difficult task convincing the justices that they worked it correctly.

Unless, of course, the conservative “Hogan Court” gets really technical, quite deferential and comes to their rescue.