In re 2012 Legislative Districting of the State

• Decision Date: 10 December 2013
• Docket Number: Misc. Nos. 1,Sept. Term, 2012.,2,3 and 5
• Citation: 80 A.3d 1073,436 Md. 121
• Parties: In the Matter of 2012 LEGISLATIVE DISTRICTING of the State.
• Court: Maryland Court of Appeals

436 Md. 121

80 A.3d 1073

In the Matter of 2012 LEGISLATIVE DISTRICTING of the State.

Misc. Nos. 1, 2, 3 and 5, Sept. Term, 2012.

Court of Appeals of Maryland.

Dec. 10, 2013.

Christopher Eric Bouchat, Woodbine, MD, for Appellant.

Dan Friedman, Asst. Atty. Gen., Legislative Services Building, Annapolis, MD (Douglas F. Gansler, Attorney General of Maryland, Baltimore, MD and Kathryn M. Rowe and Sandra Benson Brantley, Assistant Attorneys General, Legislative Services Building, Annapolis, MD; Steven M. Sullivan, Matthew J. Fader, and Amanda S. Conn, Assistant Attorneys General, Baltimore, MD), for Appellee.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and BELL,^* JJ.

BELL, C.J., (Retired).

The right to formal political representation is fundamental to our state and national democracies. In the second year following each Federal decennial census, the Maryland Constitution provides that the Governor and State Legislature shall reapportion the State's legislative representation consistent with the State's current demographics. To protect the Federal and State legal rights that may be affected by this process, the Maryland Constitution also provides that the citizens of Maryland have the right to challenge this legislative apportionment scheme in this Court. In the present case, we are called upon to consider the validity of Maryland's most recently enacted legislative apportionment plan against three such challenges.

I.

A.

Once every ten years, following each United States Census, Article III, § 5 of the Maryland Constitution¹ requires that the State's 47 Legislative Districts (also referred to as “Senate Districts”) be reapportioned. Under this provision, the Governor's mandate is to formulate a new legislative apportionment plan in conformance with the requirements of Article III, §§ 2,²3,³ and 4⁴. Once the legislative apportionment plan is drafted, the Governor must submit the plan to both the President of the Senate and the Speaker of the House of Delegates, who then must introduce the Governor's plan as a Joint Resolution by the first day of the Legislature's regular session in the second year following the decennial United States census. Unless the General Assembly adopts an alternative legislative apportionment plan by the forty-fifth day of that legislative session, the Governor's plan becomes law.

This Court has original jurisdiction to consider any challenges to the legal validity of the legislative apportionment plan. Md. Const. Art. III, § 5. If the Enacted Plan fails legal scrutiny under the Maryland Constitution, the United States Constitution, or other controlling law, this Court shall deem the plan invalid and provide appropriate relief. Id.

In March 2011, following the receipt of the 2010 census data for Maryland, the Governor convened a five member committee, the Governor's Redistricting Advisory Committee (“GRAC”), to draft and recommend, after holding public hearings and accepting public comment, a plan for the redistricting of the State's Congressional and Legislative Districts.⁵ The GRAC held 12 public hearings during the summer of 2011 and, on December 16, 2011, published its plan for the apportionment of the State's 47 Legislative Districts.

Following receipt of the GRAC committee's recommendations, the Governor presented a legislative apportionment plan to the Senate President and House Speaker, who introduced it in their respective Houses as Senate Joint Resolution 1 and House Joint Resolution 1. The Governor's plan became law on February 24, 2012 as revisions to Maryland Code (1984, 2004 Repl. Vol.) §§ 2–201 and 2–202 of the State Government Article.

The Attorney General, in anticipation of challenges being filed to the newly enacted plan, on March 2, 2012, filed a motion requesting this Court to issue an order promulgating the procedures to be followed in filing and considering any such challenges to the enacted legislative apportionment plan. On March 6, 2012, in response to the Attorney General's motion, we issued an order prescribing the schedule for filing challenges: any registered voter of the State who sought to challenge the Enacted Plan had to file a petition with the Clerk of the Court of Appeals no later than May 1, 2012, and the State's response and any amicus curiae briefs had to be filed no later than May 31, 2012. The order also appointed retired Court of Appeals Judge Alan M. Wilner as the Court's Special Master to conduct any required hearings.

The following petitions, among others,⁶ challenging the Enacted Plan were filed:

1. Petition of Delores Kelley and James Bochin;

2. Petition of Christopher Eric Bouchat;

3. Petition of Cynthia Houser, et al.

On September 5, 2012, the Special Master held a hearing in accordance with the procedures promulgated by this Court. At the hearing, expert reports and other evidence were admitted without objection. After the hearing, the Special Master issued his recommendation that the enacted legislative apportionment plan be upheld against each of the challenges. Each party filed exceptions, as to which this Court held oral argument. Following oral argument, we issued the following order:

WHEREAS, pursuant to the provisions of Sec. 5 of Article III of the Constitution of Maryland, the Governor's legislative districting plan, introduced as House Joint Resolution No. 1 and Senate Joint Resolution No. 1, became effective on February 24, 2012, and

WHEREAS, the Office of the Attorney General having filed a motion to promulgate procedures to govern any petitions brought under Article III, Sec. 5 of the Constitution of Maryland, and

WHEREAS, challenges to the validity of the legislative districting plan having been filed and an evidentiary hearing having been held before a Special Master appointed by this Court, and

WHEREAS, oral arguments on the challenging petitions and exceptions to the report of the Special Master having been held before this Court on November 7, 2012, and

WHEREAS, the Court having determined that the Governor's plan is consistent with the requirements of the Constitution of the United States and the Constitution of Maryland, it is this 9th day of November, 2012,

ORDERED, for reasons to be stated later in a written opinion, that the relief sought by Petitioners in these actions is denied.

In the Matter of 2012 Legislative Districting of the State, 429 Md. 301, 55 A.3d 713 (2012).

We now provide a de novo review of the Special Master's legal conclusions, and our reasons in support of the preceding order.

B.

We begin with a review of the applicable law common to each challenge, and the factual context in which the petitioners' challenges reached this Court.

Federal constitutional restraints on State legislative apportionment arise principally from the Fourteenth Amendment Equal Protection Clause in the so-called “one person, one vote” doctrine enunciated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and further iterated by this Court in its redistricting jurisprudence: In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292 (2002); Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646 (1993); In re Legislative Districting, 299 Md. 658, 475 A.2d 428 (1984); In re Legislative Districting, 271 Md. 320, 317 A.2d 477 (1974). Under this rule, Maryland Senate Districts, single-member Delegate Subdistricts, and two-member Delegate Subdistricts must be approximately equal to one another in population. See In re Legislative Districting of State, 370 Md. 312, 356, 805 A.2d 292, 318;see also Reynolds, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506;Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595 (1964). This requirement generally is considered to be prima facie satisfied if the variation in population between any two legislative districts does not exceed 10%. See In re Legislative Districting of State, 370 Md. 312, 356, 805 A.2d 292, 318;In re Legislative Redistricting Cases, 331 Md. at 592–594, 629 A.2d at 655–56.

Article III, §§ 2 and 3 of the Maryland Constitution divide the State's population into 47 Legislative Districts (also referred to as “Senate Districts”).⁷ Based on the 2010 census, Maryland had an adjusted population of 5,772,231 residents.⁸ Therefore, based on the adjusted population size, equal apportionment among Maryland's 47 legislative districts translates to 122,813 residents per an ideal Legislative District; 40,938 residents per an ideal equally apportioned single-member Delegate Subdistrict; and 81,875 per an ideal equally apportioned two-member Delegate Subdistrict.

Beyond the “one person, one vote” principle, intentional and invidious ethnic discrimination in legislative apportionment is repugnant to the United States Constitution under both the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). Legislative apportionment plans that effectively disenfranchise or abridge the right to vote of any citizen on account of “race or color” are prohibited by § 2 of the Voting Rights Act of 1965 (42 U.S.C. § 1973).⁹

With respect to Maryland law, the provisions that govern the legislative redistricting process were adopted by the Maryland voters in 1970, see Ch. 785 of the Acts of 1970, and 1972; Ch. 363 of the Acts of 1972, when the State Constitution was amended.¹⁰ In addition to the drafting procedures noted above, Article III, § 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.” Thus, Article, III § 4 of the Maryland Constitution requires that “[e]ach legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population” and that “[d]ue regard shall be given to natural...