MATTER OF LEGISLATIVE DISTRICTING

• Citation: 805 A.2d 292,370 Md. 312
• Decision Date: 26 August 2002
• Docket Number: No. 33, No. 24, No. 23, No. 20, No. 34, No. 28, No. 19, No. 29, No. 22, No. 25, No. 30, No. 26, No. 31, No. 32, No. 27
• Parties: In the Matter of LEGISLATIVE DISTRICTING OF THE STATE.
• Court: Maryland Court of Appeals

805 A.2d 292

370 Md. 312

In the Matter of LEGISLATIVE DISTRICTING OF THE STATE.

Nos. 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, Sept. Term, 2001.

Court of Appeals of Maryland.

August 26, 2002.

Sam Hirsch (Kali N. Bracey, of Jenner and Block, Washington, D.C.) for Wayne Curry et al., Misc. No. 20, September Term, 2001, for petitioners.

Paul D. Raschke (Alan A. Abramowitz, Michelle E. Stawinski, of Bouland and Brush, Baltimore) for Eugene E. Golden et al., Misc. No. 22, Sept. Term, 2001.

Barry Steve Asbury, pro se, Parkville, Misc. No. 23, Sept. Term, 2001.

M. Albert Figinski (Saul Ewing, Baltimore; John K. Phoebus, Crisfield) for J. Lowell Stoltzfus et al., Misc. No. 24, Sept. Term, 2001.

M. Albert Figinski (Saul Ewing, Baltimore) for Norman R. Stone, Jr. et al., Misc. No. 25, Sept. Term, 2001.

Robert H. Levan (Richard T. Colaresi, of Levan, Colaresi, Ferguson and Levan

PA, Columbia) for Mayor and Council of the City of College Park, Misc. No. 27, Sept. Term, 2001.

Harry C. Storm (Abrams, West & Storm, PC, Bethesda) for Gandal and Schofield, Misc. No. 28, Sept. Term, 2001.

E. Mark Braden (Amy Henson, Lee T. Ellis, Jr., Matthew S. Dolan, Ralph G. Blasey, III, of Baker & Hostetler, Washington, DC) for Michael S. Steele, Misc. No. 29, Sept. Term, 2001.

Dana M. Dembrow, pro se, Silver Spring, Misc. No. 30, Sept. Term, 2001.

Paul D. Raschke (Alan A. Abramowitz and Michelle E. Stawinski, of Bouland & Brush, LLC, Baltimore) for Katharina Eva Dehaas et al., Misc. No. 31, Sept. Term, 2001.

Paul D. Raschke (Alan A. Abramowitz and Michelle E. Stawinski, of Bouland & Brush, Baltimore) for Rayburn Smallwood et al., Misc. No. 32, Sept. Term, 2001.

Jefferson L. Blomquist (Charles D. MacLeod, Cynthia L. McCann of Funk & Bolton, PA, Baltimore) for John W. Cole et al., Misc. No. 33, Sept. Term, 2001.

Joseph M. Getty, pro se, Hampstead, Misc. No. 34, Sept. Term, 2001.

(Gail M. Wallace, pro se, Owings Mills) for Coalition to Keep the Tow of Owings et al., Misc. No. 26, Sept. Term, 2001.

Carmen M. Shepard, Deputy Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Maryland, Maureen M. Dove, Asst. Atty. Gen., Steven M. Sullivan, Asst. Atty. Gen., Baltimore; Robert A. Zarnoch, Asst. Atty. Gen. and Kathryn M. Rowe, Asst. Atty. Gen., Annapolis) for respondents.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BELL, C.J.

A majority of the Court concurring, by Order dated June 11, 2002, we concluded, for reasons to be set forth in an opinion later to be filed, that significant portions of the Governor's 2002 Redistricting Plan were not consistent with the requirements of Article III, § 4, of the Constitution of Maryland 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 boundaries and the boundaries of political subdivisions" and, for that reason, "the Plan [wa]s in violation of the Maryland Constitution and [wa]s invalid." In that Order, we advised the parties that "this Court will endeavor to prepare a constitutional plan." We invited the parties to recommend one or more technical consultants to assist us in that endeavor.¹

After considering the recommendations of the parties, by Order dated June 17, 2002, this Court appointed Nathaniel A. Persily and Karl S. Aro, as technical consultants to assist the Court in preparing a redistricting plan that complied with applicable federal and state law.² On June 21, 2002, consistent with our June 11th Order, we promulgated and adopted a legislative redistricting plan that is in compliance with both state and federal constitutional and statutory requirements. We now give our reasons for the June 11th Order.

INTRODUCTION

A fairly apportioned legislature lies at the very heart of representative democracy. That is the message behind the Supreme Court's landmark decisions in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), and Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), which invalidated the apportionment of state legislatures purely on a county or other subdivision basis, as Maryland had done, and mandated legislative districts of substantially equal population. Reapportionment of Maryland's General Assembly following each decennial national census, therefore, is a matter of interest to every citizen of the State, not just the candidates or the political parties and groups who support or oppose them. Because it involves redrawing the lines of legislative districts, the process of reapportionment is an intensely political process. But it is also a legal one, for there are constitutional standards that govern both the process and the redistricting plan that results from it.

The constitutional provisions that now govern the redistricting process were adopted by the voters, in 1970 and 1972, through amendments to the State Constitution. In addition to setting forth the procedure for the decennial redistricting, these sections provide for forty-seven legislative districts, each to elect one senator and three delegates. As we explain in greater detail later in this opinion, the Governor and the General Assembly are the key players in the development and adoption of the plan but, on petition of any registered voter, this Court must review that plan to insure that it conforms with constitutional requirements, and, if the Court finds that the plan "is not consistent with the requirements of either the Constitution of the United States of America or the Constitution of Maryland," grant appropriate relief. Four plans have been adopted pursuant to those 1970 and 1972 amendments, each of which has been challenged in this Court. We found the plan for the 1974 and subsequent elections unconstitutional because of a procedural violation and, using the Governor's plan as a guide, promulgated our own plan. In re Legislative Districting, 271 Md. 320, 317 A.2d 477 (1974). We upheld the 1982 plan, finding no violations. In re Legislative Districting, 299 Md. 658, 475 A.2d 428 (1984). A divided Court approved the 1992 plan, but cautioned that it came "perilously close to running afoul" of the requirement that due regard be given to natural and political subdivision boundaries. Legislative Redistricting Cases, 331 Md. 574, 614, 629 A.2d 646, 666 (1993).

When, in 1970 and 1972, the constitutional provisions on apportionment were redrafted, the only legal constraint the drafters were under was that the factors chosen to govern the development and promulgation of a redistricting plan be consistent with supervening federal constitutional and statutory law. Had the framers of the constitution wished, therefore, instead of requiring that significant weight be given to natural or political subdivision boundaries, they could have proposed such things as defining and preserving communities of interest, promoting regionalism, retaining (or not retaining) incumbents and the preservation of urban (or rural) areas. And had the people agreed, those factors would have become the constitutional guideposts.

Instead, however, the Legislature chose to mandate only that legislative districts consist of adjoining territory, be compact in form, and be of substantially equal population, and that due regard be given to natural boundaries and the boundaries of political subdivisions. That was a fundamental and deliberate political decision that, upon ratification by the People, became part of the organic law of the State. Along with the applicable federal requirements, adherence to those standards is the essential prerequisite of any redistricting plan.

This is not to say that, in preparing the redistricting plans, the political branches, the Governor and General Assembly, may consider only the stated constitutional factors. On the contrary, because, in their hands, the process is in part a political one, they may consider countless other factors, including broad political and narrow partisan ones, and they may pursue a wide range of objectives. Thus, so long as the plan does not contravene the constitutional criteria, that it may have been formulated in an attempt to preserve communities of interest, to promote regionalism, to help or injure incumbents or political parties, or to achieve other social or political objectives, will not affect its validity.

On the other hand, notwithstanding that there is necessary flexibility in how the constitutional criteria are appliedâ the districts need not be exactly equal in population or perfectly compact and they are not absolutely prohibited from crossing natural or political subdivision boundaries, since they must do so if necessary for population parityâ those non-constitutional criteria cannot override the constitutional ones. We made this clear in both our 1984 and 1993 decisions. Specifically, we acknowledged the importance of natural and subdivision boundaries and rejected the argument that such things as the promotion of regionalism and the protection of non-official communities of interest could overcome that requirement. The Legislature apparently understood and acquiesced in that ruling, as no attempt was made in the intervening decades to amend the Constitution and, thereby, include those or any other factors in the constitutional framework.

When the plan adopted by the Governor or Legislature is challenged, it becomes our lot to review it for constitutionality. We first look at the plan on its face, in light of the challenges, to see whether, and to what extent, the federal and state legal requirements have been met. When, from the petitions and the answers alone, we perceive deviations that do not appear to be permissible, but for which there may be some explanation that could serve to justify them, we have appointed a special master, thus affording the State and the...