2022 Legislative Districting

In the Matter of the 2022 Legislative Districting of the State Misc. Nos. 21, 24, 25, 26, and 27, September Term 2021 Constitutional Law – Redistricting of General Assembly – Role of the Court. The Maryland Constitution assigns the task of districting the General Assembly to the political branches of State government – the Governor and the General Assembly. Once a districting plan is adopted pursuant to the constitutional process and an objection is made that the plan fails to comply with the State and federal constitutional criteria, the Court’s role is to determine whether the adopted plan complies, not whether a better plan could be designed.

Constitutional Law – Redistricting of General Assembly – Burden of Proof. A districting plan enjoys a presumption of validity. One who challenges a plan has the burden of presenting compelling evidence of a violation of the constitutional criteria. If a challenger presents evidence satisfying that standard, the State must produce sufficient evidence of compliance with the constitutional criteria.

Constitutional Law – Redistricting of General Assembly – Compactness. The preeminent criterion for districting of State legislative districts in Article III, §4 of the Maryland Constitution is that each district have “substantially equal population.” The other criteria for districting in the State Constitution – compactness, contiguity, and due regard for natural and political subdivision boundaries – yield to that command and to the proscription against racial or ethnic discrimination in the federal Voting Rights Act and, in practice, can be in tension with one another. Thus, the fact that a district is oddly-shaped, as the State and many of its subdivisions are, does not by itself establish a violation of the compactness requirement. A comparison of the shape of a district in Maryland to districts in other states is not particularly enlightening, especially when no comparison is made to the districts in past Maryland plans found to be compliant.

Constitutional Law – Redistricting of General Assembly – Contiguity and Due Regard for Natural Boundaries and Boundaries of Political Subdivisions. The fact that a river bisected one of the subdistricts of a district in southern Maryland did not establish that the district violated the contiguity and due regard provisions of Article III, §4 of the Maryland Constitution. Constitutional Law – Redistricting of General Assembly – Legislative Privilege. The absolute legislative privilege derived from the Maryland Constitution that protects legislators and their staff from being compelled to explain their legislative conduct or events that occurred in a legislative session may be invoked in litigation challenging legislation that accomplishes State legislative redistricting.

That privilege could be invoked in response to discovery requests concerning communications with staff about challenged districts and criteria entered into a computer program. Constitutional Law – Redistricting of General Assembly – Mix of Single-Member and Multi-Member Subdistricts. Article III, §3 of the Maryland Constitution authorizes the use of a mix of multi-member and single-member districts in a State legislative districting plan. Unless such districts are used in a particular instance to invidiously cancel or minimize the voting potential of racial or ethnic minorities, a districting plan may include them.

Constitutional Law – Redistricting of General Assembly – Allocation of Incarcerated Individuals to Domicile Prior to Incarceration. A State statute that provides for the re- allocation of incarcerated individuals to their domiciles for population counts used in districting is constitutional, even if the reduction in the population count for a jurisdiction where one or more prisons is located means that a districting plan must cross a county line in order to comply with the “substantially equal population” criterion for legislative districts. Argued: April 13, 2022 IN THE COURT OF APPEALS OF MARYLAND Misc. Nos. 21, 24, 25, 26, and 27 September Term, 2021 IN THE MATTER OF THE 2022 LEGISLATIVE DISTRICTING OF THE STATE *Getty, C.J., Watts Hotten Booth Biran Gould McDonald, Robert N.

(Senior Judge, Specially Assigned), JJ. Opinion by McDonald, J. Getty, C.J., Biran, and Gould, JJ., dissent. Filed: August 31, 2022 *Getty, C.J., now a Senior Judge, participated in the hearing and conference of this case while an active member of this Court. After being recalled pursuant to Maryland Constitution, Article IV, §3A, he also participated in the Pursuant to the Maryland Uniform Electronic Legal Materials decision and adoption of this opinion.

Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-01-18 15:20-05:00 Gregory Hilton, Clerk The Maryland Constitution requires that the boundaries of the State’s legislative districts be adjusted after each decennial national census. Those adjustments are necessary to ensure that each district remains reasonably equal in population following any population shifts that have occurred in the State since the previous census. Any changes to the legislative districts to account for population shifts must be made with an eye on other State and federal Constitutional requirements concerning districting. The Maryland Constitution assigns the decisions on how to re-draw district lines to the political branches of State government – the Governor and the General Assembly.

Inevitably, there are disputes about the best way to re-draw the district maps and – more importantly for our purposes – about whether the new districts comply with the constitutional criteria. And so, every 10 years, one or more challenges are asserted to the latest legislative districting plan. It falls to this Court, as directed by the State Constitution, to consider those challenges, to decide whether burdens have been satisfied and challenges have merit and, if the challenges are found to have merit, to determine the appropriate relief. The Bottom Line This case concerns the most recent districting plan adopted by the General Assembly.

On the tightest timeline in the modern history of redistricting, the General Assembly adopted a new plan for State legislative districts earlier this year. The validity of that plan was promptly challenged by four separate petitions. Consistent with past practice, the Court enlisted the assistance of a special magistrate to conduct a hearing and provide findings of fact and conclusions of law concerning the issues raised by the challengers. At the conclusion of that process, the special magistrate recommended that the challenges be rejected.

The challengers filed exceptions to the special magistrate’s recommendation. On April 13, 2022, the Court heard oral arguments on those exceptions and, later that day, denied the petitions by order with an opinion to follow. This is that opinion. The Roadmap This Court’s opinions analyzing prior challenges to Maryland redistricting plans occupy 358 pages of the Maryland Reports.

We are about to add to that number. To aid the reader in navigating this opinion, we offer this roadmap (For those readers who rely on GPS devices for navigation and do not know what a roadmap is, these are the turn-by-turn directions). Part I of this opinion (pp. 3-23) describes the constitutional provisions governing redistricting and in particular the criteria for redistricting plans as construed in this Court’s prior decisions. Part II of this opinion (pp. 23-42) provides an overview of the redistricting process in the current cycle, beginning with the release of 2020 census data, the actions taken by the Governor and General Assembly in the adoption of a redistricting plan, the petitions challenging that plan, and the proceedings in this Court to resolve those challenges.

Part III of this opinion (pp. 42-46) outlines the role of the Court in assessing challenges to a redistricting plan and the burdens of proof that apply. Part IV of this opinion (pp. 47-100) discusses in detail the proceedings and evidence relating to the petition filed in Miscellaneous No. 25, the primary challenge to the redistricting plan. Part V (pp. 100- 106) and Part VI (pp. 106-111) of this opinion do the same for the petitions filed in 2 Miscellaneous No. 26 and Miscellaneous No. 27, respectively. Part VII of this opinion (pp. 111-112) briefly summarizes the disposition of the petitions challenging the redistricting plan.

Appendices attached to this opinion include the Court’s April 13, 2022 order and maps displaying State legislative districts under the redistricting plan and under the previous redistricting plan approved 10 years ago. Dissenting opinions have been filed by former Chief Judge Getty and Judge Gould (both joined by Judge Biran). For ease of reference, we will refer to Chief Judge Getty’s opinion, the primary dissent, as “Dissent” and Judge Gould’s opinion, which focuses on specific issues, as “Dissent (Gould, J.).” I Districting the General Assembly A. Historical and Constitutional Context A brief history of State legislative redistricting in Maryland establishes the historical and constitutional context for this case. 1. Historical Context As of the early 1960s, the Maryland Constitution assigned specific numbers of legislators to each county and Baltimore City, but did not set forth any general criteria for the design of legislative districts.1 In 1964, the Supreme Court held that the existing 1 At that time, the State Constitution provided for one senator from each county and divided Baltimore City into six legislative districts, each with one senator.

Maryland Constitution, Article III, §2 (1963 Repl. Vol.). The Constitution also listed specific numbers of delegates for each county and for the six legislative districts of Baltimore City. Id., Article III, §5.

As the only legislative districts not coincident with county boundaries were the six districts in Baltimore City, the Constitution provided guidance only on the 3 apportionment of the Maryland Senate violated the one-person, one-vote principle derived from the Equal Protection Clause of the Fourteenth Amendment. Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 (1964). During 1967 and 1968, a State constitutional convention was held to devise a new Maryland Constitution. Among other things, the new constitution proposed by that convention would have remedied the constitutional defect in the apportionment of the General Assembly.

The proposed constitution was ultimately rejected by the voters, but several elements of it were adopted in 1970 and 1972 as amendments to the existing 1867 Maryland Constitution. See Dan Friedman, The Maryland State Constitution: A Reference Guide (2006) at 9-10. Among those amendments were provisions, specific to State legislative redistricting, responsive to the Supreme Court decision in Tawes. See Chapter 785, Laws of Maryland 1969, ratified November 3, 1970; Chapter 363, Laws of Maryland 1972, ratified November 7, 1972.

Those provisions currently appear in Article III, §2 through §5 of the Maryland Constitution. design of those districts – in particular, that those six districts were to be “near as may be of equal population and of contiguous territory.” Id., Article III, §2. The Constitution also authorized redistricting of the City districts “from time to time” to ensure compliance with those criteria. Id., Article III, §4. 4 2. State Constitutional Standards and Process The Legislative Department Article III of the Maryland Constitution pertains to the Legislative Branch – or, as the article is entitled, the “Legislative Department” – of State government.2 The first seven sections of that Article concern the make-up of the General Assembly.

Section 1 specifies that the General Assembly is a bicameral legislature, consisting of a Senate and a House of Delegates. Section 2 provides that the Senate shall have 47 members and the House of Delegates shall have 141 members. Under §3, there are to be 47 legislative districts, each containing one senator and three delegates, with the proviso that, instead of representing the district at large, the three delegates may be apportioned among three single-member subdistricts or two districts (one with one delegate; the other with two delegates).3 Districting Criteria Most pertinent to this case, §4 sets forth the criteria for determining the districts that the State senators and delegates represent: 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.

Maryland Constitution, Article III, §4. 2 Our discussion of “legislative redistricting” in this case pertains only to the districting of the General Assembly under Article III. This case does not involve the separate process of drawing districts for seats in the United States Congress. 3 “Nothing herein shall prohibit the subdivision of any one or more of the legislative districts for the purpose of electing members of the House of Delegates into three (3) single-member delegate districts or one (1) single-member delegate district and one (1) multi-member delegate district.” Maryland Constitution, Article III, §3. 5 The Process Finally, §5 sets forth a process for creating legislative districts after each decennial census and provides for judicial review if there are challenges to the plan that result from that process. Section 5 provides that the Governor is to take the first step by holding public hearings and preparing a plan that sets forth the boundaries of the legislative districts in conformity with the other provisions of Article III described above. The Governor is to submit that plan to the General Assembly by the beginning of the legislative session in the second year following the census and may call a special session to present the plan.

The General Assembly may, by joint resolution, adopt its own plan setting the boundaries of State legislative districts, again in conformity with the other provisions of Article III.4 If a plan is adopted by joint resolution of the General Assembly by the 45th day of the regular session – whether the Governor’s plan or the General Assembly’s own plan – that plan becomes law. If the General Assembly does not adopt a plan by that deadline, the Governor’s plan becomes law by default. Challenges to a Plan Section 5 further provides that any registered voter may file a petition with the Court of Appeals challenging the constitutionality of whichever plan has become law. That section also confers original jurisdiction on the Court of Appeals to consider any such 4 Because the Constitution provides for the General Assembly’s plan to become law through the Legislature’s adoption of a joint resolution rather than passage of a bill, it is not subject to veto by the Governor.

See generally Prince George’s County v. Thurston, 479 Md. 575, 601-04 (filed July 13, 2022), 2022 WL 2709752 at ¹⁴-16. 6 petition, and to “grant appropriate relief” if the Court finds the plan to be constitutionally deficient. Section 5 does not further specify the procedures to be followed by the Court in conducting such judicial review. 3. Judicial Review of Past Plans by the Court of Appeals The plan challenged and under review in this case is the sixth plan to be adopted pursuant to the State constitutional amendments of the early 1970s. In each previous cycle, petitions were filed challenging the relevant plan.

In each instance, this Court reviewed the plan and issued an opinion explaining the standard of review that the Court applied to those challenges and the Court’s conclusions: 1973 Districting. Following the 1970 census, the Court held that the Governor’s plan was invalid for procedural reasons and, after remedying the procedural defect, promulgated a Court plan largely based on the Governor’s plan. See In re Legislative Districting, 271 Md. 320 (1974) (“1973 Districting”); see also State Administrative Board of Election Laws v. Calvert, 272 Md. 659, 664 (1974) (“Calvert”) (rejecting a challenge to plan promulgated by the Court largely based on Governor’s plan).5 1982 Districting. Following the 1980 census, the Court upheld the Governor’s plan.

In re Legislative Districting, 299 Md. 658 (1984) (“1982 Districting”). 5 In the first redistricting process under the constitutional amendments of the early 1970s, the General Assembly did not adopt its own plan and accordingly the Governor’s plan became the operative plan. However, the Governor had failed to hold public hearings as required by Article III, §5. After remedying the procedural defect by providing for a hearing on the plan, the Court promulgated a plan essentially identical to the original plan “[r]ather than go off on a project of our own.” Calvert, 272 Md. at 664 . 7 1992 Districting. Following the 1990 census, the Court upheld the Governor’s plan.

Legislative Redistricting Cases, 331 Md. 574 (1993) (“1992 Districting”). 2002 Districting. Following the 2000 census, the Court held that the Governor’s entire plan violated the State constitutional requirement of due regard for the boundaries of political subdivisions and adopted its own plan based on a plan proposed by one of the challengers. In re Legislative Districting of the State, 369 Md. 601 (2002) (“2002 Court Redistricting Plan”). The Court elaborated its holding in a subsequent opinion.

In re Legislative Districting of State, 370 Md. 312, 374 (2002) (“2002 Districting”). 2012 Districting. Following the 2010 census, the Court upheld the Governor’s plan. In re 2012 Legislative Districting, 436 Md. 121 (2013) (“2012 Districting”). In each of those cases, the challenges alleged violations of federal and State standards for designing State legislative districts.

In each case, the challenges were based entirely on the specifications of district boundaries in the respective plans and on statements made during public hearings on those plans – i.e., their legislative histories. See, e.g., 2012 Districting, 436 Md. at 175 & n.33 (referring to the lack of evidence of “discriminat[ion] on the basis of population density, region, partisanship and race”). B. Standards for Drawing Districts 1. Requirements Under Federal Law Under both the Supremacy Clause of the federal Constitution and Article 2 of Maryland’s Declaration of Rights, federal law takes precedence over an inconsistent Maryland law.

Maryland Committee for Fair Representation v. Tawes, 228 Md. 412 , 416- 8 18 (1962), rev’d on other grounds, 377 U.S. 656 (1964). That means that a redistricting map must conform to federal constitutional and statutory provisions as well as State law. Substantially Equal Population The Fourteenth Amendment to the United States Constitution embodies the one- person, one-vote principle. As applied to districting, that means that each of the districts must contain a nearly equal number of residents, and that any single-member or two- member delegate subdistrict must contain a number of residents nearly equal to the number of residents in other subdistricts of the same type.

See 2012 Districting, 436 Md. at 130 - 31. That standard is deemed to have been met if the population variation between any two districts, or type of subdistrict, does not exceed 10 percent. See Brown v. Thomson, 462 U.S. 835, 842 (1983); 1992 Districting; 331 Md. at 592-94 . Prohibition against Racial or Ethnic Discrimination “[I]ntentional 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.” 2012 Districting, 436 Md. at 131 , citing Shaw v. Reno, 509 U.S. 630 (1993).

In addition, the federal Voting Rights Act prohibits “[l]egislative apportionment plans that effectively disenfranchise or abridge the right to vote of any citizen on account of ‘race or color.’” 2012 Districting, 436 Md at 132, referring to 52 U.S.C. §10301 . A district violates Section 2 of that Act when it “dilute[s] the voting strength of politically cohesive minority group members, whether by fragmenting the minority voters among several districts where a bloc-voting majority can routinely outvote them, or by packing them into one or a small number of districts to 9 minimize their influence in the districts next door.” Johnson v. De Grandy, 512 U.S. 997, 1007 (1994); see also Baltimore County Branch of NAACP v. Baltimore County, No. 21- CV-03232-LKG, 2022 WL 657562 , at ⁴ (D. Md. Feb. 22, 2022), modified, No. 21-CV- 03232-LKG, 2022 WL 888419 (D. Md. Mar. 25, 2022) (addressing a Voting Rights Act claim concerning Baltimore County’s redistricting map). A relevant consideration in assessing the opportunity of members of a racial or ethnic group to participate in the political process and to elect representatives of their choice is “whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 426 (2006).

Effect of “Political Gerrymandering” The one-person, one-vote principle “does not mean that each party must be influential in proportion to its number of supporters.” Rucho v. Common Cause, 139 S. Ct. 2484, 2501 (2019). With regard to claims of partisan gerrymandering, the Supreme Court has “‘clearly foreclose[d] any claim that the Constitution requires proportional representation [by a political party] or that legislatures in reapportioning must draw district lines to come as near as possible to allocating seats to the contending parties in proportion to what their anticipated statewide vote will be.’” Id. at 2499 , quoting Davis v. Bandemer, 478 U.S. 109, 130 (1986). Thus, “[i]t hardly follows from the principle that each person must have an equal say in the election of representatives that a person is entitled to have his political party achieve representation in some way commensurate to its share of statewide support.” Id. at 2501. The Rucho Court observed that, “while it is illegal for a 10 jurisdiction to depart from the one-person, one-vote rule, or to engage in racial discrimination in districting, ‘a jurisdiction may engage in constitutional political gerrymandering.’” Id. at 249, quoting Hunt v. Cromartie, 526 U.S. 541, 551 (1999). 2.

Maryland Constitutional Criteria As noted above, Article III, §4 of the State Constitution specifies the criteria to be considered for State legislative districts: (1) substantially equal population; (2) adjoining territory, sometimes referred to as contiguity; (3) compactness; and (4) “due regard” for natural boundaries and for boundaries of political subdivisions. The Court has recognized the “necessary flexibility in how the constitutional criteria are applied – 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 parity.” 2002 Districting, 370 Md. at 322 (2002); see also, e.g., 1982 Districting, 299 Md. at 680 (“[T]he compactness requirement must be applied in light of, and in harmony with, the other legitimate constraints which interact with and operate upon the constitutional mandate that districts be compact in form.”). Substantially Equal Population The Maryland Constitution “does not impose a stricter standard for population equality than the 10% rule imposed by the Fourteenth Amendment.” 1992 Districting, 331 Md. at 600-01 . We therefore apply that 10 percent rule.

It is the “predominant constitutional requirement” in Article III, §4 and the “preeminent constraint on the 11 compactness provision” and the other criteria in Article III, §4. 1982 Districting, 299 Md. at 680 n.14, 688. Population counts come in whole numbers and are therefore readily susceptible to quantitative comparisons. If one divides the total State population by the number of districts, one can calculate the population of an “ideal” district and, with some simple division, the “ideal” subdistrict of a particular type. The figure for an ideal district can be compared to the population count of a proposed district to determine whether the proposed district would violate the 10 percent rule.

Past plans reviewed by this Court have complied with that “preeminent constraint,” challenges have focused on other criteria, and there is relatively little analysis of the “substantially equal population” requirement in the Maryland redistricting case law. The practical impact of the “substantially equal population” requirement is that unequal changes in population across the State will affect the geographic boundaries of multiple districts. For example, a district that has experienced slower growth or a loss of population compared to the rest of the State will have to pull population from adjoining districts – that is, expand geographically into areas previously part of the adjoining districts – to maintain parity with the “ideal” district. Conversely, a district that has experienced a disproportionate growth in population will need to shed population to adjoining districts – that is, shrink geographically and cede area to other districts – to maintain parity with the “ideal” district.

In both cases, there can be a domino effect as the boundaries of the adjoining districts are adjusted to add or shed population to stay within the 10 percent rule. As adjustments to boundaries are made to comply with this “predominant constitutional 12 requirement,” attention must also be paid to the geographic criteria of Article III, §4 – contiguity, compactness, and due regard to natural and political subdivision boundaries. Contiguity This Court has interpreted the contiguity criterion to require that “there be no division between one part of a district’s territory and the rest of the district; in other words, contiguous territory is territory touching, adjoining and connected, as distinguished from territory separated by other territory.” 1982 Districting, 299 Md. at 675-76 . The Court has acknowledged that it was the intent of the original drafters of the “adjoining territory” provision that a State legislative district may not cross the Chesapeake Bay but may cross other bodies of water, such as rivers and estuaries. 2002 Districting, 370 Md. at 344 (noting that the Committee of the Whole of the 1968 Constitutional Convention had stated its intention: “that under the interpretation of the words adjoining and compact ... a redistricting commission or the General Assembly could not form a district, either a Senate district or a Delegate district by crossing the Chesapeake Bay”).

The separation of land areas in a district by rivers does not render those areas non-contiguous. See Calvert, 272 Md. at 666 .6 Since the 1970s, challenges to redistricting plans have generally not focused 6 In that case, the Court noted that: Although Talbot and Caroline Counties adjoin and are in the same legislative district, there are but three points of connection, fixed bridges at Hillsboro and New Bridge across the Tuckahoe, and a drawbridge across the Choptank at Dover Bridge; and although Talbot and Dorchester Counties adjoin, their only connection is the mile-long drawbridge across the Choptank at Cambridge opened in the late 1930s. Prior to that there was no connection. Dorchester and Wicomico Counties border each other from the Chesapeake Bay to the Delaware line, being divided by Holland Strait, Tangier Sound, 13 on the requirement of contiguity, and that criterion has not received much discussion in the resulting opinions.

Compactness The Court discussed the compactness criterion at some length in dealing with challenges to several districts as non-compact in the 1980s. 1982 Districting, 299 Md. at 676-81, 686-92 . This criterion has not been a major factor in the challenges made during the three subsequent cycles. It is the primary criterion at issue this year. In applying the compactness requirement in Maryland, the Court has viewed it “as a requirement for a close union of territory (conducive to constituent-representative communication), rather than as a requirement which is dependent upon a district being of any particular shape or size.” 1982 Districting, 299 Md. at 688 .

In light of the fact that the State’s geography – its “bizarre geographic configuration” – “inhibits the geometric fashioning of districts of symmetrical compactness,” the Court concluded that “it was hardly the purpose of the compactness requirement to promote aesthetically pleasing district configuration forms.” Id. at 687 . Thus, an oddly shaped district does not in itself establish a violation of Article III, §4. Id. Instead, “an affirmative showing is ordinarily required to demonstrate that such districts were intentionally so drawn to produce an unfair political result, that is, to dilute or enhance the voting strength of discrete groups for and the Nanticoke River, with the only road connections being drawbridges at Vienna and Sharptown across the Nanticoke.

Calvert, 272 Md. at 666 . Without further analysis, the Court upheld the inclusion of that district in the plan. 14 partisan political advantage or other impermissible purposes.” Id. In other words, there must be a showing of “flagrant partisan abuse of the redistricting process” before the Court will invalidate a plan for failing to satisfy compactness.7 See 1992 Districting, 331 Md. at 611 . Although this Court has noted that, in theory, an ideal district might be in the shape of a circle, with its entire boundary equidistant from its center, the Court has found “it obvious that a mathematical formulation for determining whether a particular district is unconstitutionally noncompact was not within the contemplation of the constitutional framers when proposing adoption of §4 of Article III of the Maryland Constitution.” 1982 Districting, 299 Md. at 687 .

Thus, as this Court has previously explained, the “compactness” methods that theoreticians have devised as measures of compactness that may be applicable to certain other states do not yield much information when applied to districts in Maryland. Id. Due Regard for Natural and Political Subdivision Boundaries The two “due regard” criteria are often considered together, perhaps because political and natural boundaries often coincide.8 In Article III, §4, “political subdivisions” 7 In surveying decisions of courts in other states with a compactness requirement for legislative districting, this Court noted that many of those courts held that a compactness requirement is “intended to prevent political gerrymandering.” 1982 Districting, 299 Md. at 675 . The Court further noted that those cases recognize that the compactness requirement is “subservient” to the “dominant federal constitutional requirement of substantial equality of population.” Id. at 680 . 8 For example, Howard County is separated from Montgomery County by the Patuxent River and from Baltimore County by the Patapsco River; the Susquehanna River separates Cecil County from Harford County. 15 refers to counties and municipalities, which have clearly defined boundaries.

See 1982 Districting, 299 Md. at 681 n.15. The Court has referred to four purposes served by the “due regard” criteria: • to preserve those fixed and known features which enable voters to maintain an orientation to their own territorial areas • to recognize the importance of counties in Maryland’s governmental structure • to enable the residents of a political subdivision that does not have home rule, but rather depends on the General Assembly for many of its laws, to effectively work with a legislator with knowledge of the subdivision • to avoid the danger that representatives “may face conflicting allegiances as to legislative initiatives which benefit one of their constituencies at the expense of the other” See 2002 Districting, 370 Md. at 357-63 ; 1992 Districting, 331 Md. at 611-15 . At the same time, the Court has questioned the proposition that a delegate whose district spans three counties would be concerned only with the interests of the one county in which that delegate resided. That proposition, the Court remarked, “pay[s] little heed to the realities of political life.

Since [the delegate] is elected by all of the voters in the district, it seems safe to say that one who sees fit to ignore a substantial portion of his constituency undoubtedly will be rebuked when he is next obliged to face the electorate.” Calvert, 272 Md. at 673 . The Court has characterized the two “due regard” criteria as the “most fluid” of the districting factors in that they may defer to other constitutional criteria. 1982 Districting 299 Md. at 681 ; 1992 Districting, 331 Md. at 615 . However, the “due regard” criterion 16 relating to political subdivision boundaries has been the major focus of challenges made during the past three redistricting cycles. See 2012 Districting, 436 Md. at 144-59 ; 2002 Districting, 370 Md. at 353-75 ; 1992 Districting, 331 Md. at 611-16 .

The Court has said that the “due regard” criteria do not “encompass protection for a concept as nebulous and unworkable as ‘communities of interest.’” 1982 Districting, 299 Md. at 692 . When the Court found that a plan promoted non-constitutional factors, such as the preservation of existing districts, over the requirement that “due regard” be given to subdivision boundaries, the Court held that the plan was invalid. 2002 Districting, 370 Md. at 374 . In that case, there was no question of fact as to whether the mapmakers had promoted non-constitutional factors over the due regard criteria, because the State had taken the position that the due regard criteria were “secondary requirements” that “‘[could] be subordinated to the achievement of legitimate rational goals.’” Id. at 366 (quoting the State’s argument). After finding that the mapmakers had applied the law incorrectly and that the political branches would not be able to draw a new map in time for the primary election, the Court drew its own plan.

The Court’s plan had “many fewer shared senatorial districts and many fewer subdivision crossings” than the plan adopted by the Legislature. Id. at 374 . The Court’s plan reduced the county crossings in one district from four to three, reduced the 22 shared Senatorial districts to 14, and placed some districts entirely within one county. Id. at 374-75 .

How the Several Criteria Interact There is science and art in the drawing of districts. The “substantially equal population” requirement is objectively quantifiable, readily susceptible to measurement in 17 whole numbers, and strictly constrained by where people actually reside. It can be determined through simple math. The four geographical criteria are less susceptible to a simple quantitative measurement and may in fact conflict with one another – for example, a political subdivision or natural boundary may define a shape that is far from compact.

Thus, the art of districting requires that the geographical provisions be applied flexibly, each in the context of the others and of the very specific quantitative constraint imposed by the substantially equal population mandate. See 2012 Districting, 436 Md. at 133-34 , quoting 2002 Districting, 370 Md. at 321-22 (referring to the “necessary flexibility in how the constitutional criteria are applied”). Four readily apparent circumstances complicate the process. First, as is apparent to anyone who looks at a map of Maryland, the State is oddly shaped and is not easily divided into regular geometric shapes.

In particular, as the Court previously put it, the “westernmost counties are almost severed from the rest of the State by the protruding northeast boundary of West Virginia; the easternmost counties are severed by the waters of the Chesapeake Bay; and the southwest border is warped by the winding waters of the Potomac River.” 1982 Districting, 299 Md. at 687 . Within the State, its land area “is further fragmented by numerous other rivers, water bodies and topographic irregularities.” Id. In some instances, the shortest route from one part of the State to another involves 18 cutting through another jurisdiction, such as the District of Columbia, Delaware, Virginia, or West Virginia.9 Second, many of Maryland’s counties are also oddly shaped – for example, two counties wrap around Washington D.C.; Baltimore County almost entirely envelopes Baltimore City, which then reaches into Anne Arundel County; Calvert County is long and thin while Carroll County is almost rectangular; Charles County has an appendage that separates two other counties. Third, the frequency of the other political subdivisions – i.e., municipalities – within a county varies widely across the State, ranging from none in Baltimore County and Howard County to 27 in Prince George’s County and 19 in Montgomery County.

And the boundaries of some of those municipalities are irregular.10 Fourth, and most notably, the changes in population, and in population density, from one census to another occur unevenly around the State, and even within counties and municipalities. In sum, while the individual requirements of Article III, §4 are each intended to “work in combination with one another to ensure the fairness of legislative representation,” they also “tend to conflict in their practical application.” 1982 Districting, 299 Md. at 681 . Thus, “irregularity of shape or size of a district is not a litmus test proving violation of the 9 For example, the shortest routes from certain parts of Prince George’s County to certain parts of neighboring Montgomery County go through the District of Columbia and Virginia. 10 Laurel exemplifies a municipality with irregular lines. See https://perma.cc/6YA2 -RHYW. 19 compactness requirement.” Id. at 687 .

For that reason alone, the Constitution’s four geographic provisions are not a checklist of separate criteria with which each district, viewed in a vacuum, must strictly comply. In addition, in many instances, particularly in central Maryland, the boundary of a district necessarily depends on the circumstances not only of that district but of the ones surrounding it. The Designation of Subdistricts for Electing Members of the House of Delegates Under Article III, §3 of the Maryland Constitution, each legislative district elects one senator. The three delegates assigned to that district may also be elected at-large by all of the voters of the district.

Alternatively, as noted above, that section also permits a legislative district to be divided into subdistricts for the purposes of electing the three delegates. This can be done in two ways. One way is to divide the district into three subdistricts, each of which has one-third of the district’s overall population and elects one delegate. A second way is to divide the district into two subdistricts: one subdistrict contains two-thirds of the district’s population and elects two delegates; the other subdistrict contains the remaining third of the district’s overall population and elects one delegate.

The Constitution contemplates that the apportionment of delegates in these ways can vary from one legislative district to another. As noted above, to comply with the one-person, one-vote requirement of the federal Constitution, a one-member or two-member delegate subdistrict must have a population proportionate to an “ideal” three-member delegate district and in parity with other subdistricts of the same type. Past redistricting cases have not addressed whether or how the other criteria of Article III, §4 apply to subdistricts, although subdistricts have often 20 been defined to coincide with boundaries of political subdivisions – i.e., counties and municipalities. Multi-member legislative districts do not violate the Equal Protection Clause of the United States Constitution per se, but may do so as applied, if they are drawn “invidiously to minimize or cancel the voting potential of racial or ethnic minorities.” 1982 Districting, 299 Md. at 673 (citations omitted).

Other Permissible Factors The political branches – the Governor and the General Assembly – are not confined to “only the stated constitutional factors.” 2012 Districting, 436 Md. at 133 , quoting 2002 Districting, 370 Md. at 321 (internal quotation marks omitted). At a minimum, a districting plan must address the constitutional factors and may not subordinate them to others. Subject to that constraint, the political branches may permissibly “consider countless other factors, including broad political and narrow partisan ones, and they may pursue a wide range of objectives.” Id. The fact that an otherwise compliant plan “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.” 2012 Districting, 436 Md. at 133 , quoting 2002 Districting, 370 Md. at 322 . “[A]n intentional effort to draw district lines so as to create a balance between two primary partisan political parties does not violate the fourteenth amendment.” 1982 Districting, 299 Md. at 674 .

Thus, “general principles of legislative apportionment will usually cast doubt upon claims that a redistricting plan produces unfair political results.” 1992 Districting, 331 Md. 21 at 609 . For example, a “claim that the Governor’s plan constructs districts with a view toward protecting incumbents states no redressable wrong.” Id. at 610. Accordingly, under this Court’s precedent, a petitioner who challenges a plan on the grounds that it improperly serves political objectives must establish by compelling evidence that the constitutional factors were subordinated to those objectives and were not met. 1982 Districting, 299 Md. at 688 ; see also 1992 Districting, 331 Md. at 614 (explaining that the presumption of validity that attaches to a plan that was created in the political branch “may be overcome when compelling evidence demonstrates that the plan has subordinated mandatory constitutional requirements to substantial improper alternative considerations”). Summary Any districting plan is a set of compromises among the geographical criteria to ensure that the plan meets the strictly numerical criterion of a substantially equal population in every district.

It is thus endemic to the process of redistricting that districting decisions that were constitutionally valid during one cycle may no longer be so during a later cycle. See 2012 Districting, 436 Md. at 153 . The population grows and declines at different rates in different places. That inevitably means that districts that previously had populations within the constitutional tolerance for deviation from the “ideal district” no longer do.

And the compromises made among the geographical criteria, such as compactness and the “due regard” factors, that supported a constitutionally valid plan in the past may need to be replaced by a different set of compromises in the present. Past compromises that supported a valid plan are not thereby immunized from future challenge. Conversely, new 22 compromises among the geographical criteria made in support of the “substantially equal population” criterion in a new plan are still entitled to the presumption of validity. In this case, the Petitioners did not allege that the redistricting plan violates the “substantially equal population” requirement or the prohibition against racial and ethnic discrimination.

Rather, the challenges focused on the geographical requirements of Article III, §4 – primarily compactness – and on whether delegate subdistricts should or should not be used in certain circumstances. II The 2022 Redistricting Process A. Timeline Compared to prior redistricting cycles, the timeline for accomplishing redistricting in the current cycle was uniquely challenging, featuring both a delayed beginning and an early deadline. First, the beginning of the process – accessing the changes in population determined by the decennial census – was delayed by the Census Bureau’s late release of census data. By statute, the federal government is to provide the states with the decennial census data by April 1 of the year before the year of the next Congressional election. 11 This time, however, the Census Bureau did not release the census data until August 12, 2021.

Pursuant to State law, the State then adjusted that data to reassign Maryland residents in State and federal correctional institutions for redistricting purposes to the jurisdiction of 11 13 U.S.C. §141 (a), (c). 23 their last known addresses.12 The adjusted data was made available by the Maryland Department of Planning in September 2021. Second, in some redistricting cycles, there is a shorter deadline for accomplishing State legislative redistricting in time for the next election of the General Assembly. That is because (1) the census is done every 10 years, (2) there are four-year intervals between elections for the General Assembly, and (3) dividing 10 by 4 does not yield a whole number. Thus, the redistricting process does not always face the same deadline for establishing General Assembly districts.13 Half of the time, there will be a General Assembly election within two years of the census; the other half of the time, within four years of the census.14 This cycle (the 2020 census followed by a 2022 General Assembly election) was one of the occasions when there was a shorter deadline for State legislative redistricting.

The next cycle (the 2030 census followed by 2034 General Assembly election) will enjoy 12 No Representation Without Population Act, Chapters 66, 67, Laws of Maryland 2010, codified in pertinent part at Maryland Code, State Government Article, §2-2A-01 and Election Law Article, §8-701. In the case of a Maryland resident inmate incarcerated in a jurisdiction other than the inmate’s Maryland domicile, the inmate is reassigned to the jurisdiction of domicile for redistricting purposes. In the case of inmates from other states, the total population count is reduced. In the current cycle, the State population count was reduced by 1,821 persons in compliance with that statute. 13 Because members of the House of Representatives are elected every two years, Congressional redistricting does not involve different intervals. 14 Because the census typically takes at least a year to complete, because a general election is preceded by a primary election, and because districts must be established well in advance of the primary election, the timeline in any particular cycle will always be considerably shorter than two or four years. 24 a longer lead time, as did the previous cycle (2010 census followed by 2014 General Assembly election).

In addition, in this cycle, the State had an earlier primary date than in previous cycles with the shorter interval between census and election year. During the previous short interval cycle (2000 Census – 2002 General Assembly election), the primary election was held in September. However, since that time, Congress passed the federal Military and Overseas Voter Empowerment (“MOVE”) Act,15 which requires election boards to deliver ballots to those voters not later than 45 days before the election. See 52 U.S.C. §20302 (a)(8).

In order to comply with the MOVE Act, the State moved the date of the General Assembly primary election from September to June. Chapter 169, Laws of Maryland 2011, codified at Maryland Code, Election Law Article, §8-201(a)(2)(i). This is the first year that election officials and those involved in redistricting have experienced the perfect storm of delayed census data, a short-interval cycle for redistricting, and the earlier primary election date. This year, there were less than 10 months between the release of the adjusted census data and the scheduled date of the next primary election for the General Assembly.

By contrast, during the last round of redistricting in 2012, there were more than three years between the release of the census data and the scheduled date of the next primary election for the General Assembly. 15 Pub.L. 111-84, 123 Stat. 2190 (2009). 25 B. The 2020 Census Results The United States Census Bureau provided the data for the 2020 census on August 12, 2021. The data showed that the State’s population had increased seven percent over the previous decade.16 More pertinent to the continued legal sufficiency of the existing districting map was whether the increase had occurred evenly across the State. On that question, the census results showed that the increase had occurred only in some places; other places had lost population since 2010. The rate of change also differed markedly from county to county.

Population Swings by Region The Maryland Department of Planning presented the census data by dividing the State into six regions. The raw census data showed that the population changed at different rates and in different directions from one region to another, and even within regions: • Western Maryland. Two of the three counties (Garrett and Allegany) lost population while Washington County’s population increased by 4.9%. • Baltimore Region. The five counties in the Baltimore region (Anne Arundel, Baltimore, Carroll, Harford, and Howard) all experienced increases in population ranging from 3.4% to 15.8%.

Baltimore City’s population declined by 5.7%. • Suburban Washington. All three counties (Frederick, Montgomery, and Prince George’s) gained population, ranging from 9.3% to 16.4%. • Southern Maryland. All three counties (Calvert, Charles, and St. Mary’s) gained population, ranging from 4.6% to 13.7%. 16 The State’s population had increased by 403,672 to 6,177,224 people. 26 • Upper Eastern Shore. The five counties (Caroline, Cecil, Kent, Queen Anne’s, and Talbot) experienced either small gains or small declines in population ranging from a gain of 4.3% to a loss of 4.9%. • Lower Eastern Shore.

Half of the four counties (Dorchester, Somerset, Wicomico, and Worcester) gained population while the other half lost population, with the changes ranging from a gain of 4.9% to a loss of 7%. Below is a map created by Department of Planning that illustrates these changes graphically: For purposes of redistricting, the Department of Planning adjusted 2020 census data in accordance with State law and released those results in September 2021. That data was used to calculate a target or “ideal” population for districts and the two types of subdistricts for purposes of satisfying the “substantially equal population” criterion. 27 Distribution of Number of “Ideal” Districts by County Ideally, each legislative district would contain the same population; as noted earlier, the federal and State constitutions tolerate only a slight variation. As of 2020, Maryland’s total population, as adjusted under State law for redistricting purposes, was 6,175,403.

Under an ideal plan – at least ideal in the sense of having districts with precisely equal populations – each Senate district (and three-member delegate district) would have 131,391 people, each two-member delegate subdistrict (i.e., two-thirds of a Senate district) would have 87,594 people, and each single-member delegate subdistrict (i.e., one-third of a Senate district) would have 43,797 people. Of course, the State’s population does not organize itself neatly within county or municipal boundaries, within geographic markers, or in the form of geometric shapes that equate precisely to those numbers. From the adjusted census data, the Department of Planning computed the number of “ideal” Senate Districts that each county could support, based on the county’s 2020 population. The following chart summarizes the population information and ideal Senate district calculations.17 17 All figures and percentages in this chart were calculated using census data adjusted by the Department of Planning in compliance with the No Representation Without Population Act.

See footnote 12 above. The 2020 adjusted census data is available at: https://perma.cc/C3HY-MCSZ. (Note that the data for St. Mary’s County and Somerset County were flipped in the Department’s chart.). This data thus differs slightly from the unadjusted census data released in August 2021, which is available at: https://perma.cc/WZ26-DSYU.

The 2010 adjusted census data is available at: https://perma.cc/4JCW-E3AZ. 28 % Population 2020 Adjusted # of Ideal Senate County Change Census Districts 2010-2020 Population Kent  -5.1% 19,239 0.15 Somerset  -8.2% 21,807 0.17 Garrett  -4.2% 28,846 0.22 Dorchester  -0.2% 32,720 0.25 Caroline  0.7% 33,414 0.25 Talbot  -0.8% 37,598 0.29 Queen Anne’s  4.0% 49,834 0.38 Worcester  2.1% 52,607 0.40 Allegany  -9.2% 65,852 0.50 Calvert  4.5% 92,925 0.71 Cecil  2.6% 103,963 0.79 Wicomico  5.1% 104,227 0.79 St. Mary’s  8.2% 113,958 0.87 Washington  5.6% 150,517 1.15 Charles  13.7% 166,836 1.27 Carroll  3.4% 172,640 1.31 Harford  6.5% 261,465 1.99 29 Frederick  16.4% 271,985 2.07 Howard  15.7% 331,804 2.53 Anne Arundel  9.6% 585,432 4.46 Baltimore City  -5.9% 589,579 4.49 Baltimore  6.1% 856,673 6.52 Prince George’s  12.0% 968,772 7.37 Montgomery  9.3% 1,062,710 8.09 Clearly, the population swings among the various counties meant that the district lines would have to be re-drawn. Just as clearly, some counties would gain districts or parts of districts; some would lose districts or parts of districts; every county would likely have to share a district with at least one other county; and, necessarily, changes in one district’s boundaries would ripple across at least one neighboring district. C. The Adoption of the 2022 Legislative Redistricting Plan The Governor and the General Assembly each appointed commissions to develop a redistricting plan for consideration at the 2022 regular session of the General Assembly. Both commissions held public meetings across the State in the course of preparing their respective plans.

Both plans were presented to the General Assembly in January 2022. In accordance with Article III, §5 of the State Constitution, the General Assembly passed a joint resolution adopting the plan recommended by its own commission. 30 1. The Governor’s Plan In January 2021, Governor Hogan issued an Executive Order creating a commission that he named the “Maryland Citizens Redistricting Commission” (“Governor’s commission”). COMAR 01.01.2021.02.

That commission consisted of nine members appointed by the Governor. It was comprised of three Republicans, three Democrats, and three members who were not registered with either party. Some members were appointed directly by the Governor and others were appointed by him through a “public application process.” COMAR 01.01.2021.02B(1)(d). The Executive Order provided that none of the members was to be (1) a member of or candidate for the General Assembly or House of Representatives, (2) an employee or officer of a political party or committee, (3) a member of the staff of the Governor, General Assembly, or Congress, or (4) a current registered lobbyist.

COMAR 01.01.2021.02B(3). This was the first time in the modern history of the State’s redistricting that the Governor appointed an advisory body on redistricting that did not include any legislators.18 The Executive Order authorized the commission to consult with “outside experts” and “units of State government” and ordered the units that were subject to the Governor’s direction to assist the commission. COMAR 01.01.2021.02D(5), G, I. The Executive Order also provided certain directions to the Governor’s commission for devising its plan. It directed that the commission should take no account of how 18 See 2012 Districting, 436 Md. at 128 n.5 (listing members of redistricting advisory body appointed by Governor); 2002 Districting, 370 Md. at 327 n.9 (same); 1992 Districting, 331 Md. at 579 n.1 (same); 1982 Districting, 299 Md. at 667 n.3 (same). 31 individuals were registered to vote in the past, how they voted in the past, or what political party they belonged to.

COMAR 01.01.2021.02C(1)(b)(i). The order also directed the commission to take no account of where incumbent officeholders or potential candidates resided or were domiciled. COMAR 01.01.2021.02C(1)(b)(ii). Additionally, the order required that districts be subdivided into single-member delegate districts “[t]o the extent possible and consistent with the Commission’s other duties.” COMAR 01.01.2021.02C(1)(d)(ii).

The Governor’s commission was to present the plan to the Governor’s Office with a report explaining the bases for the decisions embodied in the plans.19 COMAR 01.01.2021.02D(7)(d). According to the report of the Governor’s commission, it held 16 virtual public hearings during 2021, half of which occurred before the census data was released, and additional public working sessions. On November 5, 2021, the Governor’s commission presented its plan to the Governor, who made the plan and report available to the public. 2. The General Assembly’s Plan In July 2021, the President of the Senate and the Speaker of the House of Delegates created a joint Legislative Redistricting Advisory Commission (the “LRAC”), which was charged with preparing a new State legislative districting plan.20 The LRAC consisted of the Senate President, the Speaker of the House of Delegates, two other Senators (one 19 The Governor’s commission was also tasked with developing a plan for Congressional redistricting, which was to be presented to the Governor at the same time.

Like the Governor’s commission, the LRAC was also charged with preparing a 20 Congressional redistricting plan. 32 Democrat and one Republican), and two other Delegates (one Democrat and one Republican) – in total, four Democrats and two Republicans. It was staffed by the Department of Legislative Services (“DLS”).21 Karl S. Aro, a former executive director of DLS, served as LRAC’s Chair; he had previously participated in the legislative redistricting process in 2012 and 2002.22 The LRAC also held 16 public hearings, all subsequent to the release of the census data by the Census Bureau (but at least one before its adjustment by the Department of Planning), beginning in August 2021. The LRAC held its hearings – a mix of in-person and remote hearings (all live streamed and recorded) – for each region of the State. Those meetings opened with explanations by the LRAC’s chair and DLS staff of the redistricting process and the population shifts in the region that necessitated changes in district lines.

Then, at each hearing, the LRAC heard testimony from members of the public and invited further comment. The LRAC invited and received written comments throughout.23 21 DLS is an agency in the Legislative Branch that, according to the General Assembly’s website, “provides central nonpartisan staff services to support and assist the General Assembly as a whole, its committees and subcommittees, and individual legislators.” See https://perma.cc/8Q3L-MSGY; see also Maryland Code, State Government Article, §§2-1202, 2-1204, 2-1207. DLS supports the General Assembly by, among other things, conducting research and drafting legislation for members of the General Assembly and its appointed commissions. 22 In 2002, this Court, when drawing a new map, appointed Mr. Aro and Nathaniel Persily, now a professor at Stanford Law School, as consultants. 2002 Districting, 370 Md. at 350 . Mr. Persily served as a consultant to the Governor’s Commission in the current redistricting cycle. 23 See Maryland General Assembly, Committee Meetings, available at https://perma.cc/X2V5-SNN5. 33 The LRAC released a draft legislative map to the public on December 20, 2021.

The LRAC’s draft map differed from the one proposed by the Governor’s commission. The LRAC held a public hearing on its draft plan on December 22, 2021. At the hearing, members of the public from Owings Mills, an unincorporated area in Baltimore County, questioned whether the proposed map assured adequate representation of the minority population in that area. Comments were also submitted on district lines that separated the municipality of Havre de Grace from Aberdeen, both in Harford County.

Further, a member of the public asserted that part of the current District 33 had been moved into District 31 for the purpose of changing the district of an incumbent Republican delegate. At the close of the hearing, the chair stated that the LRAC was still accepting public comments and that the plan was still in draft form. The LRAC held its final meeting on January 7, 2022 to consider the final draft of its legislative map. The Chair explained the changes that had been made in the interim: an added subdistrict in Owings Mills, changes to lines in Harford County, and “minor” changes in Anne Arundel County.

He thanked DLS staff, some by name, for their work making the maps. At that meeting, on a party-line vote, the LRAC approved a plan to be submitted to the Legislature. 3. Introduction of the Two Plans at the 2022 Legislative Session On January 12, 2022, the two State legislative redistricting plans were filed in the General Assembly. See Senate Joint Resolution No. 3 and House Joint Resolution No. 1 (Governor’s commission’s plan); Senate Joint Resolution No. 2 and House Joint Resolution No. 2 (LRAC plan). 34 The General Assembly promptly held hearings.

First, the Senate Reapportionment and Redistricting Committee held a joint hearing with the House Rules and Executive Nominations Committee on January 18, 2022 to hear testimony and receive comments on both plans. One week later, on January 25, 2022, the House Rules and Executive Nominations Committee held a separate hearing on the Senate version of the joint resolution adopting the LRAC plan and voted to give a favorable recommendation to that bill. At the January 18 hearing, Mr. Aro and Michelle Davis, a DLS staffer, testified. Two members of the LRAC, Senator Griffith and Delegate Luedtke, were also available to answer questions.

Senator King, Chair of the Senate Reapportionment and Redistricting Committee, invited committee members to ask questions of Senator Griffith and Delegate Luedtke, who, she stated, were “here today to answer any questions from Legislators too.” Mr. Aro testified on the use of subdistricts. He stated that the LRAC plan kept districts “pretty much where they were” but, so as to give due regard to county boundaries, “if we had to cross a line, and if at all possible,” a subdistrict was created to ensure that the people in that area would not be “overwhelmed” in an at-large district. Ms. Davis gave an overview of the population changes that had occurred and the changes made in districts in the various regions and counties to account for those population changes. After reviewing the map for the committee, Ms. Davis and Senator King both solicited questions from the committee members about the redistricting map.

No questions were asked about any particular district. 35 Delegate Kathryn Szeliga, a member of the House Rules and Executive Nominations Committee,24 asked Mr. Aro and Ms. Davis who had drawn the maps and whether public money was spent on outside consultants. Ms. Davis testified that making the plan involved a number of aspects so that the staff varied with the particular task, that DLS and LRAC members’ staffs worked on it, that some DLS staff worked on the bill- drafting aspects and others on the map-drawing, and that outside consultants had not been hired.25 Mr. Aro stated that DLS’s budget takes the map-making process into account and that consultants were not hired. The Senate committee gave the bill concerning the LRAC plan a favorable report. Next, the House Rules and Executive Nominations Committee met separately on January 25, 2022 solely to take testimony from the sponsor and vote on the plan.

Mr. Aro, speaking on behalf of the LRAC, stated that the map had not changed since the January 18 meeting in which that House committee had participated. He added that the committee adjusted the existing plan to address population changes, that the plan addressed the constitutional requirements, and that the plan sought to preserve existing districts as much as possible, as many of those districts had been in place for decades and had become 24 Delegate Szeliga is one of the petitioners in Miscellaneous No. 25, one of the consolidated petitions in this case. Delegate Nicholaus R. Kipke, also a member of the House Rules and Executive Nominations Committee and also a petitioner in Miscellaneous No. 25, did not ask any questions. Both delegates were present and voted against the LRAC plan at the January 25 committee meeting. 25 The Dissent complains that the LRAC plan might have been “created … by an outside consultant” and that there was a lack of transparency on that point.

Dissent at 21- 22, 30. In fact, Petitioner Szeliga asked that question during the legislative process, and Ms. Davis answered it. 36 communities of interest. His presentation lasted about two minutes. The committee chair invited questions.

Delegates Szeliga and Kipke did not ask any questions, and neither offered amendments. That committee, too, gave the plan a favorable report. On January 27, 2022, the resolutions embodying the LRAC plan were the subject of a floor debate in the House of Delegates. In the floor debate in the House, Delegate Luedtke, a member of the LRAC, addressed the use of multi-member districts in response to questions from legislators who expressed a preference for single-member districts.

He stated that the “Constitutional default” was for three-member House districts and that the plan used single-member districts variously to mitigate subdivision crossings and ensure minority voters’ opportunity to vote for a candidate of their choice. Asked who was involved in drawing the maps, he responded that DLS and the members’ staff had been involved. None of the five delegates who are petitioners in these cases asked questions during the debate on the LRAC plan before the House of Delegates voted.26 All five voted against the plan. 4. Adoption of the General Assembly’s Plan The Generally Assembly adopted the LRAC plan when the Senate version of the joint resolution passed both houses on January 27, 2022.

As that occurred well before the 45th day of the legislative session, the LRAC plan became law pursuant to Article III, §5 of the State Constitution. We shall refer to it in this opinion as the “adopted plan.” 26 Delegate Szeliga and Delegate Fisher did speak in favor of a proposal to amend the resolution to substitute the plan of the Governor’s commission for the LRAC plan. 37 D. Proceedings in this Court 1. Order Creating Procedures and Schedule On January 28, 2022, the day after passage of the redistricting plan, the Attorney General of Maryland, who anticipated that the plan adopted by the General Assembly would be challenged (as redistricting plans had been challenged during the five previous cycles), filed in this Court a Motion to Promulgate Procedures. That motion asked the Court to adopt and publish procedures applicable to any petitions challenging the adopted plan that might be filed in this Court under Article III, §5 of the State Constitution.

That same day, the Court granted that motion and issued an order, later amended on February 3, setting forth procedures and deadlines for the filing of petitions and alternative plans and for the filing of responses to any such petitions and alternative plans. The Court’s order required that “any registered voter of the State who contends that the 2022 legislative districting plan, or any part thereof, is invalid” file with the Court a petition on or before Thursday, February 10, 2022 at 4:30 p.m. The Order further directed that any such petitions set forth “the particular part or parts of the plan claimed to be unconstitutional under the Constitution of the United States of America, Constitution of Maryland, or federal law; the factual and legal basis for such claims; and the particular relief requested, including any alternative district configuration suggested or requested by the petitioner(s).” The Order appointed Alan M. Wilner, a Senior Judge of this Court, as a Special Magistrate to hold hearings on petitions and responses and to prepare and file with the 38 Court a report of his findings and recommendations. Judge Wilner had served in a similar role with respect to the challenges to the 2012 redistricting plan.

The motion and order were designated as Miscellaneous No. 21 (September Term 2021). 2. Filing of Petitions Within the time allowed by the Court’s Order, four petitions were filed, and each was designated by a separate case number: • Miscellaneous No. 24, filed by David Whitney, a registered voter, on February 9, 2022. This Petition asserted that a district improperly crossed the Chesapeake Bay. The description of the district in question made clear that it referred to the boundaries of a Congressional district rather than a State legislative district.

That Petition was ultimately denied and its allegations are no longer before us.27 • Miscellaneous No. 25, filed by Delegates Mark N. Fisher, Nicholaus R. Kipke, and Kathryn Szeliga on February 10. This Petition objected to the design of 13 districts as 27 The State filed a motion to dismiss, pointing out that the petition did not address State legislative redistricting. Mr. Whitney then amended his petition to explicitly challenge several State legislative districts, none of which crossed the Chesapeake Bay. The Special Magistrate deemed that amendment to be an abandonment of Mr. Whitney’s timely filed petition; noted that, in any event, that petition lacked merit; and recommended the denial of both the original and amended petition.

Mr. Whitney did not except to that recommendation. We agreed with the Special Magistrate that Mr. Whitney’s only timely-filed petition had been abandoned, and, in any event, was insufficient to challenge the adopted State legislative redistricting plan. Accordingly, as part of the April 13, 2022 order resolving the consolidated cases, we denied the petitions in Miscellaneous No. 24. 39 variously non-compact or violative of the “due regard” provisions. Eight of those districts remain at issue before this Court. • Miscellaneous No. 26, filed by Delegates Brenda O. Thiam and Wayne A. Hartman, and a registered voter, Patricia Shoemaker, also on February 10.

This Petition challenged the fact that the plan created subdistricts in some districts and not in others, and incorporated by reference the allegations made in Miscellaneous No. 25. • Miscellaneous No. 27 filed by Seth E. Wilson, a registered voter, also on February 10.28 This Petition challenged subdistrict 2A in Western Maryland on several grounds. On February 11, 2022, the Court consolidated the cases opened for the four petitions with Miscellaneous No. 21 for referral to the Special Magistrate in accordance with procedures set forth in the order in Miscellaneous No. 21. The February 11 order also postponed some of the filing deadlines related to the 2022 primary election, then scheduled for June 28, to accommodate the process for resolving the challenges made by the petitions. On February 15, 2022, the Attorney General, on behalf of the State, filed timely and detailed motions to dismiss each of the petitions. 3.

Proceedings before the Special Magistrate Discovery and Assertion of Legislative Privilege The Special Magistrate set deadlines for the parties to exchange discovery and to notify him of any discovery dispute. A discovery dispute did arise with respect to certain requests made by the Petitioners in Miscellaneous No. 25 to which the State asserted 28 Mr. Wilson filed an amended petition on February 15, apparently to correct a typographical error in a date. 40 legislative privilege. After receiving expedited emailed legal memoranda from the parties and holding a virtual hearing on the matter, the Special Magistrate sustained the State’s assertion of legislative privilege and resolved that dispute in favor of the State. That ruling is described in greater detail in Part IV.B of this opinion.

Hearing on the Merits In light of the time needed for the Special Magistrate to conduct an evidentiary hearing and promptly produce a report on an expedited basis, the Court issued an order on March 15, 2022 postponing the primary election from June 28 to July 19 and adjusting election-related deadlines that necessarily had to precede the date of the primary election. Meanwhile, apart from the one discovery dispute, the parties cooperated in expediting the consolidated case to meet the challenging schedule. They submitted comprehensive Stipulations of Fact to the Special Magistrate. On March 23 and 24, 2022, the Special Magistrate presided over a hearing on the four consolidated cases.

The Petitioners’ various allegations, requests for relief, and evidence, and the State’s responses and evidence are set forth below in the discussion of each of the remaining three petitions. 4. The Special Magistrate’s Report, the Petitioners’ Exceptions, and Oral Argument and Decision in the Court of Appeals The Special Magistrate submitted his Report to this Court on April 4, 2022. 29 In that report, he recommended that this Court deny all of the petitions. The conclusions of 29 The report of the Special Magistrate, and the extensive exhibits to that report, may be found on the Court of Appeals website under “Highlighted Cases” at this link: 41 the Special Magistrate are discussed in greater detail in Parts IV, V, and VI of this opinion below. The Petitioners in Miscellaneous Nos. 25, 26, and 27 filed exceptions to the recommendations relating to their respective petitions, with supporting memoranda.

The State responded with its own memoranda supporting the Special Magistrate’s recommendations. This Court heard oral argument concerning the exceptions on April 13, 2022. Following the hearing, the Court denied the petitions in an order, indicating that its opinion would follow. That order appears in Appendix A to this opinion.

III Judicial Review of the Adopted Plan A. Role of the Court In this context, the Court exercises original jurisdiction under Article III, §5, not appellate review. It is a unique type of judicial review of actions taken by the Governor or the Legislature. That jurisdiction has been triggered under the Maryland Constitution by challenges to a legislatively-adopted districting plan for the General Assembly. In addressing challenges to a redistricting plan, this Court’s role “is limited to determining whether the legislative apportionment plan complies with the applicable constitutional principles.” 2012 Districting, 436 Md. at 159 .

Absent proof of a violation, “it is not the Court’s role to determine how a legislative apportionment plan best may embody the ideals supporting those principles.” Id. That is because the Maryland https://mdcourts.gov/sites/default/files/import/coappeals/highlightedcases/2022districting /20220404reportofthespecialmagistrate.pdf . 42 Constitution assigns responsibility for the drawing of a State legislative map to the Executive and Legislative Branches of Maryland government. The “political branches are the primary actors” in redistricting and “because of this constitutional commitment, as a matter of the separation of powers, [they] may legally pursue a wide variety of political aims” in that process. Id. at 150 .

Thus, unless the Court finds that an adopted plan violates the applicable laws, the drawing of a districting map is not a core judicial power such that this Court may substitute its preferred district boundaries for the ones that the Legislature has adopted. See 2012 Districting, 436 Md. at 159 (noting that choices made in the district boundaries are “political one[s], well within the authority of the political branches to make”); see also Murphy v. Liberty Mutual Company, 478 Md. 333, 372-82 (2022) (explaining the constraints that the Separation of Powers clause in Maryland’s Declaration of Rights places on the exercise by one branch of government of core powers belonging to another); Getty v. Carroll County Board of Elections, 399 Md. 710, 741 (2007) (“[T]he power of judicial review does not equate to the power to exercise functions that are explicitly vested in the other organs of the government.”). This Court has recognized, for example, that “it is not for the judiciary to determine whether a more compact district could have been drawn than that under challenge; the court’s province is solely to determine whether the principles underlying the requirement of compactness of territory have been considered and properly applied considering all relevant circumstances.” 1982 Districting, 299 Md. at 680-81 . In sum, the Court’s role is to assess the plan that has been adopted according to the constitutional process and to consider any contention that the adopted plan fails to comply 43 with the Constitution.

It is not to determine whether there is another plan, either proposed or that the Court itself can conjure, that would be better. B. Burdens of Proof As with any complaint filed in a circuit court, conclusory statements of law are not sufficient by themselves to state a claim.30 And, as in past redistricting cases, this Court’s initial order in Miscellaneous No. 21 established procedures for any challenge to the 2022 redistricting plan that set forth basic pleading requirements – that a petition state the petitioner’s “objection to the plan”; identify the “particular part or parts of the plan” claimed to violate the law; state “the factual and legal basis for such claims”; and specify “the particular relief requested, including any alternative district configuration suggested or requested by the petitioner(s).” The sufficiency of a petition to state a claim poses a legal question that the Court may address before referring the petition for an evidentiary hearing before a special magistrate. In this instance, the State filed motions to dismiss each of the four petitions shortly after they were filed. Given the exigency of time, we referred all of them to the Special Magistrate for a hearing without first resolving the motions to dismiss.

We later accepted the Special Magistrate’s recommendation to deny one of the petitions because, although timely filed, it clearly failed to plead a violation of Article III, §4 as to a State legislative district. See footnote 27 above. The State pointed to certain deficiencies in the other 30 See, e.g., RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 644 (2010) (“The well-pleaded facts setting forth the cause of action must be pleaded with sufficient specificity; bald assertions and conclusory statements by the pleader will not suffice.”). 44 petitions as well. However, as we have an evidentiary record and recommendation from the Special Magistrate as to the merits of the other three petitions, we will address the merits and not resolve these cases on those procedural grounds.

As to the merits, this Court’s case law on State legislative redistricting establishes the following principles regarding the burdens of proof: • Presumption of Validity. Every opinion of the Court that has reviewed the substance of a redistricting plan has started from the premise that an adopted plan and the policy choices reflected in it are to be accorded a presumption of validity. See 2012 Districting, 436 Md. at 165 ; 2002 Districting, 370 Md. at 361, 363, 373 ; 1992 Districting, 331 Md. at 614-16; 1982 Districting, 299 Md. at 688 . • Burden on Challengers. The challengers have the burden of demonstrating that a redistricting plan is not valid. 2012 Districting, 436 Md. at 137 ; 1992 Districting, 331 Md. at 610; 1982 Districting, 299 Md. at 673, 683 . • Compelling Evidence of a Violation.

To overcome the presumption of validity and satisfy the burden of proof, a challenger must present “compelling evidence” that a plan violates Article III, §4 in some way. 2012 Districting, 436 Md. at 137, 159 ; 2002 Districting, 370 Md. at 373 ; 1992 Districting, 331 Md. at 597, 614. • Sufficient Evidence of Compliance. If a challenger presents the requisite “compelling evidence” of a violation of Article III, §4, the State must produce “sufficient 45 evidence” to support a finding that the plan complies with Article III, §4. 2012 Districting, 436 Md. at 137-38 .31 31 In dissent, Judge Gould expresses a preference for the procedure that the Court followed in the 2002 Districting case when the Court was dealing with 14 separate and varied challenges to the redistricting plan. Dissent (Gould, J.) at 2-3. In the 2002 case, in contrast to this case and the 2012 Districting case, the Court issued an initial scheduling order that provided for a preliminary review of the petitions by the Court before referral of issues to a special master.

The 2002 scheduling order, like the order in the current case, set a deadline for filing petitions and required petitioners to specify the parts of the plans challenged, the factual and legal basis for the challenge, and the particular relief sought, including suggested or requested alternative district configurations. Order (March 1, 2002) at ⁋1. And, like the scheduling order in the current case, the 2002 order set a deadline for the State’s response. From that point, the 2002 order set forth a different procedure.

In its 2002 order, the Court set a deadline for the submission of legal memoranda “addressing the facial validity of the plan” and “issues that should be referred to a Special Master,” set a hearing date before the Court for the Court’s initial determination of those questions, and set a hearing date for proceedings before the special master, with a deadline for the special master’s submission of a report on the referred issues. Order (March 1, 2002) at ⁋⁋3-6. Accordingly, upon the filing of 14 timely petitions and the parties’ other submissions in the 2002 case, the Court held a preliminary hearing to determine which issues to refer to the special master, referred certain issues to the special master, and placed the burden on the State to produce sufficient evidence of compliance with Article III, §4 on those issues. The Court left the burden on the challengers to show a violation of federal requirements. 2002 Districting, 370 Md. at 329, 336-37, 368 .

In the 2012 Districting case, only three challenges were filed to the adopted plan, and the Court did not conduct its own preliminary proceeding to assess the potential merits of those challenges before referring them to the special master. Instead, in an opinion by Chief Judge Bell, the Court stated that the challengers bore the burden of producing “compelling evidence” of violations of Article III, §4 before the burden would shift to the State to produce “sufficient evidence” of compliance with the requirements of that constitutional provision. 2012 Districting, 436 Md. at 137-38 . This case, which was initiated by a similar number of challenges as in 2012, has proceeded in the same manner as the 2012 Districting case. There is much to be said for the procedure that the Court followed in 2002; as to some allegations, an early disposition 46 IV Miscellaneous No. 25 A. The Petition Petitioners Fisher, Kipke, and Szeliga, all members of the General Assembly who had voted against the adopted plan, alleged in their Petition that the plan violated Article III, §4, as well as other provisions of the Maryland Constitution.32 The Petition identified 13 districts that allegedly failed to satisfy the criteria of Article III, §4.

The primary defect, according to the Petition, was lack of compactness. The Petition also alleged that the drawing of these districts failed to give due regard to the boundaries of political subdivisions and that, with respect to one district, violated the requirements of contiguity and due regard to natural boundaries. For relief, the Petitioners asked that the Court direct the General Assembly to enact a new legislative districting plan, with the plan proposed by the Governor’s commission as the default if the General Assembly failed to do so.33 B. Discovery Dispute and Legislative Privilege The Special Magistrate had set a March 11, 2022 deadline for the exchange of discovery in all of the cases. He instructed the parties to notify him, before that date, of of the State’s motions to dismiss might well have narrowed the issues before the Special Magistrate. 32 Specifically, they cited Articles 7, 24, and 40 of the Maryland Declaration of Rights and Article I, §7 of the Maryland Constitution.

Before us, they are no longer pursuing their arguments under those provisions. 33 At oral argument before us, they proposed a third option: that the Court charge a Special Magistrate with drawing up a new plan. 47 any disputes that they were unable to resolve on their own. In Miscellaneous No. 25, the parties cooperatively exchanged discovery and other information on the tight timetable set by the Special Magistrate. On March 3, they timely advised him of a discovery dispute that they were not able to resolve. Discovery Request and Response; Assertion of Legislative Privilege The Petitioners in Miscellaneous No. 25 sought the following information, all specific to the districts that they had challenged: (1) who was responsible for the actual drawing or construction of the specific legislative districts Petitioners have challenged; (2) if a computer program was used, what criteria was the program instructed to use to draw the legislative districts Petitioners have challenged; (3) who provided instructions to the actual map drawer(s) regarding what factors or other criteria were to be used in drawing the legislative districts Petitioners have challenged; and (4) what specific instructions were given to the map drawer(s) regarding the various legislative districts Petitioners have challenged.

In response, the State provided the name of the computer program that DLS staff had used to draw the maps, but declined to respond to the other questions on the ground that the information was protected by legislative privilege. Counsel jointly notified the Special Magistrate of the impasse and, at his request, emailed legal memoranda on that issue to him on an expedited basis.34 34 The Dissent asserts that these discovery requests were “seeking to show that the NCEC’s Democratic Performance Index guided the drawing of the districts during 2022 Districting.” Dissent at 27. Perhaps that was the Petitioners’ purpose in making the requests, but Petitioners did not say that in their filings in the record and the Dissent does not point to any particular source for that assertion. 48 In arguing that the Special Magistrate should overrule the assertion of legislative privilege, the Petitioners urged the Special Magistrate to apply a five-factor test used by the federal district court in a Congressional redistricting case. See Benisek v. Lamone, 241 F. Supp. 3d 566, 575 (D. Md. 2017), vacated and remanded sub nom.

Rucho v. Common Cause, 139 S. Ct. 2484 (2019). In response, the State argued that the information was protected by two provisions in the Maryland Constitution: Article 10 of the Maryland Declaration of Rights (“That freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature”) and Article III, §18 (“No Senator or Delegate shall be liable in any civil action, or criminal prosecution, whatever, for words spoken in debate.”). Both parties cited two opinions in which the Court of Special Appeals had discussed legislative privilege. See Montgomery County v. Schooley, 97 Md. App. 107, 116 (1993), and Floyd v. Baltimore City Council, 241 Md. App. 199 , 213 (2010).

Additionally, the State cited Blondes v. State, 16 Md. App. 165 (1972) and cases in which courts discussed Article III, §18 in the context of a legislator’s liability. Ruling of the Special Magistrate On March 10, 2022, after holding a remote informal conference with the parties on the issue, the Special Magistrate upheld the assertion of legislative privilege. 35 In his memorandum opinion, he observed that the Benisek court had not relied on Maryland law when it addressed the scope of Maryland legislators’ privilege under Maryland’s Speech 35 An amended version of that order contained minor editorial changes. 49 and Debate Clause. He then noted that, in Schooley, the Court of Special Appeals had adopted from Gravel v. United States, 408 U.S. 606 (1972), the principle that “a legislator, even if not a party to the action and thus not subject to any direct consequence of it, cannot be compelled to explain, other than before the legislative body of which he is a member, either his legislative conduct or ‘the events that occurred’ in a legislative session.” Schooley, 99 Md. App. at 117. Further, the Special Magistrate stated, the Schooley court had cited Marylanders for Fair Representation v. Schaefer, 144 F.R.D. 292 (D. Md. 1992), for the proposition that a legislator, acting within the sphere of legitimate legislative activity, may not be required to testify regarding those actions.

Schooley, 97 Md. App. at 118 . With regard to what conduct falls within the sphere of legitimate legislative activity, the Special Magistrate cited another federal case, Bruce v. Riddle, 631 F.2d 272 (4th Cir. 1980), for the proposition that “for purposes of the privilege, [the legislative process] includes more than just proceedings at regularly scheduled meetings of a legislative body” but includes as well “a meeting with citizens or private interest groups” and, if it includes that, “must also include caucuses and meetings with political officials called to discuss pending or proposed legislation.” Schooley, 97 Md. App. at 123 , citing Riddle, 631 F.2d at 279 . In summary, the Special Magistrate stated, “the privilege stems from the general proposition that legislators and their staff and consultants cannot be compelled to explain 50 their legislative conduct or events that occurred in a legislative session, other than before the legislative body.” He therefore sustained the State’s assertion of legislative privilege.36 C. The Hearing on the Merits Before the Special Magistrate At the hearing before the Special Magistrate on March 23 and 24, 2022, the Petitioners and the State stipulated to the basic facts about the 2022 redistricting process and each of the districts in question. Various maps and charts were introduced into evidence.

Both sides relied primarily on expert testimony analyzing that data. 37 The Petitioners offered, and the Special Magistrate accepted, Sean Trende as an expert on “political science, redistricting [matters], and calculating compactness” to present computations on how the challenged districts scored on various quantitative tests that purport to measure compactness. Mr. Trende had been an attorney in private practice through 2010, had earned a master’s degree in applied statistics in 2019, was working on a Ph.D in political science, and had experience in redistricting matters. As its only witness, the State offered, and the Special Magistrate accepted, Professor Alan Lichtman of American University as an expert on “voting rights, American political history, historical 36 The Special Magistrate noted in his memorandum order that counsel for the Petitioners in Miscellaneous No. 26 had joined on the discovery issue at the oral argument, presumably because they had incorporated by reference the allegations made in Miscellaneous No. 25. See Part V of this opinion.

However, there is nothing in the record to indicate that the Petitioners in Miscellaneous No. 26 had themselves made any discovery requests that had been denied on the basis of legislative privilege. Accordingly, we will treat this issue as specific to Miscellaneous No. 25. 37 We discuss that testimony in greater detail below. 51 statistical methodology, quantitative methodology, and redistricting.” For what it is worth, Professor Lichtman’s experience and his academic credentials were considerably more extensive than Mr. Trende’s. Both experts were cross-examined about the fact that each had exclusively testified on a partisan basis in the past – Mr. Trende in Republican challenges to redistricting plans created by Democratic-leaning bodies and in defense of plans created by Republican-leaning bodies; Professor Lichtman in Democratic challenges to redistricting plans created by Republican-leaning bodies and in defense of plans created by Democratic-leaning bodies. Both experts were also cross-examined about criticism of their respective analyses by courts in previous cases.

The Petitioners also called as witnesses three Republican members of the House of Delegates, including two of the Petitioners. The hearing concluded with almost two hours of oral argument by the parties.38 D. The Recommendation of the Special Magistrate The Special Magistrate filed his report with the Court on April 4, 2022. With respect to Miscellaneous No. 25, the Special Magistrate observed that the hearing had focused almost entirely on one criterion in Article III, §4 – compactness. He noted that there was no assertion that the adopted plan violated either the substantially equal population criterion or the Voting Rights Act.

He found that “[a] comparison of the current plan with the one it replaces shows that an attempt was made to keep voters in their current districts, 38 At the conclusion of the argument, the Special Magistrate thanked counsel for the cooperative manner in which they had litigated the case. Our review of the video of that proceeding confirms the high standard of professionalism exhibited by counsel on both sides. 52 with which they are familiar, and to avoid crossing political or natural boundary lines except when required to achieve or maintain population equality.” He concluded that there was no compelling evidence of a constitutional violation and recommended that the petition be denied. E. Petitioners’ Exceptions to the Recommendation of the Special Magistrate Petitioners excepted to the Special Magistrate’s recommendation, arguing that eight of the challenged districts should have been found to violate Article III, §4 – seven as to compactness (Districts 12, 21, 22, 23, 24, 33, and 47) and one as to contiguity and due regard for natural boundaries (District 27). As to those eight districts, Petitioners argued that they had presented compelling evidence of constitutional violations and had therefore shifted the burden of proof to the State to justify the validity of the plan.

Accordingly, those are the issues and districts that we shall address here. See 1992 Districting, 331 Md. at 584-85 (addressing only the challenges that were the subject of exceptions filed by petitioners to the special master’s report). Petitioners also excepted to the Special Magistrate’s ruling, based on the doctrine of legislative privilege, that they were not entitled to discover certain information about the creation of the adopted plan. We also address that exception below.

F. Analysis As noted above, the Petition that initiated Miscellaneous No. 25 had asserted a wide range of violations of Article III, §4 in 13 of the 47 legislative districts in the adopted 53 plan.39 By the time of the hearing before the Special Magistrate, the alleged violations had largely been reduced to the question of compactness of some of those districts. We will address first whether there is compelling evidence of a violation of Article III, §4, related to the issue of compactness, with particular reference to the seven districts identified by Petitioners. We bear in mind as we do so that one district in a districting plan can seldom be viewed without regard to the characteristics of its neighboring districts. Next, we will address whether there is compelling evidence that District 27 violates Article III, §4 for failure to satisfy the contiguity and due regard criteria.

Then we will address Petitioners’ exception to the Special Magistrate’s ruling on legislative privilege. Finally, we will address certain arguments made in the dissenting opinion of Chief Judge Getty that relate to Miscellaneous No. 25. 1. Compactness With respect to their allegations that seven districts failed to comply with the compactness criterion of Article III, §4, Petitioners relied on (1) the shapes of those districts – what they called the “eye test”; (2) the testimony of Mr. Trende concerning certain 39 For example, in alleging that various districts did not give due regard to political subdivisions, as required by Article III, §4, Petitioners cited instances in which districts crossed county lines and asserted that those districts also divided 57 specific “towns or localities.” See Petition at ¶¶28, 32, 36, 41, 45, 52, 58, 62, & 67. However, the adopted plan had the same number of districts with county crossings as their preferred plan (the plan of the Governor’s commission), and Petitioners stated at the hearing that only one crossing of a municipality – Glenarden in Prince George’s County – was at issue in the districts they had challenged.

Although they contended that the districts encompassing that municipality and Hyattsville, another municipality, are not compact, they did not specifically allege that either town was the subject of partisan gerrymandering. In their exceptions, they did not pursue a contention that the crossing of Glenarden violated Article III, §4. 54 quantitative metrics and comparisons that he made; and (3) the testimony of two legislators providing their own analysis of the consequences of the way in which three of those seven districts were drawn. The Eye Test As to the visual examination test, it is certainly true that none of the legislative districts in the adopted plan resembles either a circle or a square and that some districts have odd shapes. But the same can also be said of past State redistricting plans approved by this Court, including the one drawn by the Court itself in 2002, and of the plan proposed by the Governor’s commission for this cycle.

The mapmakers of all of those plans had to contend with what this Court has characterized as the “bizarre” shape of Maryland itself and the irregular shapes of some of the State’s counties40 and municipalities.41 One district that has had an odd shape in its several iterations in different plans is District 12. Its shape in each of the three most recent redistricting plans is illustrated below: 2002 Court-drawn plan: 40 For example, Charles County, bounded on two sides by the Potomac River, might not score well on any compactness test. 41 Examples of irregularly-shaped municipalities include Bowie, Glenarden, Hyattsville, LaPlata, and Laurel. 55 2012 Court-Approved Plan: 2022 Adopted Plan: The fact that a particular district had a peculiar shape in the past does not immunize a map from close scrutiny in the present. But the fact that past plans resorted to oddly- shaped districts to satisfy the “predominant criterion” of the substantially equal population and the other federal and State constitutional requirements illustrates that an odd shape alone is not compelling evidence of a violation. Mr. Trende’s Measures, Maps, and Comparisons Mr. Trende’s testimony concerning certain quantitative metrics was apparently intended to provide the Court with some context for assessing the degree to which these districts deviated from what one might expect for a compact district in Maryland. 56 However, the comparisons that Mr. Trende made were not those that would have been helpful in providing the desired context.

Mr. Trende himself did not offer an opinion or conclusion as to whether the challenged districts did or did not satisfy Maryland’s compactness criterion. Rather, he offered a comparison of the challenged districts with a data set of other districts from around the country – a comparison that suggested that the challenged districts lagged behind others on a compactness scale. First, Mr. Trende presented charts showing the scores of the challenged districts on four quantitative tests that are known as the Reock, Polsby-Popper, Inverse Schwartzberg, and Convex Hull tests. Each measures the “compactness” of a district by comparing its area and perimeter in different ways to those of a purportedly ideal reference shape.42 He 42 As described by the expert witnesses and the Special Magistrate in his report, those four tests are: • Reock test: The ratio of the area of the legislative district to the area of a circle that encompasses the district, known as the minimum bounding circle.

The score is between 0 and 1, with a higher score demonstrating a more compact district. In this measurement, a circle represents a fully compact district. • Polsby-Popper test: The ratio of the area of the legislative district to the area of a circle with the same circumference, or perimeter, as the subject district. The score ranges between 0 and 1, with more compact districts receiving higher scores. • Inverse Schwartzberg test: The Schwartzberg test measures the ratio of the perimeter of the legislative district to the circumference or perimeter of a circle with the same area as the district. The inverse of the score on the Schwartzberg test yields a number between 0 and 1 with a higher number indicating greater compactness. 57 testified that he used several tests because there is no “magic number” for measuring compactness.

Using the scores of the challenged districts on these metrics, Mr. Trende constructed a summary chart that compared the challenged Maryland districts with 13,473 mapped state legislative districts (both house and senate) nationwide for the years 2002 through 2020. For each challenged Maryland district, that chart showed the number of districts in the data set that scored lower than the challenged district on all four of the tests. In other words, if a district in the data set scored better on any one of the four metrics than a challenged Maryland district, the data set district was graded as “better” than the challenged district on the issue of compactness. This, of course, means that a challenged Maryland district could score better than a data set district on three out of the four tests for compactness, but would be classified as “worse” than the data set district because it did not do so on the fourth test.43 We do not know whether or how frequently that phenomenon occurred in Mr. Trende’s analysis.

He did not say. • Convex Hull test: A similar test to the Reock test, except it uses a polygon instead of a circle to enclose the district. Mr. Trende noted that scores on these tests were not always consistent with one another as a district shaped like a square or rectangle might not score particularly high on a circle- based metric. 43 An analogy might be made to a batter in a baseball game who has three hits out of four at bats against a pitcher – resulting in an incredible .750 batting average against that pitcher. Mr. Trende’s methodology would find that the pitcher had prevailed in that game and credit the batter with a .000 batting average. 58 Based on this selective comparison, only 0.71% of the districts in the data set were “worse” than one of the challenged Maryland districts (District 12), and 43.56% of the mapped districts were “worse” than District 27. This led him to conclude that District 12 “is an outlier” – presumably meaning not very compact – and that District 27 is “pretty compact.” This was the closest that Mr. Trende came to stating an opinion on compactness.

Mr. Trende plotted the distribution of the data set districts by their scores on each metric on four histograms, resulting in the familiar bell curve for most data distributions.44 He indicated on each histogram where the scores of each challenged district fell in the distribution. In at least one of the histograms, the challenged districts appear to fall on both sides of the median. However, Mr. Trende did not calculate any reference measure, such as a standard deviation,45 that a student learns in Statistics 101 for ascribing significance to a data point on a bell curve. Nor did he provide any useful analysis of these histograms, preferring to rest his conclusions on the summary chart mentioned above. 44 When graphed, many large data sets tend to distribute themselves in what is commonly known as the “bell curve,” clustering around the average and tapering off on either side.

Basic statistics regarding the distribution can identify biases and outliers within the data set. See Wolfram Alpha, “Bell Curve” (2022), available at https://perma.cc/KP5Y- 4JYR. 45 The standard deviation is a measure of how spread out a data set is from the average. This statistic is “useful because, given normal chance, an outcome will occur within one standard deviation of the average about two-thirds of the time.” See Samuel S.- H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L. Rev. 1263 , 1288 (2016).

The Supreme Court has noted that as a general rule, “if the difference between the expected value and the observed number is greater than two or three standard deviations,” the outcome could indicate manipulation. See Castaneda v. Partida, 430 U.S. 482, 496 (1977). 59 More to the point, it seems odd to compare the shapes of districts in a state like Maryland – which itself resembles a paint splatter that someone half-heartedly started to wipe up – with districts in the many states that are relatively rectangular in shape. 46 For that reason, some scholars have questioned the relevance of compactness comparisons made across state lines, with Maryland being held up as a prime example of why such comparisons are not appropriate. As one study explained: [O]ne need only look at Colorado and Maryland side by side to justify [the rule against comparisons of compactness scores across states]. For nearly every measure, the districts of Maryland will be less compact than the districts of Colorado.

Maryland, of course, has a jagged, incising coastline which skews the score of most compactness measures. But these are forgone conclusions, as state borders do not change and congressional districts are subject to these boundaries. So, using most traditional compactness measures, comparisons across states are inappropriate. Carl Corcoran and Karen Saxe, Redistricting and District Compactness, in THE MATHEMATICS OF DECISIONS, ELECTIONS, AND GAMES (2014 ed.

Karl-Dieter Crisman, et al.).47 Mr. Trende provided no basis for his implicit assumption that a comparison of districts in other states would be informative on the compactness of districts drawn under 46 In his written testimony presented to the General Assembly, Professor Persily, the consultant to the Governor’s commission, noted that the “strange shape of Maryland and some of its counties” necessarily affected compactness scores. 47 Along the same lines, Professor Lichtman testified that Maryland ranked near the bottom on a variety of measures of the compactness of states themselves. One of the State’s exhibits provided the precise ranking of the states on the compactness scores, but it is not clear from the video record of the hearing that the exhibit itself was received in evidence. 60 Maryland law. Specifically, he made no apparent effort to exclude the scores of districts in states where the districting requirements differ from those in Article III, §4; made no effort to exclude the numerous states whose shapes make them more conducive to division into neat shapes than that of Maryland; provided no basis for assessing the scores of the challenged Maryland legislative districts – that is, State Senate districts – by reference to a data set that included districts from other states that would be the equivalent of subdistricts in Maryland (that is, the data set included both senate and house districts from other states); and seemingly did not weight the analysis to account for the varying number of districts in each state. What is perhaps more informative than what Mr. Trende did is what he did not do.

Mr. Trende did not compare the test scores of the challenged districts specifically with those of other maps of Maryland districts,48 such as the districts approved in prior redistricting cycles, or with those in the plan proposed by the Governor’s commission.49 He said that he made only the comparison that Petitioners had asked him to make. 48 Some of the 13,473 districts in the data set would have been Maryland districts and subdistricts from past redistricting cycles, but Mr. Trende apparently made no effort to run the comparison specifically against those districts. 49 Although Mr. Trende depended on test scores to conclude that most of the districts were low on a compactness scale, he offered no testimony on how the Petitioners’ default alternative – the Governor’s commission plan – would fare in the same comparison with data set districts. In written testimony presented to the General Assembly on January 18, 2022, Professor Persily, that commission’s consultant, provided tables of compactness scores for districts in that plan, as well as the LRAC plan. While most of the districts in the Governor’s commission plan scored higher on most metrics than most of the districts in the LRAC plan, the mean compactness scores of the two plans on most measures were not dramatically different and Professor Persily did not opine that the LRAC plan was 61 Mr. Trende did not do anything other than compute and compare compactness scores. He provided no opinions or analysis of the other districting factors set forth in Article III, §4.

He did not analyze county or border crossings, the effect of population shifts, the existence of Voting Rights Act districts, the shapes of Maryland’s subdivisions, or its natural boundaries. He testified that he had not been asked to undertake those analyses. Although he had appeared as an expert in a number of previous cases involving allegations of partisan gerrymandering, he said that he had not analyzed the adopted plan as to whether it advantaged Democrats or disadvantaged Republicans, and he offered no opinion on that subject. Nor did he express an opinion on whether the shapes of the challenged districts or his comparisons demonstrated partisan gerrymandering.50 Specifically, he did not opine on whether the configuration of any of the challenged districts would impermissibly dilute or enhance the voting strength of any discrete group.

See 1982 Districting, 299 Md. at 687 . The compactness comparison made by Mr. Trende is not instructive on the issues before the Court. His number crunching had the appearance of rigor, but contributed little constitutionally deficient. That written testimony did not include any comparison to compactness scores of past Maryland districting plans. 50 In the State’s case, Professor Lichtman testified that a comparison of compactness scores of Maryland districts to the scores of districts in other states was meaningless and that the Governor’s plan also contained some districts with low scores and county crossings.

Professor Lichtman did offer an analysis of the adopted plan on the issue of partisan gerrymandering which, he said, should be analyzed instead by reference to voter affiliation statistics and past election results. He testified that, by most measures of partisan gerrymandering used in political science literature on the subject, the adopted plan advantaged Democrats “slightly less” than the prior 2012 districting plan. 62 to meeting the Petitioners’ burden. The Special Magistrate apparently accorded little weight to it. Given the superficial quality of his analysis and the lack of any opinion by Mr. Trende whether the adopted plan demonstrated the alleged partisan gerrymandering, we agree that it is entitled to little weight.

Mr. Trende’s Past Election Result Map Overlays In addition to the charts and histograms concerning test scores, Mr. Trende produced maps in which the challenged districts were overlaid by a color scheme that indicated the share of the vote received in past elections by certain Republican candidates – Governor Hogan in 2018, former President Trump in 2020, and an unsuccessful Republican candidate for Maryland Attorney General in 2018. The color scheme followed the convention of displaying Democratic-leaning areas in various shades of blue and Republican-leaning areas in various shades of red. Mr. Trende provided no analysis of the significance of those maps on the issues of compactness and partisan gerrymandering. Indeed, he provided no analysis of those maps at all.

The Four Challenged Districts in Prince George’s County It is evident from the map overlay exhibits that, for the four challenged districts that lie completely within Prince George’s County (Districts 22, 23, 24, and 47), partisan gerrymandering was not a likely source of their odd shapes. On those maps, past election results favoring Democrats are represented by shades of blue. Each of the four Prince George’s County districts lies in a sea of dark blue. Even if one of those districts could be squared or rounded off in one direction or several, consistent with the other constitutional 63 criteria, the map overlays suggest that the partisan make-up of those districts would not change.

In written testimony presented to the General Assembly and introduced by stipulation before the Special Magistrate, the architect of the plan of the Governor’s commission noted that districts in Prince George’s County would contain majority African- American and Hispanic populations and that the many municipalities in that county have “strange” and “contorted” shapes. Special Magistrate Report Appendix II (Written Testimony of Nathaniel Persily at 22). Consistently with those observations, Ms. Davis of DLS testified before the General Assembly committees that District 23 “no longer has sub- districts because of the changing racial make-up in that area” and “moved further south to respond to the population growth in southern Maryland.” She further testified that “minimal changes were made to Districts 24, 25, and 26, including a slight move to the south for Districts 25 and 26 and that was again to respond to the population growth or to capture that population growth in southern Maryland.” With respect to these districts, Petitioners’ challenge relied entirely on the “eye test” and Mr. Trende’s compactness comparisons.51 Neither Mr. Trende nor any other witness for the Petitioners provided an opinion on whether their shapes and scores on various 51 The Dissent suggests that “the Prince George’s County districts that … border the District of Columbia arguably provide the best opportunity to create compact districts” because that boundary is a straight line. Dissent at 36.

That suggestion does not account for the need to give due regard to the oddly-shaped municipalities in that area, such as Cheverly, Seat Pleasant, and Colmar Manor. 64 metrics were in aid of partisan gerrymandering.52 The eye test and the use of mathematical measures by themselves seldom amount to “compelling evidence” of a violation of Article III, §4. The Reock and Schwartzberg tests pre-date the addition of the compactness criterion to the Maryland Constitution.53 The Polsby-Popper test has been available during three redistricting cycles.54 None has previously figured prominently in this Court’s review of a redistricting plan. As this Court has repeatedly explained, neither the drafters of Article III, §4 nor the voters who ratified that provision could have intended that the constitutionality of Maryland’s districts be gauged by the results of quantitative tools devised by political scientists looking at districting nationally. 1982 Districting, 299 Md. at 687-88 . That is 52 Petitioners argued that the Special Magistrate’s denial of their discovery requests made it difficult to prove their allegations of extreme partisan gerrymandering.

Facts relevant to the dilution of the votes of a discrete partisan group would be proven through evidence of changes that a redistricting made to the partisan makeup of the challenged districts; that is the evidence that, depending on the degree of the change, might establish an impermissible partisan gerrymander. Cf. Rucho v. Common Cause, 139 S. Ct. 2484, 2497 (2019) (“The ‘central problem’ is not determining whether a jurisdiction has engaged in partisan gerrymandering. It is ‘determining when political gerrymandering has gone too far.’”) (citation omitted).

As discussed below, Petitioners introduced a chart of changes in precincts, by party affiliation, for District 33. Presumably, if there was evidence that the partisan make-up of the Prince George’s county districts had changed as a result of the adopted plan, they could have generated the same information and presented it to the Special Magistrate. But the record contains no such evidence. 53 Ernest C. Reock, Jr., Measuring Compactness as a Requirement of Legislative Apportionment, 5 Midwest J. Pol. Sci. 70 (1961); Joseph E. Schwartzberg, Reapportionment, Gerrymanders, and the Notion of “Compactness”, 50 Minn.

L. Rev. 443 (1966). 54 Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301 (1991). 65 so for two reasons. First, as this Court’s precedent instructs, anyone familiar with Maryland and the shapes of its subdivisions and waters can easily tell that quantitative measurements based on shapes are not likely to be instructive. Id. Second, had the people of the State intended to incorporate into the compactness provisions a test such as the Reock test or to mandate particular shapes, they could easily have done so.

And, they can yet do so; for example, the Missouri Constitution was amended in 2020 to specify the shapes that the mapmakers should try to attain in that largely rectangular state.55 It is not the Court’s role to insert such provisions into the Maryland Constitution.56 In addressing alleged violations of Article III, §4, this Court has: expressed skepticism about the usefulness of “a mathematical formulation” in assessing compliance with Article III, §4, see 1982 Districting, 299 Md. at 688 ; made clear that an odd shape of one district in a plan, in isolation, does not by itself evidence a violation, see id.; explained that so long as a map is not proven to violate the constitutional provisions, the mapmakers may draw lines to favor or disfavor an incumbent, id. at 687 ; and ordinarily required “an 55 The Missouri Constitution, Article III, §3, provides “Subject to the requirements of subdivisions (1) and (2) of this subsection, districts shall be composed of contiguous territory as compact as may be. Areas which meet only at the points of adjoining corners are not contiguous. In general, compact districts are those which are square, rectangular, or hexagonal in shape to the extent permitted by natural or political boundaries.” See https://perma.cc/Z5EH-ENSK. 56 The Dissent states that “the [Court] misses an opportunity for this Court to refine a compactness standard that will apply during the current era of high-powered computer analytics and voter microtargeting used in [mapping].” Dissent at 5. The refinement of Article III, §4 is a legislative function in the first instance and then a matter for the voters.

Indeed, the Dissent recognizes as much when it quotes the Supreme Court: “Provisions in state statutes and constitutions can provide standards and guidance for courts to apply.” Dissent at 32, quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019). 66 affirmative showing ... to demonstrate that such districts were intentionally so drawn to produce an unfair political result, that is, to dilute or enhance the voting strength of discrete groups for partisan political advantage or other impermissible purposes.” Id. at 687. The Petitioners’ evidence concerning compactness did not establish that these four districts violated Article III, §4. Testimony Concerning the Three Challenged Districts in Anne Arundel County Petitioners did provide some additional evidence concerning the other three districts challenged on compactness grounds. All were located fully or partially in Anne Arundel County.

One of the Petitioners, Delegate Kipke, testified at the hearing and briefly gave his analysis of the new boundaries of those three districts.57 As noted earlier, Delegate Kipke was a member of the House Rules and Executive Nominations Committee and was present during the joint hearing that the committee held with the Senate committee on the LRAC plan. He did not ask any questions or make any comments during that hearing. Nor did he ask any questions or make any comments during the floor debate prior to adoption of that plan by the House of Delegates. Districts 12 and 21 At the hearing before the Special Magistrate, Delegate Kipke was asked to compare District 12 under the 2012 districting plan with the updated version of that district in the 2022 adopted plan.

He noted that District 12 would now cross from Howard County into 57 Delegate Kipke also testified about the new boundaries of District 31, which was one of the districts challenged in the petition in Miscellaneous No. 25, but is not a subject of the Petitioners’ exceptions. 67 Anne Arundel County58 – that is, it contains one of the 15 county crossings in the adopted plan. He also observed that the district’s senator and the delegate representing the smaller Anne Arundel County portion of that district will likely be Howard County residents, and that they would now have votes as members of the Anne Arundel County delegation. With respect to District 21, Delegate Kipke testified that the version of the district in the adopted plan was similar to its configuration in the 2012 plan and that it crossed from Prince George’s County into Anne Arundel County. He stated that the senator and delegates representing the district were all Democrats and residents of Prince George’s County and that these legislators would have a vote in the Anne Arundel County delegation.

He said that the “practical effect” would be to “dilute” the vote of representatives hailing from Anne Arundel County when the legislators met in the delegation. He did not testify as to any particular partisan effect of the crossing.59 The Petition that initiated Miscellaneous No. 25 had alleged that both of these districts demonstrated political gerrymandering – in the case of District 12, to protect an incumbent member of the House of Delegates (Petition, ¶29) and in the case of District 21, to help “flip” District 33 from Republican to Democratic legislators (Petition, ¶33). 58 Under the prior 2012 districting plan, District 12 crossed from Howard County into Baltimore County. 59 In testimony presented to the General Assembly with respect to the plan developed by the Governor’s commission, which was entered into evidence by stipulation at the hearing before the Special Magistrate, Professor Persily remarked on the difficulty of avoiding county crossings in Anne Arundel County, as that county is “in the center of the state,” where “outlying districts converge to get adequate population to comply with one-person, one-vote.” The plan developed by the Governor’s commission included three districts that crossed into Anne Arundel County from other counties. 68 However, as to both districts, Delegate Kipke’s analysis did not refer to a partisan effect but instead focused on the effect that the new district boundaries might have on the make- up (by residence) of the members of the Anne Arundel County delegation – that is, the “dilution” of the votes of legislators resident in Anne Arundel County in that delegation. County delegations are not created by the State Constitution or statute. Rather, they are creatures of the respective rules of the Senate and House of Delegates and are denominated as “select committees.”60 In the context of legislative redistricting, this Court has alluded to the role of a county delegation as acting essentially as the local legislative body for a county without home rule. 2002 Districting, 370 Md. at 359 .

While the Anne Arundel County delegation no doubt performs important functions, it does not function as the local legislative body. Anne Arundel County is a charter county with home rule.61 In 2004, this Court held that the Anne Arundel County delegation was not subject to the constitutional one-person, one-vote requirement. McMillan v. Love, 379 Md. 551, 570 (2004); see also 80 Opinions of the Attorney General 53 (1995). The evidence with respect to Districts 12 and 21 amounted to a critique of their shapes under the eye test and Mr. Trende’s questionable compactness comparison, and a concern that a county crossing would dilute votes in the Anne Arundel County delegation. 60 See Department of Legislative Services, Maryland Legislator’s Handbook Volume 1 (2018) at 22-23.

The Maryland Legislator’s Handbook is available online at https://dls.maryland.gov/pubs/prod/RecurRpt/Handbook_Volume_1_MD_Legislators_Ha ndbook.pdf . 61 The same is true of the two other counties involved in the county crossings in these districts – Prince George’s County and Howard County. 69 However, the shapes and scores are not by themselves evidence of a violation of Article III, §4; a single county crossing is unremarkable in light of the population numbers indicating the need for county crossings; the “towns” identified in the Petition are not in fact political subdivisions – i.e., municipalities; and the fact that an otherwise compliant plan “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.” 2012 Districting, 436 Md. at 133 , quoting 2002 Districting, 370 Md. at 221-22 . The fact that a redistricting plan changes the makeup of a county delegation does not establish a violation of Article III, §4. The Petitioners did not introduce compelling evidence that Districts 12 and 21 violated the constraints that the Constitution places on the political branches when they draw redistricting maps.62 District 33 Delegate Kipke also testified about District 33, which lies entirely within Anne Arundel County. He said that the mapmakers changed District 33 in such a way as to give it “jagged” boundaries, that the district is no longer a “generic” central Anne Arundel 62 During her testimony before the General Assembly committees on January 18, 2022, Ms. Davis, the DLS staffer, stated that population from the Odenton area, previously in District 21, had been moved to District 33, which had been split into three single-member districts, one for “mostly Odenton,” one for the Broadneck area, and one for the rural or central portion of Anne Arundel County.

She stated that District 33 had added population from Odenton to reduce the population in District 32. Although Ms. Davis solicited questions from the legislators about the map, the committee members did not ask her to elaborate on District 21 or any other district. Nor were any questions about these districts posed to the members of the LRAC who had been invited to the hearing to answer questions. 70 County district, and that it now has been divided into three single-member delegate subdistricts. He did not otherwise analyze the effect of the change in its boundaries.

Delegate Rachel Muñoz, an incumbent Republican delegate from that district, also testified at the hearing. She had been appointed to fill a vacant House seat in District 33 in November 2021. She testified that the new boundaries of District 33 in the adopted plan no longer included her in that district and now placed her neighborhood in adjacent District 31. Petitioners introduced a map showing the line and argued that the line was “surgical[ly]” drawn that way to remove a sitting Republican delegate from District 33.

Petitioners did not except to the Special Magistrate’s recommendation concerning District 31. With regard to Petitioners’ allegation that District 33 was designed to dilute the votes of Republicans, an exhibit that the Petitioners introduced into evidence after the State’s case, without explanation by any witness, purports to show, by precinct, and without totals, the movement of Republican and Democratic voters in and out of the District. Also, the parties stipulated to voter registration data by district before and after the LRAC plan. Petitioners represent that these exhibits show that the percentage of registered Democrats in the District has increased by 3%, from approximately 38% to approximately 41%, and registered Republicans have declined, from 38% to 35%.

An exhibit prepared by Mr. Trende, but that he was not asked to analyze, shows that the district, as configured now, is comprised of voters who voted heavily for Governor Hogan, a Republican, in 2018. The evidence of intended dilution of Republicans’ opportunity to elect candidates of their own party therefore is not compelling. In any event, “an intentional effort to district so as to 71 create a balance between two primary partisan political parties does not violate” the federal constitution.63 1982 Districting, 299 Md. at 673-74 . The assertion that the District 33 line was “surgically” drawn in order to remove Delegate Muñoz from the district seemingly poses a closer question: the map itself permits an inference that the mapmakers bumped the line out to remove only a small area from the district.

The record, however, does not compel that inference.64 In any event, the issue is once again resolved by the fact that Maryland’s Constitution assigns the drawing of maps to the political branches and not to this Court. Accordingly, the fact that a plan “may have been formulated in an attempt to ... help or injure incumbents or political parties, or to achieve other social or political objectives, will not affect its validity.” 2002 Districting, 370 Md. at 322 ; see also 2012 Districting, 436 Md. at 134 (stating that, within the constraints of State and federal law, “[t]he political branches may pursue a wide variety of 63 With regard to District 33, the Dissent states that “[i]t is time for this Court to adopt a standard to apply for extreme partisan gerrymandering ….” Dissent at 55. The Petitioners did not introduce any evidence to suggest that a 3% swing, in a district that now comprises a large number of voters who voted Republican in the last gubernatorial election, is “extreme.” Even so, it is not the Court’s role to legislate districting standards. See footnote 56. 64 The map also permits an inference that the line that allegedly targeted the area that includes Delegate Muñoz’s neighborhood gave due regard to a natural boundary.

The jagged line follows a river immediately below that area and follows Ritchie Highway to its immediate east. More to the point is that the adopted plan puts the Delegate’s residence in District 31, which contains a higher percentage of registered Republicans than District 33. Given the conflicting inferences, and Ms. Davis’ testimony that population from Odenton was added to District 33 to reduce the population in District 32, the evidence as to District 33 is not compelling. 72 objectives, including ... aiding political allies or injuring political rivals”). The facts to which Delegate Muñoz testified thus did not state a claim of a constitutional violation.

In sum, the Petitioners did not present compelling evidence that Districts 12, 21, or 33 violated Article III, §4. 2. Contiguity and Due Regard to Natural Boundaries The Petitioners faulted just one district with respect to the criteria of contiguity and due regard for natural boundaries – District 27. Under the adopted plan, District 27 encompasses parts of Calvert, Prince George’s, and Charles counties and is divided into three single-member subdistricts. Subdistrict 27A is split between Charles and Prince George’s counties; subdistrict 27B is split between Calvert and Prince George’s counties; and subdistrict 27C lies completely in Calvert County.

Under the prior 2012 districting plan, District 27 had encompassed parts of the same three counties and had also been divided into three subdistricts, although the boundaries had shifted under the adopted plan due to population changes. As noted above,65 the populations of all three counties had increased, but the increases in Charles and Prince George’s counties were significantly greater, both in percentage terms and absolute numbers, than the increase in Calvert County.66 65 See Part II.B of this opinion. 66 The parties stipulated to a “malapportionment report” that showed, for each existing district and subdistrict, its deviation under the 2020 census figures from the “ideal” population for the particular type of district. As of the 2020 census, the existing subdistrict 27A deviated from the ideal for a single-member subdistrict by 15.48%; subdistrict 27B by 3.98%; and subdistrict 27C by 4%. 73 At the joint committee hearing on the LRAC plan in the General Assembly, Ms. Davis of DLS testified that District 27 “continues to be in three counties ... and is right where the three counties converge.” She stated that subdistrict 27A “picks up more of Charles County to accommodate for the growth in that county.” She further testified that the three single-member subdistricts were intended to “make sure that each county has the possibility to elect their own representation.” She stated that the boundaries of District 29, which lies along the Patuxent River, and of District 28, a small portion of which reaches that river, were “changed minimally for population balancing purposes.” At the hearing before the Special Magistrate, Delegate Mark Fisher, the lead Petitioner in Miscellaneous No. 25 and the delegate who represents subdistrict 27C, testified as to his concerns about District 27. He testified that, while his own subdistrict is located entirely in Calvert County, the portions of subdistrict 27B in Prince George’s County and Calvert County are divided by the Patuxent River.

He further testified that there is no bridge across that river within that subdistrict so that a person driving from one side of the subdistrict to the other would have to leave the subdistrict to get to the other side. He said that, currently, the senator representing District 27 is from Prince George’s County. He opined that, under the adopted plan, only one delegate is likely to be from Calvert County, which has also been the case under the prior 2012 districting plan. He stated his view that subdistrict 27B was drawn without regard to natural boundaries and that Calvert County, as a commissioner county dependent on its State delegation to introduce local legislation in the General Assembly, ought to have two subdistricts of its 74 own.67 Delegate Fisher neither identified the parties to which the current legislators from District 27 belonged nor provided any analysis that would suggest partisan gerrymandering of the district.

In recommending that the Court deny the Petition in Miscellaneous No. 25, the Special Magistrate found that the State had explained the need to cross county lines in order to account for population shifts. He did not specifically address whether the absence of a bridge over the Patuxent River within subdistrict 27B violated either the contiguity or the due regard criteria of Article III, §4. The Petitioners excepted to the Special Magistrate’s recommendation on the ground that the district violated the contiguity and due regard criteria of Article III, §4,68 because it is divided among three counties and because there is no bridge within subdistrict 27B providing direct access between the two portions of that subdistrict. In our view, the Petitioners did not present compelling evidence that the contiguity and due regard criteria were violated in the re-design of District 27 generally or of subdistrict 27B in particular.

As for the county crossings, which were also part of the prior 67 Delegate Fisher stated that the population of Calvert County is over 90,000. As noted earlier, that population is less than what would be needed to create a legislative district, but is slightly more than the population of an “ideal” two-member district. See Part II.B of this opinion. 68 The Petition had originally alleged that District 27 also failed to give due regard to the boundaries of political subdivisions because it divided six “towns” as well as encompassing parts of three counties. However, the “towns” identified in the Petition are not actual political subdivisions – i.e., municipalities – and Petitioners did not press that contention before us.

The Petition did not allege a lack of compactness as to District 27; in fact, Mr. Trende conceded that it is “reasonably compact.” 75 approved plan and one of which also appeared in the plan of the Governor’s commission, the Court has indicated that “[i]n the absence of evidence of invidious, impermissible discrimination, the choice of where [a county] crossing would be located and what form that crossing would take was a political one, well within the authority of the political branches to make.” 2012 Districting, 436 Md. at 159 . As for the contiguity requirement, the Court has previously noted that the drafters of the constitutional provision intended that no district cross the Chesapeake Bay, but that, otherwise, “separation of two areas by water does not render the areas non-contiguous.” 2002 Districting, 370 Md. at 344 . The bisection of subdistrict 27B by the Patuxent River may pose a closer question on whether due regard was given to natural boundaries. However, it is apparent that the prior 2012 plan similarly split the subdistrict and that one driving from one side of the subdistrict to the other would have used the same bridges (then in a different subdistrict of District 27) as now.

The only difference is that population shifts and the need to work in from the outside geographically in designing districts had shifted district boundaries slightly so that the same bridges were in a different district rather than in a different subdistrict. The configuration of districts in Southern Maryland was driven by the above average increases in population, both in absolute numbers and percentage- wise, in both St. Mary’s County (+8.2%) and Charles County (+13.7%). Both counties occupy the southern edge of the State, and the mapmakers worked from the edges inwards. That southernmost district had to borrow population from Calvert, which in turn had to borrow population from neighboring counties. 76 In sum, the record does not contain compelling evidence that District 27 generally, or subdistrict 27B in particular, violates the contiguity or due regard provisions of Article III, §4. 3.

Legislative Privilege The Petitioners excepted to the Special Magistrate’s ruling sustaining the State’s assertion of legislative privilege in response to certain discovery requests. The discovery requests concerned the identity of the persons responsible for the design of the challenged districts, who instructed those persons on the criteria to be used in doing so, any specific instructions given concerning the challenged districts, and any criteria used with the computer program that was used in the drawing of the districts.69 Legislative Privilege under Maryland Law The legislative privilege applicable to State legislators and their staffs in Maryland derives from the Maryland Constitution as well as from the common law. Article 10 of the Maryland Declaration of Rights provides “[t]hat freedom of speech and debate, or proceedings in the Legislature, ought not to be impeached in any Court of Judicature.” A related provision of the Maryland Constitution provides legislators with immunity from civil actions or criminal prosecution for actions or speech related to legislative activity. Maryland Constitution, Article III, §18.70 Another underpinning of legislative privilege is 69 With respect to the computer program itself, the State did not assert legislative privilege and identified for Petitioners the computer program that was used.

Article III, §18 provides that “[n]o Senator or Delegate shall be liable in any civil 70 action, or criminal prosecution, whatever, for words spoken in debate.” 77 Article 8 of the Declaration of Rights, which provides for the separation of powers of the Legislative, Executive, and Judicial branches of State government.71 See Murphy v. Liberty Mutual Insurance Co., 478 Md. 333, 370-82 (2022); see also Hamilton v. Verdow, 287 Md. 544 , 553-54 n.3, 556 (1980). With respect to the common law, this Court has recognized that the doctrine of legislative immunity, like the doctrine of judicial immunity, is also historically rooted in the English common law, which was adopted for Maryland in the Maryland Declaration of Rights. See Maryland Declaration of Rights, Article 5; Gill v. Ripley, 352 Md. 754, 763 (1999) (“An absolute immunity for legislators, with respect to conduct and statements made in the course of legislative proceedings, is as venerable as judicial immunity, having been traced back to 1399.”). As noted by this Court in a civil fraud case involving a Governor’s exercise of the legislative function of vetoing a bill, courts have deemed the common law doctrine of legislative immunity to be broader than that conferred constitutionally and have applied it where a particular constitutional provision did not apply to conduct that was legislative in nature.

Mandel v. O’Hara, 320 Md. 103, 112 (1990). There, the question was not whether Maryland law recognizes legislative immunity under the common law but rather whether the exercise of a veto fell within it. After explaining the policy reasons behind the doctrine as applied to legislators acting within their legislative function, the Court stated: “There is no policy reason why 71 Article 8 provides “[t]hat the Legislative, Executive and Judicial powers of Government ought to be forever separate and distinct from each other; and no person exercising the functions of one of said Departments shall assume or discharge the duties of any other.” 78 legislators should enjoy absolute immunity for their legislative acts but that a Governor should have only a qualified immunity for his or her legislative function of vetoing or approving legislation.” Id. at 134 . The Court of Special Appeals has had occasion to examine the constitutional privilege that applies to State lawmakers on four occasions.

In two instances, the intermediate appellate court determined the breadth of an analogous common law legislative privilege possessed by members of local legislative bodies and the extent to which it could be asserted in response to a discovery request. See Montgomery County v. Schooley, 97 Md. App. 107 (1993) (common law legislative privilege applicable to discovery requests directed to member of county council); Floyd v. Baltimore City Council, 241 Md. App. 199 (2019) (common law legislative privilege applicable to discovery requests directed to members of City Council).72 Although neither decision is binding on this Court, the two decisions provide background on the origin of the doctrine of legislative privilege and are informative on its application. Schooley was a challenge to the adoption of a redistricting plan for the Montgomery County Council pursuant to the County charter. The challengers sought to take the deposition of a Council member concerning the adoption of amendments to the bill that enacted the plan.

The challengers stated that they were not seeking information about the 72 The other two cases concerned the aspect of legislative privilege that confers immunity from prosecution. State v. Holton, 193 Md. App. 322, 338-62 (2010) (common law legislative privilege of member of City Council provided immunity from criminal prosecution), aff’d on other grounds, 420 Md. 530 (2011); Blondes v. State, 16 Md. App. 165 (1972) (constitutional provision and related statute provided for limited exception from legislative immunity), overruled on other grounds, 273 Md. 435 (1975). 79 member’s “legislative intent,” but rather information “about the procedural aspects of the enactment.” 97 Md. App. at 111 . The County sought a protective order against the deposition, asserting legislative privilege; the council member apparently took no position on the request for a protective order. The challengers insisted that the deposition should go forward with the member asserting the privilege on a question-by-question basis.

The circuit court denied the motion for a protective order, and the County appealed. In a scholarly opinion by then-Chief Judge Wilner, the Court of Special Appeals vacated the circuit court’s denial of the protective order and remanded for that court to explore whether there was any area of inquiry that would not be subject to the privilege. In sketching the scope of the common law legislative privilege applicable to local legislators, the intermediate appellate court traced the history of the legislative privileges applicable to members of Congress and to State legislators to the common origin of those privileges in the English Bill of Rights. The court noted that legislative privilege has “long been regarded as an important protection of the independence and integrity of the legislature and, in this country, as also reinforcing the core doctrine of separation of powers.” Schooley, 97 Md. App. at 114 (citations and internal quotation marks omitted).

The legislative privilege is to be read broadly to serve that purpose; it applies “not only [to] words spoken in debate but anything generally done in a session of the [legislature] by one of its members in relation to the business before it.” Id. (citations and internal quotation marks omitted). The Court of Special Appeals further noted that one aspect of legislative privilege is a testimonial privilege that protects a legislator from questioning other than in the 80 legislative body itself. 97 Md. App. at 116 (citing Gravel v. United States, 408 U.S. 606 (1972)). The intermediate appellate court summarized the testimonial privilege: … a legislator, even if not a party to the action and thus not subject to any direct consequence of it, cannot be compelled to explain, other than before the legislative body of which he is a member, either his legislative conduct or the “events that occurred” in a legislative session.

Id. at 117. In Floyd, an opponent of a new zoning map adopted by the Baltimore City Council alleged irregularities in its adoption and filed a “Petition for Enforcement of the Open Meetings Act.” 241 Md. App. at 206 . After denial of the City’s motion to dismiss, the plaintiff sought the testimony of two Council members and a staff member. The City asserted legislative privilege and moved to quash the subpoenas to the council members and to limit the staff member’s testimony to compliance with the Act.

The circuit court granted the motion and, following trial of the case, ruled in favor of the City because the plaintiff had failed to produce sufficient evidence of a willful violation of the Act. Id. On appeal, the plaintiff alluded to the requirement that she had to prove a “willful” violation of the Act and argued that, because the council members were “uniquely positioned and qualified to elucidate the proceedings” in question, the assertion of legislative privilege severely prejudiced her in pursuing her claim. The Court of Special Appeals reprised its analysis and holding in Schooley and reached the same conclusion, affirming the circuit court’s discovery ruling.

It stated that “even if we perceived a tension between the doctrine of legislative privilege and the requirements of the [Open Meetings] 81 Act, a judicial carve-out of an exception to the application of that doctrine in such cases would be inappropriate” and was a matter for the General Assembly. 241 Md. App. at 214 . Consistent with these principles, confidentiality is a core feature of the drafting process before a bill is filed. See Department of Legislative Services, Maryland Legislator’s Handbook Volume 1 (2018) (“DLS Handbook”) at p.71.73 There is no question that the privilege applies to the information sought by Petitioners, as they seek non-public information concerning the drafting of legislation. The question is whether that confidentiality – the legislative privilege – should be set aside in this instance.

The Redistricting Process and Privileges As explained earlier, under the Maryland Constitution, each of the three branches of State government can be involved in the drafting of a redistricting plan. The Executive Branch – i.e., the Governor – is commanded by the Constitution to draft a plan; the Legislature has discretion to draft its own plan; and the Judicial Branch – this Court – may ultimately (as has happened twice) draft a plan as a back stop when a plan drafted by one of the other branches falls short of the constitutional requirements. The Constitution requires some transparency in the redistricting process, as Article III, §5 directs the Governor to hold public hearings on the Governor’s plan, which might otherwise be drafted completely in private.74 Transparency is already built into the 73 See footnote 60 above. 74 Indeed, the failure of the Governor to hold public hearings led this Court to invalidate the first redistricting plan in the modern history of Maryland state redistricting. See 1973 Districting. 82 legislative process, which involves public committee hearings and votes on proposed legislation and public proceedings on the floor of each house to debate and vote on proposed legislation.

See Maryland Constitution, Article III, §21 (doors of Legislature to be open); GP §§3-101(f), (j), 3-102 (State Open Meetings Act applicable to legislative, as well as “quasi-legislative,” functions of a public body); see also Avara v. Baltimore News American, 292 Md. 543, 553 (1982) (State Open Meetings Act applies to legislative conference committee). The deliberations of each branch are also protected to some extent by an evidentiary privilege – the Governor by executive privilege and, as indicated in the Mandel decision described above, also by legislative privilege; and this Court by the judicial privilege that protects its deliberations.75 As noted above, the legislative privilege applicable to members of the General Assembly and their staffs similarly protects them from questioning about the performance of their legislative duties, other than in the legislative body itself. See DLS Handbook at 71. Our review of the past redistricting decisions of this Court and the reports of the special masters appointed in those cases reveals no instance in which matters covered by If the Governor creates a committee by executive order, it will be subject to the State Open Meetings Act.

Maryland Code, General Provisions Article (“GP”), §3-101 et seq. 75 The basis and boundaries of judicial privilege are a bit amorphous, perhaps because of the infrequency with which it needs to be asserted. See, e.g., In the Matter of Certain Complaints under Investigation by an Investigating Committee of the Judicial Council of the Eleventh Circuit, 783 F.2d 1488, 1518-20 (11th Cir. 1986); In re United States, 463 F.3d 1328 , 1332 n.4 (Fed. Cir. 2006); see generally Charles W. Sorenson, Jr., Are Law Clerks Fair Game? Invading Judicial Confidentiality, 43 Val. U. L. Rev. 1 , 47- 50 (2008). 83 the constitutional legislative privilege, executive privilege, or the common law judicial privilege were part of the decision in those cases.76 In each instance, the Court and the special master analyzed the plan in question in the same manner that this Court typically analyzes other pieces of legislation – looking to the actual terms of the plan and at the effect of the plan and any alternative plans offered by challengers, without inquiry into the specific motives of any individual drafter.

See, e.g., 2002 Districting, 370 Md. at 339-43, 347 (describing special master finding merit in one challenger’s objection to the adopted plan and rejecting an alternative plan proposed by another challenger on the basis that the alternative plan “advances partisan interests,” but not basing that finding on testimony as to individual motives). So, too, did the Special Magistrate in this case. As with other legislation, the issue is not whether a sponsoring legislator’s personal motives were noble or nefarious, but what does the legislation actually provide? The sponsoring legislator’s motives or communications with staff are not probed – or even considered relevant; after all, it is the body, not the individual legislator, that ultimately adopts legislation.

See Baltimore Retail Package Stores Ass’n v. Board of License Commissioners, 171 Md. 426, 430 (1937); 2A Sutherland, Statutes and Statutory Construction (7th ed.), §§48.12, 48.17. In the specific context of reviewing legislative resolutions related to redistricting, this Court has functioned no differently.77 76 None of those decisions mentions any discovery requests for privileged material or assertions of legislative privilege, and the analyses of the plans in question do not refer to anything that would have been privileged. 77 In his dissent, Judge Gould cites a case concerning the invocation of the Fifth Amendment privilege against self-incrimination in a civil context and, by analogy, 84 Thus, this Court typically looks first to the plain language of legislation and frequently to its legislative history – which does not involve breaching legislative privilege. Here the joint resolution describes the plan, which is graphically represented by maps (as to the accuracy of which there appears to be no dispute). Although there is no requirement in the State Constitution that the Legislature hold hearings before introducing a resolution proposes that the Court draw an adverse inference from the State’s assertion of legislative privilege.

For example, he would infer, from the State’s claim of legislative privilege in response to a request for information about instructions given to mapmakers, that any such instructions violated the State and federal constitutions. Dissent (Gould, J.) at 5. However, there are significant distinctions between the two contexts that render the analogy inapt. One difference between the Fifth Amendment privilege and the legislative privilege is that the Fifth Amendment privilege embodies a notion of potential incrimination and thus goes to the content of the information requested.

By contrast, the legislative privilege does not turn on whether the information is potentially incriminating or otherwise adverse to the one who claims it. Thus, it is reasonable to infer – at least in the context of a civil case – that the information protected from disclosure when a witness invokes the Fifth Amendment privilege is adverse to that witness. The same cannot be said about the invocation of legislative privilege. It is not inherent in the nature of the privilege that the information it protects is necessarily adverse to anyone.

Another difference is that, unlike the Fifth Amendment privilege, the purpose of the legislative privilege is not to protect an individual legislator, but rather to advance a public interest. It is rooted not in individual rights, but in separation-of-powers principles applicable to the branches of State government. See Hamilton v. Verdow, 287 Md. 544, 554, 556 (1980) (regarding executive privilege, noting that “[a]s it has roots in the constitutional doctrine of separation of powers, a similar privilege extends to the judicial and legislative branches as well.”). For that reason, too, the State’s assertion of the privilege, by itself, does not imply that members or staff of one of the other branches of government, whether executive or legislative, acted illegally in some way.

That is particularly so in this case, where the Petitioners, equipped with data on the partisan make-up of the various districts and with an expert witness who had opined on partisan gerrymandering claims in other states, nonetheless introduced no evidence or analysis based on that data that the LRAC plan would dilute the votes of any discrete group of voters in the challenged districts. Instead, their evidence focused on the physical configuration of a few districts. 85 embodying a plan, the LRAC held 16 open meetings following release of the census data. Despite the abbreviated timeline of this cycle, the legislative committees to which the resolutions were referred held two public hearings at which the members had the opportunity to, and were told that they should, ask questions of the chair of LRAC and, at one hearing, the director of LRAC’s staff. Two Petitioners in this case were members of the House committee to which the joint resolutions were referred and they attended both hearings; one Petitioner asked questions.

There were floor debates in both houses, during which members could – and did at some length – ask questions of the member presenting the resolution that ultimately passed. Some of those questions were similar to the questions posed by Petitioners in their discovery request. Therefore, if the preparation of the LRAC districting maps falls within the legislative conduct protected by the Speech and Debate Clause, inquiries into that process belong in the Legislative Branch and not in the Judicial Branch. That is particularly so when the parties who seek to inquire into legislative motives are themselves members of the legislative branch; it is not for this Court to assess the adequacy of the opportunity of legislators to seek information during the legislative process, whether in the committee hearings or in floor debate.

Put another way, two of the Petitioners in Miscellaneous No. 25 had the opportunity to question the LRAC chair, a staff member, and the sponsor of the legislation in the joint committee hearing on the bill. Every delegate had the opportunity to ask questions during the floor debate in the House. One member did engage in an 86 extended discussion posing questions to the House majority leader, an LRAC member, about the LRAC’s process, staff, and meetings.78 The LRAC map was drafted by DLS – an agency of the General Assembly – and was introduced, debated on, and adopted as legislation. The drafting of that legislation fell within the legislative conduct protected by the Speech and Debate Clause.

Therefore, under State law, inquiries into DLS’s drafting process properly belonged in the General Assembly. Legislative Privilege under Federal Common Law Petitioners rely primarily on a federal district court opinion on a discovery dispute in a case concerning a federal constitutional challenge to Congressional redistricting. Benisek v. Lamone, 241 F. Supp. 3d 566 (D. Md. 2017).79 The plaintiffs in Benisek had challenged the Congressional districts that the Governor had proposed, and the General Assembly had approved, after the 2010 census. As described by the federal district court, their complaint alleged “in essence that the Plan’s redrawing of the Sixth District’s boundaries constituted unlawful retaliation in violation of their rights under the First Amendment and Article I [of the United States Constitution].” 241 F.Supp.3d at 570 .

To succeed on their claims, the federal district court concluded, the plaintiffs would have to 78 The Dissent surmises that the Petitioners may have concluded that asking questions in committee would be pointless because they would “not change any votes.” Dissent at 26. Whether or not that is so, the Petitioners were uniquely positioned to request the information and chose not to do so. 79 The Supreme Court later vacated the district court’s opinion on the merits. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019). 87 prove, among other things, that the map drawers had the “specific intent to impose a burden on [them]” because of how they voted or their political affiliation. Id.

(internal quotation and citation omitted). Accordingly, the plaintiffs sought to subpoena and depose members of the Governor’s redistricting advisory committee, including several sitting state legislators. The proposed deponents filed motions to quash on the grounds that legislative privilege shielded the information that the plaintiffs were seeking; the plaintiffs in turn filed motions to compel. Id. at 570-72.

In addressing those motions, the federal district court held that the members of the advisory committee, including the non-legislators, enjoyed a qualified legislative privilege under federal common law that could be denied “where important federal interests are at stake.” 241 F. Supp. 3d at 574 . Applying a five-factor test80 to balance the competing interests of the litigants, the court concluded that federal legislative privilege did not protect conversations and other communications between and among the legislators and some legislator-staff communications. Id. at 575-77 . The Special Magistrate stated that the Benisek discovery ruling was inapposite to this case because (1) that case was an action in federal court asserting that the Congressional redistricting process violated federal law and (2) the Supreme Court had 80 The five-factor standard, which was derived from the deliberative process privilege for executive branch actors, requires a court to weigh: (1) the relevance of the evidence sought; (2) the availability of other evidence; (3) the seriousness of the litigation; (4) the role of the State, as opposed to individual legislators, in the litigation; and (5) the extent to which the discovery would impede legislative action.

Benisek, 241 F. Supp. 3d at 575 . 88 ultimately vacated and remanded the case with instructions to the lower court to dismiss the action. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019). We agree that the Benisek district court ruling is inapposite to this case, given the context in which it was made and in light of the Supreme Court’s later holdings in that case. The issue arose in that case when, in 2017, six years after the adoption of the Congressional map, the Benisek plaintiffs asked the federal district court to issue a preliminary injunction against the election official defendants to enjoin them from holding the 2018 Congressional election under that map.

See Benisek v. Lamone, 138 S. Ct. 1942, 1943 (2018). The federal district court denied that motion and stayed further proceedings pending the Supreme Court’s disposition of another districting case. Id. In seeking to establish that they had exercised reasonable diligence, as required of a party seeking a preliminary injunction, the plaintiffs attributed their delay to the State defendants’ opposition to their discovery requests.

The Supreme Court found that the plaintiffs’ delay was instead attributable to the fact that they had waited until 2016 to allege their retaliation claim. Id. at 1944 . The Court stated: “Plaintiffs’ newly presented claims – unlike the gerrymandering claim presented in the 2013 complaint – required discovery into the motives of the officials who produced the [map].” Id. (emphasis added).

It thus appears that a gerrymandering claim, by itself, does not defeat the legislative privilege under the federal common law and entitle a plaintiff to discovery into the motives of those who produced the map. Later, in Rucho, the Supreme Court vacated the lower court’s decision that the Benisek plaintiffs had proven their case on the merits. In doing so, the Court 89 rejected the use of specific intent as an element of a constitutional challenge to a district. Rucho, 139 S. Ct. at 2504 .

Thus, it is at best unclear whether the holding concerning the federal common law privilege applicable to State lawmakers in Benisek survives the vacatur of that decision by the Supreme Court. It may well be that a federal court would apply that five-factor test with respect to privileges asserted by any of the State actors involved in redistricting when a plaintiff has alleged a claim, such as invidious racial or ethnic discrimination, that implicates the mapmakers’ specific intent. But that is distinct from the question that was before the Special Magistrate and is now before this Court. Petitioners did not allege such claims, and the Benisek discovery ruling does not apply here.

We conclude that the Special Magistrate properly sustained the State’s assertion of legislative privilege in response to the Petitioners’ discovery requests. G. A Word on the Dissenting Opinions We have already addressed, in previous sections of this opinion, the two issues discussed in Judge Gould’s dissenting opinion81 and many of the points made by Chief Judge Getty’s dissenting opinion.82 Chief Judge Getty’s dissenting opinion almost entirely relates to the districts challenged in Miscellaneous No. 25 and briefly discusses the challenge made in Miscellaneous No. 27; he apparently has no quarrel with our disposition of the petitions filed in Miscellaneous Nos. 24 and 26. In this section, we address certain 81 See footnotes 31 and 77 above. 82 See footnotes 25, 34, 51, 56, 63, and 78 above; see also footnote 98 below. 90 issues raised by Chief Judge Getty’s dissenting opinion that are salient to Miscellaneous No. 25, to the extent they have not been addressed earlier in this opinion. 1. The Alleged Discrepancy Between the Parties’ Stipulation and the Planning Data The Dissent contends that Joint Exhibit F, part of the Stipulation of Facts that the parties presented to the Special Magistrate, is inaccurate.

The Dissent asserts that the stipulation does not correlate with the Department of Planning data categorizing adjusted population figures from the 2020 Census. There are at least three reasons why that assertion lacks merit. The Parties Stipulated to Joint Exhibit F Joint Exhibit F was provided to the Special Magistrate as part of a stipulation entered into by the parties. It contains extensive data concerning adjusted population figures for the districts and subdistricts in the adopted plan broken down by certain racial and ethnic groups, voting age population, party registration, and other criteria.

It was introduced as background information that was not in dispute and was not the subject of any extended discussion during the hearing before the Special Magistrate. The Dissent suggests that the Special Magistrate, instead of focusing on the material facts that the parties contested, should have spent the limited time available to him questioning and recomputing the stipulated evidence. No Allegation of “Discrepancies” in the Data was Made by Anyone Until Now Not only did no party to this case question the accuracy of the data in Joint Exhibit F, no member of the Court has previously raised any issue about that data. No question 91 was posed to the parties either before, at, or even after oral argument; the issue appears for the first time in the Dissent.

In essence, the Dissent would have the Court base a decision on the Dissent’s belated (and, as we shall see, flawed) assertion of “discrepancies” in data to which these ably-represented parties had stipulated without giving them the opportunity to dispel its concerns. It faults the parties and Special Magistrate for failing to answer a question that was never asked. The Dissent’s Charts and Computations are Inaccurate The Dissent includes 14 charts related to the eight districts that are challenged in Miscellaneous No. 25 and asserts that the numbers in those charts, and computations that the Dissent makes based on those numbers, demonstrate that there are “discrepancies” between Joint Exhibit F and the adjusted population data published by the Department of Planning. But the real discrepancy appears to be in the labels that the Dissent uses in its charts versus the numbers actually included in the charts under those labels and in the computations the Dissent makes following the charts.

The Dissent labels the columns of each chart as “Percentage of Total Adjusted Population” for various racial groups, ending with a catch-all column for “Percentage of Total Adjusted Population: Other.” Each chart includes a row labeled “Department of Planning” that the Dissent represents to be percentages provided in the Department of Planning’s adjusted population data for these various groups, and another row labeled “Exhibit F” under the same columns. The implication is that each column presents an apples-to-apples comparison of the Department of Planning data with that in Joint Exhibit F. However, a closer examination of the actual 92 Department of Planning data reveals that the Dissent’s charts and computations mischaracterize that data and that the Dissent’s charts and computations do not provide an apples-to-apples comparison. As each of the Dissent’s charts specifies certain racial categories of the adjusted population and a catch-all “other” category, one would assume that these percentages in the rows attributed to the Department of Planning data should add up to 100% of the total adjusted population. But, as it turns out, none of them do.

For example, on p. 96 of the Dissent, there is a chart that, for subdistrict 12A, purports to list the breakdown of the adjusted population of that subdistrict in the Department of Planning data under categories labeled “White,” “Black,” “Hispanic Origin,” “Asian,” and “Other.” If one adds the percentages for each of those categories in the row labeled “Department of Planning,” one obtains a total of 94.17% (46.75% White + 23.84% Black + 8.85% Hispanic Origin + 14.05% Asian + 0.68% Other = 94.17%). The Dissent’s summary of the Department of Planning data for subdistrict 12A thus leaves out more than 5% of the subdistrict’s adjusted population. Similarly, directly following the chart for subdistrict 12A, the Dissent lists adjusted population numbers for that district for the same racial categories. Those figures total 81,435 people (40,425 White + 20,615 Black + 7656 Hispanic + 12,147 Asian + 592 Other = 81,435).

However, the actual Department of Planning data indicate that the adjusted population for that subdistrict is 86,473.83 The numbers presented by the Dissent 83 See Maryland Department of Planning, Maryland 2022 Legislative Districts with 2020 Total Adjusted Population, available at https://perma.cc/7B95-4Q7E. 93 undercount the subdistrict’s adjusted population, as reported by the Department of Planning, by more than 5,000 people. A similar pattern holds true for all 14 sets of charts and computations in the Dissent.84 Thus, the Dissent’s comparisons in its charts, and the computations that appear below each chart, all involve a consistent undercount by the Dissent in the figures it attributes to the Department of Planning compared to the Department of Planning’s actual data. 84 The following summarizes the undercount in the Dissent’s charts and computations, by percentages and numbers of people, compared to the actual Department of Planning (“MDP”) data: Undercounts in Dissent’s Charts and Computations District Percent of Adjusted pop Undercount of adjusted pop in Dissent charts in Dissent computations compared to MDP data compared to MDP data Subdistrict 12A 94.17% -5,038 Subdistrict 12B 93.86% -2,787 District 21 96.36% -5,664 District 22 96.69% -4,523 District 23 95.46% -8,989 District 24 96.79% -4,362 Subdistrict 27A 94.29% -2,508 Subdistrict 27B 94.27% -2,599 Subdistrict 27C 93.72% -2,859 Subdistrict 33A 93.06% -2,924 Subdistrict 33B 94.33% -2,580 Subdistrict 33C 94.54% -2,425 Subdistrict 47A 97.21% -2,540 Subdistrict 47B 98.37% -742 See Dissent at 96-106 and compare with Maryland Department of Planning, Maryland 2022 Legislative Districts with 2020 Total Adjusted Population, available at https://perma.cc/7B95-4Q7E. 94 Where are the people missing from the Dissent’s summaries of the Department of Planning data? They actually do appear in the data itself; the Dissent has simply overlooked them. When one takes a closer look at the Department of Planning’s data, it becomes evident why the Dissent’s summaries of the Department’s data do not add up to 100% and thus undercount the adjusted population for various racial and ethnic groups, as well as the total adjusted population.

The Department’s spreadsheets have separate columns for people who identify themselves as belonging to one racial group (“One Race”) and for people who identify themselves as belonging to more than one racial group (“Two or More Races”). People in the latter category – i.e., those who identify with more than one racial category – were excluded from the Dissent’s summaries of the Department’s adjusted population data.85 For example, the percentages that the Dissent has included under the label “Percentage of Total Adjusted Population: Black” in its charts is actually the Department of Planning’s number for “Percent of Total Adjusted Population – Black or African American Alone” (emphasis added) – i.e., those who identify themselves as being only Black or African American. The Dissent makes the same mistake in the figures that it represents to be the Department of Planning’s figures for the “White,” “Asian,” and “Other” categories in its charts and computations. The Dissent’s charts and computations 85 Also excluded from the Dissent’s charts are the adjusted population data for two specific racial groups that appear in the Department of Planning data – (1) “American Indian and Alaska Native Alone” and (2) “Native Hawaiian and Other Pacific Islanders Alone.” Although the Department of Planning numbers for both of these categories are generally small, the Dissent does not include them in its column labeled “Other” – or anywhere else in its charts and computations. 95 take no account of people who identify as belonging to more than one racial group, even though the Department of Planning – like the Census – actually includes figures for those individuals in its adjusted population data.86 The Dissent asserts that the “discrepancies” that it perceives suggest that the adopted plan violates the prohibition against racial and ethnic discrimination.

Dissent at 90, 106. We are willing to accept that the Dissent’s undercounts of minority population numbers in the rows it labels “Department of Planning” in its charts are attributable to an oversight. How those undercounts by the Dissent would establish a violation of federal districting 86 The numbers in the rows in the Dissent’s charts labeled “Exhibit F” were apparently derived from the spreadsheets stipulated to by the parties as Joint Exhibit F. If one adds the percentages in the various categories in those rows, one finds that they total slightly more than 100% in each instance. That may be due to the fact that a person who identified with more than one racial group is included Joint Exhibit F in each group the person identified with.

The Dissent notes that the figures under the column labeled “Hispanic Origin” in its charts are identical in each instance for its rows labeled “Exhibit F” and “Department of Planning.” The Dissent is seemingly perplexed that these figures do not exhibit the same “discrepancy” as the other racial categories. Dissent at 94. It seems likely that figures for “Hispanic Origin” are unaffected by the “More than One Race” category because the question on the census questionnaire concerning Hispanic Origin is a completely separate from the question on that questionnaire about how a person identifies by race – where “more than one race” is an option. See United States Census Bureau, Decennial Census of Population and Housing Questionnaires and Instructions, available at https://perma.cc/N9AW-RUS3.

In any event, while these seem likely reasons for the differences in the figures in the Dissent’s charts that it perceives as “discrepancies,” we do not have the benefit of what may be a simple explanation as those who seem to doubt the stipulated figures never asked the question when the parties were before us – or even afterwards – until now. What we do know for sure is that what the Dissent presents as its own summaries of the Department of Planning data do not present a complete and accurate breakdown of the Department’s adjusted population numbers and provide no basis for contending that there are “discrepancies” in Joint Exhibit F. 96 requirements by mapmakers using accurate data is inexplicable. And the Dissent does not even venture an explanation. At any rate, the Dissent’s misinterpretation of the Department of Planning data does not support voiding the adopted plan. 2.

Alleged Lack of Transparency in Resolving the Discovery Dispute The Dissent alleges that the Special Magistrate decided the discovery dispute and the application of legislative privilege “out of public view.” Dissent at 28. That characterization is unfair to both the Special Magistrate and the parties. On February 17, 2022, the Special Magistrate conducted a remote to discuss discovery and other matters. During that live-streamed conference, the State advised that issues involving legislative privilege might arise during discovery.

In a promptly-issued scheduling order posted the next day on the Court’s website, the Special Magistrate required the parties to advise him of any discovery disputes by March 8. The parties in fact did so on March 3 by joint letter conveyed by email. The Special Magistrate who, like the parties, was operating on an extremely tight deadline, asked the parties to submit memoranda to him by email on the issue. The parties did so immediately and served each other with their respective memoranda.

Shortly after receiving the memoranda, the Special Magistrate allowed the parties to make the same points orally in a virtual meeting on March 8. The Special Magistrate promptly ruled on the issue in a March 10 order that recited the arguments of the parties and the reasoning of the Special Magistrate.87 That order was filed 87 Indeed, the Dissent cites portions of that order that explicitly quote arguments made by Petitioners in the legal memoranda submitted to the Special Magistrate. Dissent at 24, 28. That order was publicly posted when it was issued, shortly after the discovery dispute 97 and posted on the Court’s website that same day.

The Special Magistrate retained the parties’ memoranda. Presumably by inadvertence, the memoranda were apparently were not filed in MDEC by either the parties or the Special Magistrate. In filings concerning the Petitioners’ exceptions in Miscellaneous No. 25, both parties again briefed the issue in elaborate detail. Those filings have been publicly available on MDEC system and on the Court’s website since they were filed.

We agree that it would have been better for the initial memoranda emailed to the Special Magistrate to have been formally filed on MDEC as well. They have been retrieved from the Special Magistrate’s files and, although duplicative of filings already in the record, they will be added to the public record. And we agree that, although the virtual meeting concerning the discovery dispute resembled a prehearing court conference in a civil case that might not occur in open court, it ideally would have been held, in this case, in a format that was simultaneously accessible by the public. However, contrary to the characterization by the Dissent, this was not an effort to “shield” the issue or its resolution from the public.

The public was notified of the issue, the respective arguments of the parties, and the resolution when the Special Magistrate posted his order less than a week after the issue first arose.88 arose. There is simply no factual basis for the Dissent’s suggestion that either the Special Magistrate or the parties concealed this issue from the public. 88 The Dissent also asserts that the Special Magistrate – and this Court – considered the issue “without traditional briefing.” Dissent at 18 n.12. However, as reflected in the Special Magistrate’s order, the parties thoroughly briefed the issue before him and did so again in the exceptions and response to exceptions filed with the Court. 98 3. The Alleged Evidence Relied Upon by the Dissent The Dissent states that it “analyse[s] the plan on the record before the Court.” Dissent at 7 n.5.

The Dissent does not address the adequacy of the testimony actually presented at the hearing before the Special Magistrate, does not mention either the expert witnesses or the Petitioners who testified, and only briefly refers to the testimony of a non- petitioner delegate who appeared as a witness. Specifically, while alluding to “extreme partisan gerrymandering,” the Dissent does not cite to any facts in the record that would establish that the design of any of the challenged districts effected such a result. Instead, the Dissent relies on many “facts” that do not appear in the record before Special Magistrate, were not brought up by the Court or counsel at the oral argument in this case, were not raised in the Petitioners’ exceptions, and accordingly were never subject to cross-examination, rebuttal, or explanation. It further appears that a significant portion of the Dissent is devoted to relitigating failed challenges to past redistricting plans, the facts of which are not part of the record of this case.

And the Dissent devotes considerable space to recounting past challenges alleging racial gerrymandering when no such claims were made by the Petitioners in this case. The Dissent emphasizes that we have original jurisdiction of this matter. That is true. But to say that we have original jurisdiction to review a plan does not mean that we originate objections to the plan.

It does not mean that we are a free-roaming fixer of any ill we perceive. The framers of the State Constitution, like those of the federal Constitution, created a government of separate branches and defined powers that, ultimately, means a limited government. Our original jurisdiction in this case under Article III, §5, is triggered 99 by the filing of a petition, not by our own desire to redo redistricting. A petition contains allegations, as those that resulted in this case did, and our original jurisdiction means that we are the trial court charged with deciding the merits of the petition based on the evidence presented in support of, and in rebuttal of, the petition in light of the governing law.

In this case, there were petitions containing specific allegations. The parties introduced evidence for and against those allegations and ably tried the case. It is our job to decide that case based on those allegations and that evidence. It is not to devise claims not made and refer to evidence not introduced to reach a result that we prefer.

The Dissent’s discomfort with the redistricting process created by the Maryland Constitution – which assigns line-drawing to the political branches and provides a limited role for the Court – is understandable. However, this Court’s role is not to relitigate the case on facts not raised by the parties; instead, it is to address the challenges that have been presented under the law and precedents that govern redistricting in this State. V Miscellaneous No. 26 The Petition In Miscellaneous No. 26, Petitioners alleged that the adopted plan’s use of single- member delegate districts in some places and multi-member delegate districts in others violated their rights under various provisions of the Maryland and federal constitutions, both facially and as applied. Specifically, the Petition alleged that “[a]llowing multimember districts to exist and be apportioned for the Maryland House of Delegates violates the ‘one person, one vote’ principle, both as a logical prima facie violation and as 100 a violation as applied in the Plan.” Further, the Petition alleged that “multimember districts are employed exclusively under the Plan so as to allow for consolidation of partisan political power and advantage to the majority party,” and that the “failure of the Plan to have uniformly sized single member House districts” violates both constitutions.89 As relief, the Petitioners proposed that the Court order the General Assembly to adopt a plan that “specifically incorporates uniform single member House of Delegates districts” and, if the General Assembly did not do so, that the Court order that a new plan be prepared by “a special magistrate, Court-ordered expert, or in any other method or manner deemed appropriate by this Court.”90 The Hearing before the Special Magistrate The Petitioners did not introduce live testimony at the hearing before the Special Magistrate.

Instead, their counsel introduced an affidavit of Patricia Shoemaker, one of the Petitioners.91 In that affidavit, she states that her residence in Hampstead had previously been in a district entirely located in Carroll County and that, in that district, she 89 The Petitioners in Miscellaneous No. 26 also adopted by reference “the averments and objections” to the adopted plan and the “legal and factual bases” for those objections made by the petition in Miscellaneous No. 25. They offered no further elaboration or additional evidence with respect to those claims and, accordingly, there is no need to repeat our analysis of those claims in this section of this opinion. 90 According to the allegations of the Petition, Delegates Brenda Thiam and Wayne Hartman, the two legislator petitioners in Miscellaneous No. 26, would each represent single-member districts under the adopted plan. Patricia Shoemaker, a registered voter who is a petitioner in Miscellaneous No. 26, would reside and vote in a single-member delegate district under the adopted plan. 91 Otherwise, these Petitioners simply reiterated that they were adopting the evidence introduced by the Miscellaneous No. 25 petitioners. 101 had the opportunity to vote for one State senator and three delegates. As a result of the adopted plan, her residence will be in a subdistrict of a legislative district that crosses the county line into Baltimore County and thus she will have the opportunity to vote for a State senator, but only one delegate.

Referring to the Shoemaker affidavit, Petitioners’ counsel noted that some Carroll County residents will now vote in District 42C for one delegate, while other Carroll County residents in Westminster will vote for three at-large delegates. He asserted that the State had not articulated reasons for the distinction. At the hearing, counsel stated that the Petitioners were not contesting the constitutionality of Article III, §3 of the Maryland Constitution (which specifically authorizes the use of multi-member delegate districts) – thereby apparently withdrawing the facial constitutional challenge alleged in the petition – but maintained that the use of multi-member districts in the adopted plan violated other constitutional provisions – thereby maintaining the “as applied” constitutional challenge to the adopted plan. In response, the State introduced the testimony of its expert, Professor Lichtman, who observed that the Petitioners had not come forward with any facts to support their allegation that the plan used a mixture of single-member and multi-member districts for partisan advantage.

He testified that he had conducted his own analysis as to whether the plan would confer an advantage on Democrats and concluded that, given the percentage of Democrats in Maryland, the plan would result in their under-performance when compared with nine other states with multi-member legislative districts. 102 Recommendation of the Special Magistrate As indicated above, following the hearing, the Special Magistrate submitted a report to the Court in which he recommended that the Petition in Miscellaneous No. 26 be denied. He noted that the Supreme Court has held that multi-member legislative districts are not per se unconstitutional, even when used in combination with single-member districts. See White v. Regester, 412 U.S. 755, 765 (1973). He also noted that allowing a mix of multi- member and single-member districts “can serve a useful purpose of giving minority groups a better opportunity to elect one of their own.” But he suggested that the issue of disparate voting power between a voter in a three-member district and a voter in a one-member district was a “fair one” for consideration whether the part of Article III, §3 of the Maryland Constitution authorizing the mixture of single-member and multi-member districts should be amended or repealed.

Petitioners’ Exceptions to Recommendation of the Special Magistrate In their exceptions to the Special Magistrate’s recommendation that the Court deny the Petition, Petitioners again disclaimed any challenge to the facial constitutionality of Article III, §3. Instead, they stated, they were arguing that §3 was unconstitutional as applied in this plan.92 Further, they stated that they were not asking the Court to order the 92 Petitioners relied on a North Carolina case that held that a provision of the North Carolina constitution that appeared to implicitly recognize the use of multi-member state legislative districts did not “authorize use of both single-member and multi-member districts in a manner violative of the fundamental right of each North Carolinian to substantially equal voting power” under another provision of that state’s constitution. Stephenson v. Bartlett, 562 S.E.2d 377, 394 (2002). As best we can tell from that decision, there was no provision of the North Carolina constitution analogous to Article III, §3, that explicitly authorized the use of single-member and multi-member districts. 103 adoption of a map composed entirely of single-member districts, but instead had alternatively asked that the Court order the preparation of a plan “in any other manner,” which, they stated, could include the multi-member districts when justified by a compelling state interest.

Analysis Multi-member legislative districts are expressly permitted by Article III, §3. They do not violate equal protection principles per se, but they may do so as applied, as when drawn “invidiously to minimize or cancel the voting potential of racial or ethnic minorities.” See 1982 Districting, 299 Md. at 673-74 (citations omitted) (referring to the Fourteenth Amendment); see also 1992 Districting, 331 Md. at 606 (discussing multi- member districts in the context of the Voting Rights Act). Petitioners bear the burden of establishing such a claim. 2012 Districting, 436 Md. at 143-44. Petitioners made no such claim and introduced no evidence in support of such a claim.

In the absence of such a claim supported by sufficient evidence, the Maryland Constitution expressly permits a mix of single-member and multi-member districts. Likewise, the use of single-member districts in some places and multi-member districts in others does not on its face violate either the Maryland Constitution (which expressly permits that use) or the federal Constitution. To the contrary, single-member districts are sometimes created to ensure compliance with the Voting Rights Act. See 1992 Districting, 331 Md. at 608.

At other times, as Mr. Aro testified before the General Assembly, subdistricts are sometimes used to preserve representation for a locality when population shifts require a district to cross subdivision boundaries. In those cases, a 104 subdistrict ensures that the people in the crossed-over area “would not be overwhelmed by an [] at-large district.” In any event, the Supreme Court has observed, with regard to bicameral legislatures, that “[o]ne body could be composed of single-member districts while the other could have at least some multimember districts.” Reynolds v. Sims, 377 U.S. 533, 577 (1964). The Supreme Court further noted that “[s]ingle-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multimember or floterial districts.” Id. at 579 . In 2002, this Court created and adopted a plan that used a mix of single-member and multi-member districts.

See 2002 Court Redistricting Plan, 369 Md. at 601-49 (order specifying Court plan). In short, the Maryland Constitution permits mapmakers to use a mix of single- and multi-member districts, and it does not condition the practice on the determination of a compelling state interest. While the Governor’s Executive Order directed his appointed commission to use single-member districts to the extent possible,93 and other states’ constitutions might contain such a requirement, adding such a requirement to the Maryland Constitution lies beyond the role of this Court. With regard to the Petitioners’ argument that Article III, §3 was unconstitutional as applied in the plan, they introduced no evidence to support their allegation of a systematic use of single-member and multi-member districts to achieve an unfair partisan advantage. 93 COMAR 01.01.2021.02C(1)(d)(ii).

Notably, the Governor’s commission determined that it was unable to reach a consensus on the universal use of single-member subdistricts in its plan. It ultimately reached a compromise that included a mix of three- member and single-member delegate districts. See Report of the Special Magistrate, Appendix II (Final Report of the Maryland Citizens Redistricting Commission at pp. 8-9). 105 If, by incorporating all of the evidence presented in Miscellaneous No. 25 into their case, they intended to rely on any of that evidence to support that claim, they did not identify it. Even without the testimony of the State’s expert to the effect that the delegate subdistrict lines did not confer a partisan advantage, Petitioners’ conclusory allegation that those lines constituted an impermissible “gerrymander” was speculative at best.

Summary The Petition and evidence in Miscellaneous No. 26 did not establish by compelling evidence that the plan adopted by the General Assembly violated either the Maryland Constitution or the federal Constitution. VI Miscellaneous No. 27 The Petition Petitioner Seth E. Wilson filed a pro se petition challenging the adopted plan only as to subdistrict 2A, a two-member delegate district that lies largely in Washington County and crosses into Frederick County.94 In his petition, he also protested the adjustment of the population attributed to Washington County for purposes of redistricting pursuant to Maryland Code, State Government Article, §2-2A-01. That statute was enacted in 2010 as part of the No Representation Without Population Act95 and provides for the assignment of incarcerated individuals to their actual domiciles for purposes of redistricting. As a 94 His petition also appears to complain about the 2012 version of that district and expresses a preference for the districting lines drawn in 2002. 95 Chapters 66, 67, Laws of Maryland 2010.

See footnote 12 above. 106 result, prisoners who are incarcerated in Washington County but hail from other jurisdictions or from out of state and who would have been attributed to Washington County under prior law no longer were counted in that manner for purposes of redistricting. Mr. Wilson contended that the Maryland Constitution does not permit the State to adjust a county’s population under the Act when the adjustment would require the drawing of a district across county lines. He also asserted that Article III, §4 of the Maryland Constitution and, by extension, the Fourteenth Amendment to the United States Constitution do not permit the State to make that adjustment when it would result in the drawing of multi-member subdistricts. For relief, Mr. Wilson asked that the Court order that three single-member House subdistricts be created within Senate District 2, with two of the subdistricts entirely within Washington County.

He asked that the Court declare the No Representation Without Population Act of 2010 “null and void” and that the incarcerated individuals excluded from the count for Washington County be added back into the count for purposes of redistricting. The Hearing Before the Special Magistrate Mr. Wilson did not submit any testimony or other evidence at the hearing before the Special Magistrate. However, he did attend the hearing and present argument. Recommendation of the Special Magistrate As indicated above, the Special Magistrate recommended in his report that the Petition be denied.

The Special Magistrate noted that Washington County had sufficient 107 population to have a Senate district and associated House districts entirely within its borders. However, he also noted that the combined population of Garrett and Allegany counties was significantly less than what was necessary to create an “ideal” Senate district – i.e., one that would that satisfy the constitutional criterion of “substantially equal population” in comparison to other Senate districts. He also noted that those drawing the districting maps had little choice but to start at the State’s external boundaries and work toward the interior – in the case of Western Maryland, moving from west to east – to avoid painting themselves into a corner where they could not comply with the constitutional criteria. For that reason also, District 2 crossed into Frederick County.96 The Special Magistrate noted that the Supreme Court had approved the use of both single-member and multi-member districts in state legislative districting and that this Court had used such a mix when it created its own plan in 2002.

Finally, he cited the 96 From the 2020 census, the Special Magistrate concluded that the combined population of Garrett County and Allegany County was well short of the population of the “ideal” Senate district (131,391), and that the deficit would need to be made up by extending the boundary of District 1, which encompassed those two westernmost counties, into Washington County, the nearest adjoining county to the east, to add the necessary population. That, in turn, resulted in extending the boundary of District 2 from Washington County into Frederick County, in order to pick up the necessary population for District 2. In the General Assembly, Ms. Davis testified at the joint committee hearing on January 18, 2022, that population loss in the westernmost counties required the extension of District 2 across the county line. She stated that subdistrict 2A includes the City of Thurmont, a municipality, and goes to, but not across, the Carroll County line.

Hypothetically, we suppose, a challenger could take issue with the mapmakers’ practice of beginning in the west of the State instead of somewhere else, but no Petitioner has questioned that practice. Quite likely, given the barrier posed by the Chesapeake Bay and the heavy concentration of population in the counties on its western shore, the result would be the same: a cluster of districts in those counties, and subdivision crossings, both there and to the west. 108 authorization in Article III, §3 of the Maryland Constitution. The Special Magistrate concluded that “[t]here is no legal impediment to including multi-member districts, even when the district or part of it includes residents of another county, at least when that becomes necessary to