DuBois v. City of College Park

Eldridge, J., delivered the opinion of the Court. The largest campus of the University of Maryland is located in the City of College Park in Prince George’s County, Maryland. Pursuant to a court order to reapportion its councilmanic districts, the City of College Park adopted a revised apportionment plan that excluded from its population apportionment base a large segment of students who lived in the University’s dormitories. The issue before us is whether the exclusion of these students, under the circumstances of this case, violated the equal protection of the laws, and particularly the “one person one vote” principle of Baker v. Carr, 369 U.S. 186 , 82 S. Ct. 691 , 7 L. Ed. 2d 663 (1962); ⁶⁷⁹ Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362 , 12 L. Ed. 2d 506 (1964), and their progeny.

The City of College Park is divided into eight councilmanic districts, each of which elects one councilman to the City Council. The College Park campus of the University of Maryland is largely contained in parts of the third and fifth districts — often referred to as the “student” districts. All dormitories are within the third and fifth districts. On the other hand, some fraternity and sorority houses, in which students also reside, are located in the second district.

In connection with its apportionment plan adopted in 1967, the City of College Park had to determine a population apportionment base, from which would be calculated the equal number of persons that would be included in each of its eight districts. The City arrived at its apportionment base by subtracting from its total federal census population, which included all students physically residing in the City of College Park, those students who physically resided in dormitory facilities at the University. 1 After the 1970 federal census was conducted, the City established a reapportionment committee. Although the reapportionment committee developed several different ⁶⁸⁰ reapportionment plans, none was adopted by the City, and it continued to use the apportionment plan of 1967. In October 1975, three students began the instant proceedings by filing a class action in the Circuit Court for Prince George’s County, alleging that the 1970 census showed the councilmanic districts to be unequally apportioned.

The plaintiffs claimed that as a result of this malapportionment, the votes of the plaintiff class were unconstitutionally diluted. The named plaintiffs, Renee DuBois, David Johnson and Zachary Kinney, were alleged to be students at the University of Maryland, residents of the City of College Park, and registered to vote in City elections. One of the plaintiffs lived in a dormitory in the fifth district, one lived in a fraternity house in the third district, and one lived in a sorority house in the second district. The class represented by the named plaintiffs was defined as those students at the University of Maryland who were residents of the City of College Park and qualified to vote in all City elections.

As developed at trial, the basis of the plaintiffs’ claim was that on-campus students were excluded from the apportionment figure which was used to determine the size of each councilmanic district of the City. As a result, according to the plaintiffs, their individual votes were diluted because the two councilmanic districts that include the University of Maryland campus contained two or three times .the population of the other six districts. According to the evidence produced at the trial, the total population of College Park, as determined by the 1970 federal census, was 26,156, which included the students who lived within the University’s physical boundaries within the third and fifth districts, as well as students who lived elsewhere within the City. However, after interpolating the 1970 census figures into the eight districts as they were constituted under the 1967 apportionment plan, the City calculated that its new apportionment base would only be 17,517.

Consistent with the method that it employed with the 1967 plan, the new apportionment base was arrived at by excluding from the 1970 census total population the approximately 8,000 ⁶⁸¹ students, as determined by numbers supplied by University of Maryland officials, who resided in dormitories within the physical boundaries of the University. 2 The Mayor stated, however, that the apportionment base of 17,517 included all students who resided in districts other than the third and fifth, and this fact was reiterated by counsel for the City at a hearing before the circuit court. Based upon the 17,517 population figure, a perfectly apportioned plan would have had 2,190 persons in each district. All parties agreed, however, that if the students who resided within the physical limits of the University should have been included in the apportionment base, then the City’s districts, even if changed to reflect 1970 population figures, would be malapportioned. If the 8,812 students living in University residence facilities in the third district and the 4,685 students living in University residences in the fifth district were added to the population already included in these districts under the 1967 plan, as adjusted for the 1970 census, then the total population within these districts would be 5,843 and 6,906 respectively.

These figures are far in excess of the 2,190 persons who would be in each of the other districts. At the close of the trial, the circuit court concluded that none of the named plaintiffs was domiciled in College Park. Therefore, the court held that the named plaintiffs lacked standing to maintain the action. In addition, because the named plaintiffs were not deemed domiciliaries of the City, they were held to be outside of the class which they purported to represent.

The circuit court dismissed the action for lack of standing. ⁶⁸² The plaintiffs appealed to the Court of Special Appeals, and this Court issued a writ of certiorari prior to a decision by the intermediate appellate court. We held that the plaintiffs, as registered voters of the City of College Park, had standing to maintain a suit challenging the City’s apportionment. DuBois v. City of College Park, 280 Md. 525 , 375 A.2d 1098 (1977). Further, we stated that the City, by moving to dismiss for lack of standing, could not collaterally challenge whether the plaintiffs were properly registered as voters.

Instead, we held that any challenge by the City to the plaintiffs’ status as registered voters must be made through the procedures prescribed by statute and the City charter for making such challenges. 280 Md. at 529, 533-534 . The case was remanded to the circuit court. After further arguments were held, the circuit court found that, in light of the 1970 census, the deviation between the actual population in each district and the number of persons who would constitute a properly apportioned district, was too large. The court, however, rejected the plaintiffs’ claim that all on-campus students should also be included in the City’s apportionment base.

The circuit court reasoned that, according to the principles set forth by this Court in Bainum v. Kalen, 272 Md. 490 , 325 A.2d 392 (1974), an on-campus student was presumed to be a domiciliary of his former place of residence. The court stated that a student could overcome this presumption by registering to vote in College Park, at which time the student must affirm by oath that he intended to remain a City domiciliary. Therefore, the court held that equal protection principles did not require the inclusion of all on-campus students in the apportionment base because this would encompass transient nonresidents. The court further held that, because some of the students who resided within the University’s boundaries had overcome the presumption of nonresidency by registering to vote in the City, the City was required to include in its apportionment base any student in the third or fifth district who had registered to vote.

Moreover, the court noted that this inclusion of students who resided in the third and fifth districts, and who had registered to vote, would further increase the existing ⁶⁸³ malapportionment in light of the 1970 census. The court then ordered the City to submit a new apportionment plan, consistent with its opinion, correcting the existing malapportionment. The City subsequently submitted a revised apportionment plan which, all parties agreed, conformed to the court’s order. A final judgment approving the new plan was entered.

The plaintiffs again appealed, and this Court again issued a writ of certiorari prior to a decision by the Court of Special Appeals. The primary issue on this appeal is whether the approved apportionment plan, which in six districts included all students in the population base, and in two districts apparently included all off-campus students but only those on-campus students who had registered to vote, violates equal protection of the laws. 3 The plaintiffs contend that the circuit court erred in holding that the City only had to include those on-campus students who had registered to vote instead of the ⁶⁸⁴ entire on-campus student population. They argue that the inclusion of all off-campus students in the apportionment base whether or not they are registered to vote, while requiring that on-campus students must register to vote in order to be included, creates an arbitrary classification. The general principle governing legislative apportionment is that there “must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen.” Reynolds v. Sims, supra, 377 U.S. at 579 .

See also St. Adm. Bd. of Elect. Laws v. Calvert, 272 Md. 659 , 327 A.2d 290 (1974), cert. denied, 419 U.S. 1110 , 95 S. Ct. 784 , 42 L. Ed. 2d 807 (1975). 4 Some differentiation among citizens with respect to the weight of their vote may be permissible if it related to “permissible purposes of legislative apportionment” or effected “a rational state policy,” 377 U.S. at 565, 579 . Nevertheless, “if, even as a result of a clearly rational state policy ... population is submerged as the controlling consideration in the apportionment' of seats in the particular legislative body, then the right of all of the State’s citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired.” {Id. at 581.) Moreover, in deciding reapportionment cases like the present one, classifications having the effect of diluting a ⁶⁸⁵ person’s right to vote are subject to careful scrutiny.

This was explained by the Supreme Court in Reynolds v. Sims, supra, 377 U.S. at 561-562 , as follows: “While the result of a court decision in a state legislative apportionment controversy may be to require the restructuring of the geographical distribution of seats in a state legislature, the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State’s citizens which constitutes an impermissible impairment of their constitutionally protected right to vote. Like Skinner v. Oklahoma, 316 U.S. 535 , such a case ‘touches a sensitive and important area of human rights,’ and ‘involves one of the basic civil rights of man,’ presenting questions of alleged ‘invidious discriminations ... against groups or types of individuals in violation of the constitutional guaranty of just and equal laws.’ 316 U.S., at 536, 541 . Undoubtedly, the right of suffrage is a fundamentalmatterm a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinized. ’’ (Emphasis supplied.) Abate v. Mundt, 403 U.S. 182, 185 , 91 S. Ct. 1904, 1906-1907 , 29 L. Ed. 2d 399 (1971); Kramer v. Union School District, 395 U.S. 621, 626-630 , 89 S. Ct. 1886, 1889-1891 , 23 L. Ed. 2d 583 (1969); O. C. Taxpayers v. Ocean City, 280 Md. 585, 594 , 375 A.2d 541 (1977).

The City has attempted to justify its exclusion from the apportionment base of on-campus students who have not registered to vote by arguing that these students are transients and are not in fact residents of College Park. The City accordingly argues that to include these nonresidents would dilute the weight of the votes of true residents of the ⁶⁸⁶ City who would be expected to have a greater interest in municipal affairs. In support of its argument, the City points to language in Burns v. Richardson, 384 U.S. 73, 91-92 , 86 S. Ct. 1286, 1296-1297 , 16 L. Ed. 2d 376 (1966), where the Supreme Court stated: “We start with the proposition that the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population equivalency is to be measured. Although total population figures were in fact the basis of comparison in ... [the case of Reynolds v. Sims] and most of the others decided that day, our discussion carefully left open the question what population was being referred to.

At several points, we discussed substantial equivalence in terms of voter population or citizen population, making no distinction between the acceptability of such a test and a test based on total population. Indeed, in WMCA, Inc. v. Lomenzo, 377 U.S. 633 , decided the same day, we treated an apportionment based upon United States citizen population as presenting problems no different from apportionments using a total population measure. Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime, in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere.

Unless a choice is one the Constitution forbids, cf., e.g., Carrington v. Rash, 380 U.S. 89 , the resulting apportionment base offends no constitutional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.” ⁶⁸⁷ It is clear, however, that the City could not invoke the theory that students are generally transients, in order to deny the right to vote to any student who in fact met the voting qualifications of the City Charter. 5 See Evans v. Cornman, 398 U.S. 419 , 90 S. Ct. 1752 , 26 L. Ed. 2d 370 (1970); Carrington v Rash, 380 U.S. 89 , 85 S. Ct. 775 , 13 L. Ed. 2d 675 (1965); Whatley v. Clark, 482 F.2d 1230 (5th Cir. 1973), cert. denied, 415 U.S. 934 , 94 S. Ct. 1449 , 39 L. Ed. 2d 492 (1974). For example, the Supreme Court in Carrington v. Rash, supra, 380 U.S. at 93-96 , held that Texas could not constitutionally deny military personnel the right to vote where such military personnel had moved their residence to Texas after their entrance into the military, if those persons otherwise met the state’s voter qualification requirements. ⁶⁸⁸ Not only is it impermissible to deny the right to vote to students or servicemen who otherwise meet voter qualifications, but a