Getty v. Carroll County Board of Elections

BELL, Chief Judge. The instant case concerns the election of local public officials in the State of Maryland. Specifically, at the core of this action is the issue of the authority of the Circuit Court for Carroll County, by its approval of an agreement (“Consent Order”) between a private party and an executive agency, to modify the method of election of Carroll County commissioners. 1 Article VII of the Maryland Constitution, captioned “Sundry Officers,” governs the method of election of commissioners in a county commissioner form of local government. It provides: “Section 1.

The County Commissioners of each county not governed by Article XI-A of this Constitution.[ 2 ] may be elected by the voters of commissioner districts established ⁷¹⁴ therein, or by the voters of the entire county [at-large], or by a combination of these methods of election, as provided by the General Assembly by law.” “Section 2. The number, compensation, and powers and duties of the County Commissioners of each county not governed by Article XI-A of this Constitution shall be such as now are or may be hereafter prescribed by law.” (Emphasis added). Because we conclude that, as ordained by the Constitution, the power and authority to designate the method of election ultimately, and exclusively, lies with the Legislature, we shall hold that the Circuit Court’s approval of the Consent Order authorizing a change in the method of election of county commissioners was a clear violation of Article VII, §§ 1 and 2 of the Maryland Constitution. I. In the case sub judice, the Carroll County Board of Elections (“the Board”), in an attempt to expand the number of county commissioners in order to implement district, instead of at-large, representation, entered into a Consent Order with Dana Lee Dembrow (“Dembrow”), a registered voter in Carroll County, Maryland.

Under that Consent Order, the County committed to the adoption of a redistricting plan creating five commissioner districts in the County, and, thus, in effect, to create a new method of election of commissioners for the November 7, 2006 General Election. Carroll County currently has, and has had since its formation, 3 a commissioner form of government, with three county commissioners. The three persons elected to serve on the ⁷¹⁵ County’s Board of Commissioners historically were elected at-large. In 2003, however, House Bill 290 (2003), mandating the expansion of the Carroll County Board of Commissioners (“the CCBC”) from three members to five, providing for their election by district, rather than at-large, and establishing a process for the creation of five commissioner districts in the County, was introduced in the Maryland General Assembly, adopted by both houses and signed by the Governor, as Chapter 417, 2003 Laws of Maryland.

Section 2 of Chapter 417 conditioned the Act’s becoming effective on its approval by referendum of the legally qualified voters of Carroll County at the next general election. 4 The Act was referred at the 2004 General Election, and it was approved by Carroll County voters and codified as Public Local Laws of Carroll County § 3-101. As enacted, the legislation provided, as relevant: ⁷¹⁶ “(a) The Board of County Commissioners for Carroll County consists of five Commissioners to be elected by Commissioner District. * * * “(c) Redistricting Committee. “(1) On or before May 1, 2005, and on or before May 1 following the release of each decennial census of the United Stated thereafter, the County Commissioners shall appoint a Commission Redistricting Committee. “(2) (i) The Commission Redistricting Committee shall consist of seven members. “(ii) Of the seven members: “1. Three shall be recommended by the County Republican Central Committee; “2. Three shall be recommended by the County Democratic Central Committee; and “3.

One shall be recommended by the County Board of Elections. “(3) The Commission Redistricting Committee shall recommend: “(i) The establishment of five Commissioner districts in the county of substantially equal population; and “(ii) Provisions for staggered terms of office for the Board of County Commissioners. “(4) On or before December 1, 2005, and on or before December 1 following the release of each decennial census of the United States thereafter, the Commission Redistricting Committee shall report its recommendations to the Carroll County Legislative Delegation to the General Assembly for consideration at the following legislative session.” (Emphasis added). As § 3-101 required, and in accordance with its prescription, the incumbent members of the CCBC appointed the seven members 5 of the Commission Redistricting Committee ⁷¹⁷ (“the Committee”). The Committee’s function was to make recommendations to the Carroll County Legislative Delegation (“the Delegation”) as to the boundaries of the proposed five commissioner districts, “for consideration at the following legislative session.” The Committee drafted two alternative redistricting plans, designated as Option 1 (“the Wheatley Plan”) and Option 2. Under Option 1, or the Wheatley Plan, Carroll County was divided into a central Westminister district; a northern district consisting of Taneytown and Manchester; a southwestern district consisting of New Windsor, Union Bridge and Mount Airy; a southeastern district consisting of Sykesville and Eldersburg; and an eastern district consisting of Hampstead and Finksburg.

Under Option 2, the five districts created were a central Westminister district; a northeastern district containing Hampstead and Manchester; a northwestern district containing Taneytown, New Windsor and Union Bridge; a southwestern district containing Mount Airy and Sykesville; and a southeastern district containing Eldersburg and stretching from the Howard County line to the south side of Md. 140. In this delineation, Finksburg was split between the northeastern and southeastern districts. These plans were the subject of several public hearings, at which the Committee solicited and received input from the Carroll County citizenry. At its final meeting on June 30, 2005, by a vote of 4 to 2, 6 the Committee adopted and, therefore, recommended Option 2.

It completed and submitted its Final Report, including the Committee’s Guidelines, minutes of both its meetings and the ⁷¹⁸ public hearings, and map configurations, to the Carroll County Delegation on August 23, 2005. Thereafter, the Carroll County Delegation held two public hearings on the Committee Report, one on October 25, 2005 and the other on December 13, 2005. At the latter meeting, the Delegation rejected the Committee’s recommendation of Option 2 and adopted, instead, by a vote of 5 to 2, the Wheatley Plan. 7 The Wheatley Plan, as P.L.L. § 3-101(c)(4) required, was introduced, on January 30, 2006, “at the following legislative session,” as House Bill 491. Due to the closeness of the election at which the plan was to be implemented, House Bill 491 was introduced as emergency legislation.

Although it passed the House of Delegates and the Senate Education, Health and Environmental Affairs Committee (“the Senate Committee”), on sine die, the Maryland General Assembly adjourned without completing action on the bill. In response to the Delegation’s failure to secure the passage of House Bill 491 and acting on the advice of the Attorney General, 8 on April 17, 2006, the Board determined that the ⁷¹⁹ election of the five county commissioners would be conducted at-large and not by district. It did so on the basis that no delineation of commissioner districts had been at the time lawfully created by the General Assembly.

II

Having learned of the Board’s decision, Dembrow, the plaintiff below and one of the appellees in this appeal, filed, in the Circuit Court for Carroll County, a Complaint for Declaratory Judgment and Writ of Mandamus, naming the Board as defendant. 9 Specifically, Dembrow sought to compel the Board “to implement the directive of a certain voter referendum adopted by the voters of Carroll County, Maryland in November 2004 requiring the election of county commissioner by district in the 2006 elections.” 10 In response to Dembrow’s Complaint, the Board held two emergency meetings to discuss the pending litigation, at the second of which Dembrow was in attendance. Having heard from Dembrow with regard to the nature of his Complaint ⁷²⁰ and the relief he sought, the Board unanimously voted to enter into the Consent Order with Dembrow “to seek jointly at the earliest possible time an Order of the Circuit Court authorizing the conduct of [Carroll County] elections using commissioner district boundaries as designed, approved and recommended by the Redistricting Committee, also known as ‘Option 2.’” The Circuit Court expedited its review of the Consent Order “in order to afford [the Board] as much time as possible to plan and conduct orderly elections in the fall of 2006 as required by law and dictated in part by a certain voter referendum____” Based solely on the “joint and abbreviated presentations by counsel,” no notice to the public having been given and no evidentiary hearings having been held, the Circuit Court issued its Order approving the Consent Order and marking the action “as settled and dismissed with prejudice.” As approved, the Consent Order provided, as pertinent: “1. [The Board] withdraws its determination of April 17, 2006 to conduct the election of five (5) members of the Carroll County Board of Commissioners in the 2006 election at large rather than on the basis of districts. “2. [The Board] agrees to conduct the 2006 election of five (5) members of the Carroll County Board of Commissioners by district rather than at large. “3. [The Board] adopts the December 2005 recommendation of the Districting Committee also known as Option No. 2, and places the said adopted recommendation for Carroll County Commissioner districts in place for the 2006 election by determination of the Carroll County Board of Elections dated April 19, 2006.” On April 24, 2006, James Harris (“Harris”), for the purposes of appealing or filing motions for reconsideration, filed, pursuant to Maryland Rule 2-214, 11 a Motion to Intervene in the ⁷²¹ action. In that motion, he alleged “that there was no authority to pass [the Consent Order] as only the state legislature can set or delineate election district boundaries for County Commissioners.” The following day, on April 25, 2006, Getty filed a Motion to Intervene as of Right for the Purpose of a Post-Judgment Appeal. Getty alleged that the Board did not have the authority to create commissioner districts, and, further, that the only power that the Board had was “to recommend the name of one member for appointment by the County Commissioners of Carroll County to the seven-member Commission Redistricting Committee, which power [had] been exhausted.” Moreover, Getty posited that “the authority to create the five commissioner districts [was] reserved entirely to the legislative branch through action by the Maryland General Assembly.” Finally, Getty submitted that “the [Cir ⁷²² cuit] Court’s Final Order of April 19, 2006, unlawfully and unconstitutionally impair[ed] and/or defeated] the weight of ... [his] vote [and] impaired] and defeated] the ability to protect the interests of the public in securing the lawful adoption of a commissioner redistricting plan.” Both motions were unopposed, and the Circuit Court granted them on April 25, 2006.

The following day, Harris noted an expedited appeal to this Court, which was later amended, on May 11, 2006, as a corrective notice of appeal to the Court of Special Appeals. On May 1, 2006, Getty also noted an appeal to the Court of Special Appeals. He then filed, on May 4, 2006, a Motion to Stay the Circuit Court’s Order pending appeal, in which Harris joined, reiterating his intervention arguments and claiming, in addition, that Dembrow’s Complaint was improper because both forms of relief requested could not be granted. They averred that the issuance of a writ of mandamus was improper on the basis that the Circuit Court could not compel the Board to adopt a redistrieting plan since the Board does not have the power to create district lines, while a motion for declaratory relief was baseless once the Board agreed to the Consent Order.

In response, Dembrow filed an opposition to the motion to stay the Circuit’s Court ruling and a Motion to Dismiss, or in the alternative, to Transfer the Appeal to the Court of Appeals for Expedited Review. The Circuit Court denied the intervenors’ Motion to Stay, holding that it “would not promote the expeditious resolution of this matter.” This Court, on its own initiative, issued a Writ of Certiorari on May 15, 2006. Getty and Harris v. Board of Elections, 392 Md. 727 , 898 A.2d 1006 (2006). Oral Argument was heard on June 1, 2006, and, on that same day, the Court issued its Order vacating the judgment of the Circuit Court and remanding the ease to that court “with directions to order the Carroll County Board of Elections that, in the absence of an enactment by the General Assembly of Maryland, pursuant to Article VII, §§ 1 and 2 of the Maryland Constitution, of new legislation for the election of Carroll County Commissioners in the 2006 elections, the 2006 elections of Carroll County Com ⁷²³ missioners shall be in accordance with § 3-101(a) of the Public Local Laws of Carroll County as that subsection provided immediately prior to the passage of Chapter 417, 2003 Laws of Maryland,” ie. the election of three county commissioners at-large.

We now set forth the reasons for that Order.

III

The appellants, in this Court, as they did in the Circuit Court, argue that the Circuit Court erred in approving the Consent Order between Dembrow and the Board creating commissioner districts in Carroll County. They proffer three theories. At the core of their argument is the separation of powers doctrine. The appellants, citing to this Court’s past redistricting cases, In re Legislative Districting, 370 Md. 312 , 805 A.2d 292 (2002); Legislative Redistricting Cases, 331 Md. 574, 614 , 629 A.2d 646, 666 (1993); In re Legislative Districting, 299 Md. 658, 672-81 , 475 A.2d 428 (1984) and In re Legislative Districting, 271 Md. 320 , 317 A.2d 477 (1974), claim that the authority to create districts for political offices is a uniquely legislative function, one which should not, and is not permitted to be, under the separation of powers doctrine, infringed upon by the judiciary.

The appellants asseverate further that “[t]he Board also lacked authority to establish such districts and ... was bound to conduct the election on an at large basis absent some form of appropriate judicial intervention.” (Emphasis added). First, the appellants assert that the Circuit Court’s actions “improperly usurped the legislative function required by Section 3-101 of the Code of Public Laws of Carroll County.” The appellants also take issue with the Circuit Court’s failure to hold an evidentiary hearing after notice of the Complaint to the Delegation or, more important, to the citizens of Carroll County, and with the Circuit Court’s “blindly accepting] ... at face value a purported consent disposition on [an] issue with countywide ramifications that had been reached between only two parties[,]” the effect of which, in essence, was the promotion of “a private individual and a ministerial agency [ ] into a legislative body responsible for deciding the countywide commissioner districts.” Accordingly, they urge this Court to ⁷²⁴ nullify the Circuit Court’s Order and, instead, give deference to the Delegation’s endorsement of the Wheatley Plan and to instruct the Circuit Court to adopt said plan. The second theory upon which the appellants base their argument concerns “basic due process principles and precedent established by Maryland’s courts for addressing redistricting issues.” Specifically, the appellants posit that the Circuit Court should have adhered to the “fair and open process for the consideration of disputes over redistricting” that has been established by this Court, including, but not limited to, “the ability for anyone who is aggrieved to petition the Court with specific challenges to [a given] redistricting plan, the appointment of a Special Master as a fact-finder, and a heaxing to allow all sides of the challenge to be heard.” It is the appellants’ contention that, in hastily approving the Consent Order, the Circuit Court disregarded this process altogether. 12 In addition, the appellants assert that the Circuit Court should have afforded “local courtesy” 13 to the Delega ⁷²⁵ tion’s approved plan (the Wheatley Plan), as opposed to simply accepting and authorizing the plan to which the appellees consented. The Wheatley Plan, according to the appellants, should have been the Circuit Court’s “point of beginning,” when reviewing Dembrow’s Complaint.

Consequently, in the appellants’ view, the Circuit Court’s recognition of the Wheatley Plan would have required Dembrow. and the Board to challenge the plan’s constitutionality, to point out any infirmities it may have or why its adoption was improper. The appellants final theory finds its basis in the Maryland Uniform Declaratory Judgments Act (“the D JA”) of Maryland Code (1974, Repl. Vol. 2006) §§ 3401 et seq. of the Courts and Judicial Proceedings Article (“CJP”). Specifically, the appellants asseverate that “[t]he lower court’s Order is a complex amalgamation of forms of relief, none of which satisfy the statutory prerequisites for issuing a declaratory judgement as set forth in the [Act].” The appellants maintain that the Act is “remedial in nature” and intended to settle matters involving “uncertainty and insecurity.” 14 Moreover, the appellants emphasize the adversarial nature of the Act and claim that it was not satisfied below because there existed no controversy between the parties once they entered into an agreement to extinguish the Complaint. 15 The Circuit Court, thus, could not ⁷²⁶ have granted the relief requested by Dembrow and should have dismissed the action since, as the appellants submit, “litigants in a pending civil lawsuit may [not] obtain a ‘declaratory judgment’ by consent.” Similarly, the appellants argue that the court failed to adhere to the applicable rules for issuing a writ of mandamus, and that if its order could be construed as such that it “was entirely inappropriate.” 16 Finding no flaw in the Circuit Court’s approval of the Consent Order, the appellees, not surprisingly, take the contrary view and urge this Court to enforce the Consent Order.

The appellees’ main argument, although based on different theories, 17 is that the Circuit Court did not err in its ⁷²⁹ approval of the agreement between them because, according to them, the court had, indeed, the authority to approve the Consent Order, “without abridging the notion that the judicial branch ought not to inject itself into matters reserved solely for legislative or executive branch prerogative, and ought not inject itself into purely political matters at all,” thus making the Consent Order binding on the Board and its conduct of the Carroll County elections for county commissioners. The appellees argue that the General Assembly satisfied the requirements prescribed in Article VII of the Maryland Constitution for modifying the method of election of county commissioners when it adopted House Bill 290. They assert that, by enacting House Bill 290, without regard to the voter referendum provision, the General Assembly expressed its intention on the subject; “by law,” it provided for the election of five, instead of three, county commissioners and for their election by district, rather than at-large, in the 2006 election, subject only to the condition that the bill be approved by the Carroll County electorate. Once that condition was met, they maintain, “the legislation became fully effective and five Carroll County commissioners [were to] be elected in 2006 by district.” Relying on Maryland Code (2003, 2006 Cum.

Supp.) § 12-202(a) of the Election Law Article and Maryland Code (1973, Repl. Vol. 2006) § 3-409 of the Courts and Judicial Proceedings Article, the appellees asseverate further that the Circuit Court properly authorized the Consent Order. Indeed, they submit that the court not only was authorized, but it was compelled, by both § 3-101 and the failure of the General Assembly to delineate district lines, to “set the districts and Order the Board of Elections to comply with the requirements of law.” With regard to the speed with which the Circuit Court considered the issue, the appellees assert that, given the timing of the filing of the action, the deliberations that already had elapsed and the imminence of the general election, only months away, with its various procedural and filing deadlines, it was imperative for the Circuit Court to act when, and in the ⁷³⁰ manner that it did to ensure the orderly conduct of that election. In any event, the appellees proffer that the Circuit Court did no more than it was required to do, simply approve the Consent Order, there having already been, over the course of the previous approximately three years, legislation by the General Assembly, a voter referendum, “formal meetings” of both the Committee and the Delegation on the matter and “extensive public debate.” IV.

Before turning to the merits of this case, it is important to review the two principles underlying the issue involved-separation of powers and redistricting. We will touch briefly on both these subjects. A. Maryland’s separation of powers jurisprudence has its origin in the State’s first Constitution. Thus, the doctrine is a part of the State’s organic law.

Found specifically in Article 6 of the Declaration of Rights of the Maryland Constitution of 1776, and dividing the powers of the state government into three departments, it mandated that the “legislative, 18 executive 19 and judicial powers 20 of government ought to be for ever separate and distinct from each other.” In 1851, with the adoption of a new constitution, that language was incorporated, and expanded, to explicitly prohibit one branch of government from assuming or usurping the power of any other branch. As adopted in 1851, and as provided in the current Maryland Constitution, 21 Article 6 of the Maryland Declaration of Rights provided: ⁷³¹ “That the legislative, executive and judicial powers of government ought to be for ever 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.” This Court has long recognized, and frequently discussed, the general maxim of the separation of powers. As early as 1829, we stated: “The Constitution of this State, composed if [sic] the Declaration of Rights and form of government, is the immediate work of the people, in their sovereign capacity, and contains standing evidences of their permanent will. It portions out supreme power, and assigns it to different departments, prescribing to each the authority it may exercise, and specifying that from the exercise of which it must abstain.

The public functionaries move then in a subordinate character, and must conform to the fundamental laws or prescripts of the creating power. When they transcend defined limits, their acts are unauthorized, and being without warrant, are necessarily to be viewed as nullities.” Crane v. Meginnis, 1 G. & J. 463, 472 (1829) (emphasis added); see also, e.g., Schisler v. State, 394 Md. 519, 549-79 , 907 A.2d 175, 193-211 (2006) (providing a detailed history and evolution of the separation of powers doctrine), and cases cited therein; Wright v. Wright’s Lessee, 2 Md. 429 (1852) (elucidating the purpose of the separation of powers doctrine). While recognizing that distinct demarcations exist in the lines of authority of our State’s government, we have also acknowledged that the departments are not “wholly separate and unmixed.” Crane, 1 G. & J. at 476 (emphasis in original). Instead, the powers of the State government are “blended and mingled together.” Id.

We made the point recently in Benson v. State, 389 Md. 615, 644 , 887 A.2d 525, 542 (2005), when we observed that “[t]his Court has repeatedly pointed out that Article 8 of the Maryland Declaration of Rights does not impose a complete separation between the branches of government,]” quoting Christ by Christ v. Dep’t of Natural Re ⁷³² sources, 335 Md. 427, 441 , 644 A.2d 34, 40 (1994); McCulloch v. Glendening, 347 Md. 272, 283 , 701 A.2d 99, 104 (1997); Judy v. Schaefer, 331 Md. 239, 261 , 627 A.2d 1039, 1050 (1993); Dep’t of Trans. v. Armacost, 311 Md. 64, 81 , 532 A.2d 1056, 1064 (1987). See also, e.g., Dep’t of Natural Res. v. Linchester Sand & Gravel Corp., 274 Md. 211, 220 , 334 A.2d 514, 521 (1975) (“[T]he separation of powers concept may constitutionally encompass a sensible degree of elasticity and should not be applied with doctrinaire rigor”); Baltimore v. State, 15 Md. 376, 459 (1860) (“In considering the question as to the separation of the departments, we are to bear in mind that the Declaration of Rights is not to be construed by itself, according to its literal meaning; * * * entire practical separation was not designed”); 1 F. Cooper, State Administrative Law 15 (1965) (“[T]he doctrine of separation of powers does not forbid the exercise by one department of powers that could appropriately be exercised by another department ... there may be a ‘blending’ of disparate powers”). Notwithstanding our acknowledgment that the separation of powers doctrine does not impose, in every circumstance, a complete separation between the three branches of this State’s government, we have also made clear that the “constitutionally ‘elasticity’ [of the doctrine] cannot be stretched to a point where, in effect, there no longer exists a separation of governmental power, as the Maryland Constitution does not permit a merger of the three branches____” Schisler v. State, 394 Md. at 576 , 907 A.2d at 208 , quoting Linchester Sand & Gravel Corp., 274 Md. at 220 , 334 A.2d at 521 ; Lussier v. Maryland Racing Comm’n, 343 Md. 681, 706 , 684 A.2d 804, 816 (1996) (Bell, J., dissenting). This follows the purpose of the doctrine which we have held to be “to preserve[ ] to the one branch of government its essential functions and prohibit[] any other branch from interfering with it or usurping those functions[.]” McCulloch, 347 Md. at 283 , 701 A.2d at 104 , quoting O’Hara v. Kovens 92 Md.App. 9, 22-23 , 606 A.2d 286, 292 , cert, denied 328 Md. 93 , 612 A.2d 1316 (1992) (emphasis and brackets in original). ⁷³³ B. This Court has had several opportunities to consider redistricting matters, albeit pertaining to the legislative redistricting of the entire State.

While the case sub judice concerns the redistricting of local county districts, it is our view that the same principles which apply to legislative redistricting apply with equal force here; the purpose of both is the same, i.e. to reflect the changes and shifts in a particular jurisdiction’s population. We stated in In re Legislative Districting of the State, 370 Md. 312, 319 , 805 A.2d 292, 296 (2002), heeding the rationale underlying the “one-person, one-vote” standard, 22 enunciated by the Supreme Court in the landmark decision in Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962); see also Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964) and Gray v. Sanders, 372 U.S. 368 , 83 S.Ct. 801 , 9 L.Ed.2d 821 (1963), that “a fairly apportioned legislature lies at the very heart of representative democracy.” As such, it is imperative that the rights of the State’s citizenry are particularly protected when it comes to the drawing of districts lines. ⁷³⁴ See Maryland Comm. for Fair Representation v. Tawes, 229 Md. 406, 411-12 , 184 A.2d 715, 717-18 (1962) (recognizing that political subdivisions are particularly critical taking into account the governance structure of the State of Maryland); see also Hughes v. Maryland Comm. for Fair Representation, 241 Md. 471, 498-509 , 217 A.2d 273, 289-295 (Barnes, J., dissenting), cert, denied, 384 U.S. 950 , 86 S.Ct. 1569 , 16 L.Ed.2d 547 (1966); Legislative Redistricting Cases, 331 Md. 574, 619-24 , 629 A.2d 646, 669-71 (1993) (Eldridge, J., dissenting); see generally, Matthew P. Andrews, History of Maryland 617 (1929) (“In the matter of representation Maryland has been likened to a ‘confederacy of counties,’ or a federated republic-the counties and the City of Baltimore ... being comparable to the states in the federal Union”); Theodore J. Maher, State-County Relations in Maryland 312-19 (1971) (discussing the importance of county governments within the organization of the State). We have opined that the drawing of such lines is an “intensely political process;” 23 however, due to the constitutional standards that govern the process and the redistricting plan which generally results from it, the process is also a legal one. 24 In re Legislative Districting, 370 Md. at 320 , 805 A.2d ⁷³⁵ at 296. Although this Court is charged, “upon petition of any registered voter,” to review a given redistricting plan to insure that it conforms with constitutional requirements and to grant the appropriate relief, i.e. the promulgation and adoption of our own plan, 25 if the plan does not, it is well settled that the ⁷³⁶ redistricting of a territory is primarily, and ultimately, a legislative function.

See In re Legislative Districting, 370 Md. at 326 , 805 A.2d at 300 (“[I]t is the responsibility of ... the Legislature ultimately, if it chooses to act, to draw the legislative districts. [If a redistricting plan] meets constitutional muster, [it] will not be, indeed, cannot be, second guessed by the Court”); In re Legislative Districting, 299 Md. 658, 688 , 475 A.2d 428, 443 (1984) (“Essentially, the districting process is a political exercise for determination by the legislature and not the judiciary ....”); see also LaPorte County Republican Cent. Comm. v. Bd. of Comm’rs of County of LaPorte, 43 F.3d 1126 , 1130 (7th Cir.1994) (“[P]olitical decisions [should] be left in the main to the political (elected) branches of government rather than to the judiciary, even when the political decisions affect elections”). While the legislature is charged with the crafting of the plan itself, it is our responsibility, as prescribed by Article III, § 5 of the Maryland Constitution and as final arbiter, to review its constitutionality. When a redistricting plan that has been adopted, either by the Governor or the Legislature, is challenged, our inquiry begins by first looking at the plan on its face and taking into consideration whether, in light of the specific challenges, both federal and state legal requirements have been met.

In In re Legislative Districting, we articulated the process: “When, from the petitions and the answers alone, we perceive deviations that do not appear to be permissible, but for which there may be some explanation that could serve to justify them, we have appointed a special master, thus affording the State and the petitioners the opportunity to present evidence and argument to supply that explanation. Following those proceedings, if we conclude that the deviations are within a permissible range or for a permissible ⁷³⁷ purpose, we have approved the plan. On the other hand, if we are satisfied that, despite the proffered explanation, the deviations are constitutionally impermissible, we have but one choice: declare the plan unconstitutional and void.” 370 Md. at 322 , 805 A.2d at 298 . To be sure, it is not this Court’s charge to hold merely that a redistricting plan is invalid.

If an adopted plan does not pass constitutional muster and is declared void, the Maryland Constitution requires us to do more-we must provide a remedy. There is no one remedy that is imposed in such cases, instead we evaluate the circumstance of each one on a case-by-case basis. When there is time to return the matter to the other political branches, giving them the opportunity to produce an amended, or even a new, plan, we have done so. When, however, there is the urgency of an upcoming election, we have chosen to fashion and adopt the redistricting plan ourselves. y.

Keeping in mind the above principles, we turn now to the merits of the case sub judice. The appellees rely on Article 8 of the Declaration of Rights of the Maryland Constitution, P.L.L. § 3-101 and CJP § 3-409 to support their position. We are not persuaded that any one, or a combination, of those authorities, imbued the Circuit Court with the power or authority to approve the Consent Order. Indeed, a stronger argument, a dispositive one, has been made, by the appellants in this case, that the Consent Order cannot be upheld on constitutional or statutory grounds.

The appellees urge this Court to accept that the General Assembly’s inaction, in essence, compelled the Circuit Court to act, and effectively, if inadvertently, conferred on that court some semblance of authority to do so. This Court has held that “Article 8 [of the Declaration of Rights] prohibits the courts from performing non-judicial functions,” Consolidated Const. Servs., Inc. v. Simpson, 372 Md. 434, 449 , 813 A.2d 260, 269 (2002), quoting Shell Oil Co. v. Supervisor of ⁷³⁸ Assessments of Prince George’s County, 276 Md. 36, 46 , 343 A.2d 521, 527 (1975); Sugarloaf Citizens Ass’n, Inc. v. Gudis, 319 Md. 558, 569 , 573 A.2d 1325, 1331 (1990). See also Duffy v. Conaway, 295 Md. 242, 254 , 455 A.2d 955, 961 (1983) (“[A] court has no jurisdiction to perform a nonjudicial function____”).

More specifically, we have stated that the “[t]he judicial department ha[s] no jurisdiction or right to interfere with the legislative process which was committed by the constitution ... to the Legislature itself.” Maryland-Nat’l Capital Park & Planning Comm’n v. Randall, 209 Md. 18, 25 , 120 A.2d 195, 199 (1956). It is clear that the provisions of the Consent Order agreeing “to conduct the 2006 election of five (5) members of the Carroll County Board of Commissioners by district rather than at large,” and adopting “the December 2005 recommendation of the Districting Committee also known as Option No. 2, and plac[ing] the said adopted recommendation for Carroll County Commissioner districts in place for the 2006 election by determination of the Carroll County Board of Eleetions[,]” go beyond the functions of the judiciary, and, indeed interfere with the Legislature’s authority to redistrict. In issuing its Order, the Circuit Court assumed a role that, in fact, constitutionally belongs to the legislative and executive departments of our government. Article III, § 28 of the Maryland Constitution provides, in pertinent part, that “[n]o bill ... shall become a Law unless it be passed in each House by a majority of the whole number of members elected____” As previously discussed, House Bill 491 passed the House of Delegates, but failed to pass the Senate.

Thus, there is no legislation at all to serve as the basis for the Consent Agreement. In Watkins v. Watkins, 2 Md. 341 (1852), this Court was faced with a similar situation. In that case, our predecessors were asked to issue a writ of mandamus compelling the incumbent Adjutant General to deliver all materials germane to the office to the petitioner, who was his presumed and designated, though not confirmed, successor. Article 9, § 2 of the 1851 Maryland Constitution, applicable to the office of Adjutant General, provided that, “the Adjutant General shall be appointed by the Governor, by and with the ⁷³⁹ consent of the senate.... ” The petitioner was nominated by the Governor, but the petitioner did not receive the consent of the senate, as it failed to complete action on the nomination before the adjournment of the Legislature.

The Court rejected the petitioner’s argument that he was entitled to succeed to, and hold, the office and held, instead, that, as prescribed by the Constitution, absent the concurrence of both the Governor and the senate, the incumbent Adjutant General would continue his commission. The Court opined: “[W]e have only to observe, that in all human contrivances confidence must be reposed somewhere, and that under the distribution of the powers of government in our State, it is not given to the judiciary to compel action on the part of a co-ordinate branch of the government. Its authority is confined to restraining the potency of its enactments when they transcend constitutional limits.” 2 Md. at 355 (emphasis in original). More than a century later, this Court, once again, had the opportunity to address the separation of powers between the judiciary and the Legislature.

In Planning v. Randall, supra, House Bill 505 was enacted by the General Assembly, but was subsequently vetoed by the Governor. Before the bill was returned to the House in which it originated for further action-it was thought that the bill would be passed over the Governor’s veto-, an appeal was brought asking the Court to decide various questions of law pertaining to the bill. This Court, pointing out that legislative action had not been completed, stated, “[cjertainly the Bill has not been enacted. ... It could hardly be contended that after one House had passed a bill the courts could enjoin the submission of that bill to the other House on the allegation that the bill as passed by one House was unconstitutional or unlawful.” 209 Md. at 26-27 , 120 A.2d at 199 (emphasis in original).

Accordingly, the Court dismissed the suit, holding that it lacked jurisdiction. Our sister states are in accord. In Goodland v. Zimmerman, 243 Wis. 459 , 10 N.W.2d 180 (1943), the court was asked to enjoin the Secretary of State from publishing an act enact ⁷⁴⁰ ed by the Legislature. As prescribed by the Constitution of Wisconsin, a bill does not become effective as law until it is published.

Thus, the Court declared: ‘We are here dealing with a bill that has not yet become a law. There is no such thing known to the law as an