In re 2012 Legislative Districting of the State
BELL, C.J., (Retired). The right to formal political representation is fundamental to our state and national democracies. In the second year following each Federal decennial census, the Maryland Constitution provides that the Governor and State Legislature shall reapportion the State’s legislative representation consistent with the State’s current demographics. To protect the Federal and State legal rights that may be affected by this process, the Maryland Constitution also provides that the citizens of Maryland have the right to challenge this legislative apportionment scheme in this Court.
In the present case, we are called upon to consider the validity of Maryland’s most recently enacted legislative apportionment plan against three such challenges. I. A. Once every ten years, following each United States Census, Article III, § 5 of the Maryland Constitution 1 requires that 127 the State’s 47 Legislative Districts (also referred to as “Senate Districts”) be reapportioned. Under this provision, the Governor’s mandate is to formulate a new legislative apportionment plan in conformance with the requirements of Article III, §§ 2, 2 3, 3 and 4 4 . Once the legislative apportionment plan is drafted, the Governor must submit the plan to both the President of the Senate and the Speaker of the House of Delegates, who then must introduce the Governor’s plan as a Joint Resolution by the first day of the Legislature’s regular session in the second year following the decennial United States census.
Unless the General Assembly adopts an alter 128 native legislative apportionment plan by the forty-fifth day of that legislative session, the Governor’s plan becomes law. This Court has original jurisdiction to consider any challenges to the legal validity of the legislative apportionment plan. Md. Const. Art. Ill, § 5.
If the Enacted Plan fails legal scrutiny under the Maryland Constitution, the United States Constitution, or other controlling law, this Court shall deem the plan invalid and provide appropriate relief. Id. In March 2011, following the receipt of the 2010 census data for Maryland, the Governor convened a five member committee, the Governor’s Redistricting Advisory Committee (“GRAC”), to draft and recommend, after holding public hearings and accepting public comment, a plan for the redistricting of the State’s Congressional and Legislative Districts. 5 The GRAC held 12 public hearings during the summer of 2011 and, on December 16, 2011, published its plan for the apportionment of the State’s 47 Legislative Districts. Following receipt of the GRAC committee’s recommendations, the Governor presented a legislative apportionment plan to the Senate President and House Speaker, who introduced it in their respective Houses as Senate Joint Resolution 1 and House Joint Resolution 1.
The Governor’s plan became law on February 24, 2012 as revisions to Maryland Code (1984, 2004 Repl. Vol.) §§ 2-201 and 2-202 of the State Government Article. The Attorney General, in anticipation of challenges being filed to the newly enacted plan, on March 2, 2012, filed a motion requesting this Court to issue an order promulgating the procedures to be followed in filing and considering any such challenges to the enacted legislative apportionment plan. On March 6, 2012, in response to the Attorney General’s 129 motion, we issued an order prescribing the schedule for filing challenges: any registered voter of the State who sought to challenge the Enacted Plan had to file a petition with the Clerk of the Court of Appeals no later than May 1, 2012, and the State’s response and any amicus curiae briefs had to be filed no later than May 31, 2012.
The order also appointed retired Court of Appeals Judge Alan M. Wilner as the Court’s Special Master to conduct any required hearings. The following petitions, among others, 6 challenging the Enacted Plan were filed: 1. Petition of Delores Kelley and James Bochin; 2. Petition of Christopher Eric Bouchat; 3.
Petition of Cynthia Houser, et al. On September 5, 2012, the Special Master held a hearing in accordance with the procedures promulgated by this Court. At the hearing, expert reports and other evidence were admitted without objection. After the hearing, the Special Master issued his recommendation that the enacted legislative apportionment plan be upheld against each of the challenges. Each party filed exceptions, as to which this Court held oral argument.
Following oral argument, we issued the following order: WHEREAS, pursuant to the provisions of Sec. 5 of Article III of the Constitution of Maryland, the Governor’s legislative districting plan, introduced as House Joint Resolution No. 1 and Senate Joint Resolution No. 1, became effective on February 24, 2012, and WHEREAS, the Office of the Attorney General having filed a motion to promulgate procedures to govern any petitions brought under Article III, Sec. 5 of the Constitution of Maryland, and 130 WHEREAS, challenges to the validity of the legislative districting plan having been filed and an evidentiary hearing having been held before a Special Master appointed by this Court, and WHEREAS, oral arguments on the challenging petitions and exceptions to the report of the Special Master having been held before this Court on November 7, 2012, and WHEREAS, the Court having determined that the Governor’s plan is consistent with the requirements of the Constitution of the United States and the Constitution of Maryland, it is this 9th day of November, 2012, ORDERED, for reasons to be stated later in a written opinion, that the relief sought by Petitioners in these actions is denied. In the Matter of 2012 Legislative Districting of the State, 429 Md. 301 , 55 A.3d 713 (2012). We now provide a de novo review of the Special Master’s legal conclusions, and our reasons in support of the preceding order. B. We begin with a review of the applicable law common to each challenge, and the factual context in which the petitioners’ challenges reached this Court.
Federal constitutional restraints on State legislative apportionment arise principally from the Fourteenth Amendment Equal Protection Clause in the so-called “one person, one vote” doctrine enunciated in Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), and further iterated by this Court in its redistricting jurisprudence: In re Legislative Districting of State, 370 Md. 312 , 805 A.2d 292 (2002); Legislative Redistricting Cases, 331 Md. 574 , 629 A.2d 646 (1993); In re Legislative Districting, 299 Md. 658 , 475 A.2d 428 (1984); In re Legislative Districting, 271 Md. 320 , 317 A.2d 477 (1974). Under this rule, Maryland Senate Districts, single-member Delegate Subdistricts, and two-member Dele 131 gate Subdistricts must be approximately equal to one another in population. See In re Legislative Districting of State, 370 Md. 312, 356 , 805 A.2d 292, 318 ; see also Reynolds, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 ; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 , 84 S.Ct. 1429 , 12 L.Ed.2d 595 (1964). This requirement generally is considered to be prima facie satisfied if the variation in population between any two legislative districts does not exceed 10%.
See In re Legislative Districting of State, 370 Md. 312, 356 , 805 A.2d 292, 318 ; In re Legislative Redistricting Cases, 331 Md. at 592-594 , 629 A.2d at 655-56 . Article III, §§ 2 and 3 of the Maryland Constitution divide the State’s population into 47 Legislative Districts (also referred to as “Senate Districts”). 7 Based on the 2010 census, Maryland had an adjusted population of 5,772,231 residents. 8 Therefore, based on the adjusted population size, equal apportionment among Maryland’s 47 legislative districts translates to 122,813 residents per an ideal Legislative District; 40,938 residents per an ideal equally apportioned single-member Delegate Subdistrict; and 81,875 per an ideal equally apportioned two-member Delegate Subdistrict. Beyond the “one person, one vote” principle, intentional and invidious ethnic discrimination in legislative apportionment is repugnant to the United States Constitution under both the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 509 132 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993).
Legislative apportionment plans that effectively disenfranchise or abridge the right to vote of any citizen on account of “race or color” are prohibited by § 2 of the Voting Rights Act of 1965 ( 42 U.S.C. § 1973 ). 9 With respect to Maryland law, the provisions that govern the legislative redistricting process were adopted by the Maryland voters in 1970, see Ch. 785 of the Acts of 1970, and 1972; Ch. 363 of the Acts of 1972, when the State Constitution was amended. 10 In addition to the drafting procedures noted 133 above, Article III, § 4 provides: “Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions.” Thus, Article, III § 4 of the Maryland Constitution requires that “[e]ach legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population” and that “[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions.” 11 We have held that an excessive number of border crossings violates Article, III § 4’s due regard requirement, and have described adherence to this provision, along with the applicable Federal law, as “the essential prerequisite of any redistributing plan.” In re Legislative Districting of State, 370 Md. at 321 , 805 A.2d at 297 . Non-compliance with this requirement is only permissible when it conflicts with a superseding Federal law, or a more important State constitutional requirement. Id. at 353-54 , 805 A.2d at 316 .
We have further explained that: “This is not to say that, in preparing the redistricting plans, the political branches, the Governor and General Assembly, may consider only the stated constitutional factors. On the contrary, because, in their hands, the process is in part a political one, they may consider countless other factors, including broad political and narrow partisan ones, and they may pursue a wide range of objectives. Thus, so long as the plan does not contravene the constitutional criteria, that it may have been formulated in an attempt to preserve communities of interest, to promote regionalism, to help or injure incumbents or political parties, or to achieve other social or political objectives, will not affect its validity. 134 “On the other hand, notwithstanding that there is 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 — those non-constitutional criteria cannot override the constitutional ones. We made this clear in both our 1984 and 1993 decisions.
Specifically, we acknowledged the importance of natural and subdivision boundaries and rejected the argument that such things as the promotion of regionalism and the protection of nonofficial communities of interest could overcome that requirement. The Legislature apparently understood and acquiesced in that ruling, as no attempt was made in the intervening decades to amend the Constitution and, thereby, include those or any other factors in the constitutional framework.” In re Legislative Districting of State, 370 Md. at 321-22 , 805 A.2d at 297 . Thus, despite the aforementioned restrictions, we have recognized that the political branches, the Governor and General Assembly, are given a wide-berth in formulating a legislative apportionment scheme. So long as the plan they devise does not violate State or Federal law, the political branches may pursue a wide variety of objectives, including preserving community interests, promoting of regionalism, and aiding political allies or injuring political rivals.
Id. Because Article III, § 4 of Maryland Constitution was only ratified in 1972 and the Legislature only reapportions itself once every ten years, this Court has only on four prior occasions considered the constitutional propriety of a legislative apportionment plan under the requirements of Article III, § 4 — In re Legislative Districting of State, 370 Md. 312 , 805 A.2d 292 (2002); Legislative Redistricting Cases, 331 Md. 574 , 629 A.2d 646 (1993); In re Legislative Districting, 299 Md. 658 , 475 A.2d 428 (1984); In re Legislative Districting, 271 Md. 320 , 317 A.2d 477 (1974). Only in two of those opinions, Legislative Redistricting Cases, 331 Md. 574 , 629 A.2d 646 (1993), and In re Legislative Districting of State, 370 Md. 312 , 135 805 A.2d 292 (2002), did we provide substantive analysis of the due regard requirement. Under the 1992 redistricting plan, there were a total of 18 multi-county crossings statewide, five more than existed under the 1982 plan.
See Legislative Redistricting Cases, 331 Md. at 613-14 , 629 A.2d at 666-67 . Baltimore County was involved in seven of them, five were shared with Baltimore City, and one each shared with Harford County and Howard County. See id. at 613 , 629 A.2d at 665 . Although the Court sustained the plan against a due regard challenge under Article III, § 4 of the Maryland Constitution, the Court warned that the plan came “perilously close” to violating the due regard requirement because of the relatively high number of border crossings.
Id. at 614, 629 A.2d at 666 . The 2002 Enacted Plan increased the number of border crossings from 18 to 22. In In re Legislative Districting of State, 370 Md. 312 , 805 A.2d 292 (2002), we considered the constitutional validity of that plan. We specifically addressed the question of whether a constitutional requirement, such as the Article III, § 4’s due regard requirement, could be subordinated to non-constitutionally mandated justifications.
See id. at 370, 805 A.2d at 326 . The State argued that the due regard requirement could be subordinated to such non-constitutional justifications. See id. at 366 , 805 A.2d at 324 . We disagreed, holding that constitutional requirements, such as the due regard requirement, are mandatory requirements.
Id. at 356 , 805 A.2d at 318 . As such, the due regard requirement, we said, cannot be subordinated to justifications not mandated by the Federal or State Constitutions. Id. at 371-72 , 805 A.2d at 327-28 . We concluded that the plan contained an excessive number of political subdivision crossings that could not be constitutionally justified.
Id. at 368 , 805 A.2d at 325 . We concluded from this that the plan violated Article III, § 4’s requirement that “[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions,” and was, therefore, constitutionally deficient. Id. at 374, 805 A.2d at 328 . Due to the then pending 2002 election, there was insufficient time for the Court to return the plan for 136 correction to the General Assembly.
We therefore created a districting plan in compliance with State and Federal law that paid no deference to the ordinarily permissible political considerations. Id. at 323 , 805 A.2d at 298 . 12 Our legislative apportionment plan reduced the number of political subdivision crossings from 22 under the Governor’s 2002 plan to 14, all of which were required to achieve substantial population equality, and eliminated all multi-county districts between Baltimore County and Baltimore City. Baltimore County, based on the 2000 Census, had an adjusted population of 754,292, five legislative districts entirely within the county, and two shared districts with Carroll, Harford, and Howard Counties, respectively. Baltimore City, which, based on the 2000 Census, had an adjusted population of 651,154, received six legislative districts all entirely inside of its city limits.
In the decade between the 2000 Census and the 2010 Census, the adjusted population of Baltimore City fell from 651,154 to 624,054, while the adjusted population of Baltimore County increased from 754,292 to 807,053. The adjusted population of the State according to the 2010 census, as indicated, was 5,772,231, so that an equal distribution of population across each of the 47 legislative districts, an “ideal” district (a district representing l/47th of eligible voters) would contain approximately 122,813 people. The population of Baltimore City, at an adjusted population of 624,054, would, therefore, equal and thus justify, roughly 5.1 “ideal” legislative 137 districts. Baltimore County, at an adjusted population of 807,053, would, therefore, equal and thus justify, roughly 6.5 ideal legislative districts.
Although Baltimore City’s population equals little more than five ideal legislative districts, the 2012 Enacted Plan assigns six legislative districts to Baltimore City. Five of these districts exist entirely within Baltimore City. 13 The remaining legislative district, District 44, 14 crosses into Baltimore County, and is the basis for several of the challenges to the Enacted Plan. 15 These challengers, as do all challengers to a legislative reapportionment plan, carry the burden of demonstrating the law’s invalidity. See In re Legislative Districting of State, 370 Md. at 336 , 805 A.2d at 306 . Once, however, a proper challenge under Article III, § 4 is made and is supported by “compelling evidence,” the State has the burden of producing sufficient evidence to show that the districts are contiguous and compact, and that due regard was given to natural and 138 political subdivision boundaries.
Legislative Redistricting Cases, 331 Md. at 613-14 , 629 A.2d at 666 .
II
On April 26, 2012, the petitioner, Christopher Eric Bouchat filed, pro se, a “Motion to Declare Maryland General Assembly Joint Resolution No. 1, 2012 Unconstitutional & Hence Null and Void.” The Special Master treated that pleading as a timely challenge, under Article III, § 5 of the Maryland Constitution, to the Enacted Plan. In his petition, the petitioner proposed that the bicameral scheme prescribed in the Federal Constitution for the organization of the Legislative Branch of the Federal Government similarly applies to the organizational structure of the legislative branches of the various states. Noting that Article I, §§ 2 and 3 of the U.S. Constitution provides for a House of Representatives, that, subject to each State having at least one Representative, must be apportioned among the States according to population, and a Senate consisting of two Senators from each state, he reasons that the Federal Constitution impliedly requires every state legislature to establish an identical structure. Proceeding on this premise, he argues that multi-member districts or districts that cross county lines are strictly prohibited, that each county in Maryland and Baltimore City must have at least one Delegate in the House of Delegates and that the Maryland Senate must consist of two Senators from each county and Baltimore City.
This Court should correct these errors, the petitioner maintains, through its judicial power by: “(1) declaring Article III, § 3 of Maryland Constitution, which permits Maryland’s multi-member House of Delegates, null and void; “(2) declaring Article III, § 2 of the Maryland Constitution null and void; “(3) requiring that all delegates be elected from single-member districts; “(4) prohibiting House of Delegates subdistricts from crossing county lines; and 139 “(5) requiring that each county be entitled to one Delegate and that all other Delegate seats be apportioned according to population.” In addition to Article I, §§ 2 and 3 of the Federal Constitution, the petitioner relies on selected portions of the Federalist Papers, 16 the Fourteenth Amendment’s Privileges and Immunities Clause, the guarantee of Article IV, § 4 of the U.S. Constitution that each State have a republican form of government, Article II, § 1 of the U.S. Constitution, 17 and the Ninth and Tenth Amendments to that Constitution. Responding to the State’s motion that the petition be dismissed without evidentiary hearing as failing to state a cognizable claim, as a matter of law, the Special Master, noting that this Court had not acted to dismiss the petition and that the petitioner participated in the evidentiary hearing, concluded that the Bouchat petition would be determined upon its merits. The Special Master then proceeded to address those merits. His reasoning and recommendation are as follows: “Analysis and Recommendation “Mr. Bouchat’s first argument, that the structure of Congress directed in Article I, §§ 2 and 3 of the U.S. Constitution is a required template for the States, is without merit.
The text of those provisions, by their clear wording, apply only to the structure of Congress and do not purport in any way to control the structure of State legislatures, much less to require a State legislative apportionment that would produce significant population disparities or to require single-member districts that do not cross county lines. Apart 140 from the lack of any such textual requirement, the Supreme Court, in Reynolds v. Sims, supra, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 expressly rejected ‘the applicability of the so-called federal analogy to state legislative apportionment arrangements,’ holding that ‘the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.’ Id. at 572-73 , 84 S.Ct. At [at] 1387, 12 L.Ed.2d at 534-35. “Nor does the guaranty of a republican form of government in Article IV, § 4 of the U.S. Constitution create a Federal Constitutional basis for judicial relief. See Baker v. Carr, 369 U.S. 186, 218-24 , 82 S.Ct. 691, 710-13 , 7 L.Ed.2d 663, 686-89 (1962), where the Supreme Court flatly rejected Article IV, § 4 as a basis for judicial review of a State’s legislative apportionment plan. See also New York v. United States, 505 U.S. 144, 184 , 112 S.Ct. 2408, 2432 , 120 L.Ed.2d 120, 155 (1992). “The Federal Constitution constraints on State legislative districting are those arising from the Equal Protection Clause of the Fourteenth Amendment, the principal one being the ‘one person/one vote’ requirement announced in Reynolds v. Sims, under which, as this Court iterated in Matter of Legislative Districting, supra, 370 Md. at 325 , 805 A.2d at 299 , “the states are required to apportion both houses of their legislatures on an equal population basis, to assure that one citizen’s vote is approximately equal in weight to that of every other citizen.” (Emphasis added). “In light of the State’s current demographic distribution, the supervening Constitutional requirement of substantially equal population in both Senate Districts and Delegate Subdistricts absolutely precludes any apportionment scheme under which each county would be entitled to two (or any other equal number of) Senators.
Under such a scheme, Kent County, with an adjusted population of 20,266, and Montgomery County, with an adjusted population of 972,-338, would each be entitled to two Senators, giving each 141 resident in Kent County 48 times the voting strength of a resident in Montgomery County. A similar scheme was expressly rejected in Reynolds v. Sims, and as well in the companion case of Maryland Committee for Fair Representation v. Tawes, supra, 377 U.S. 656 , 84 S.Ct. 1429 , 12 L.Ed.2d 595 . “Unless the size of the House of Delegates were to be expanded five to tenfold, any requirement that each county be entitled to one Delegate would be doomed for the same reason. See Maryland Committee, supra. As Article III, §§ 2 and 3 of the Maryland Constitution provide for 141 members of the House of Delegates, to be elected from 47 Legislative Districts, three from each district, and as there is no Federal Constitutional impediment to that provision, the apportionment of the House of Delegates on any basis other than substantial equality of population is impermissible. “Finally, in his petition, Mr. Bouchat contends that multimember Delegate districts are prohibited under Federal Constitutional law and that, to the extent they may be permitted, they may not cross county lines.
Multimember districts, he avers, ‘institute voting inequality upon the populous,’ and combining parts of two or more counties in a single district ‘caus[es] a minority county section to be disenfranchised by the majority county portion of the district.’ He offers no facts to show that any particular multimember or multi-county district has produced that effect, however, other than noting generally that since the Civil War, with limited exceptions, the Democratic Party has controlled the House of Delegates. “The Supreme Court, on a number of occasions, has expressed concern over certain undesirable features of multimember districts, especially as they may dilute the ability of racial or ethnic minorities in such districts to elect members of their group to legislative office. So far, however, the Court has made clear that such a district is not per se unlawful under the Equal Protection Clause. The clearest expression of the Court’s view is in Whitcomb v. Chavis, 403 142 U.S. 124, 142-43 , 91 S.Ct. 1858, 1868-69 , 29 L.Ed.2d 363, 375-76 (1971): ‘In Lucas v. Colorado General Assembly, 377 U.S. 713 [ 84 S.Ct. 1459 , 12 L.Ed.2d 632 ] (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly withheld any intimation ‘that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective.’ 377 U.S. at 731, n. 21 [ 84 S.Ct. 1459 , 12 L.Ed.2d 632 ], Subsequently, when the validity of the multi-member district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause, [citations omitted]. That voters in multi-member districts vote for and are represented by more legislators than voters in single-member districts has so far not demonstrated an invidious discrimination against the latter.
But we have deemed the validity of multi-member district system justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may ‘operate to minimize or cancel out the voting strength of racial or political elements of the voting population^’] ‘[W]e have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements.’ “See also Thornburg v. Gingles, 478 U.S. 30, 48 , 106 S.Ct. 2752, 2765 , 92 L.Ed.2d 25, 45 (1986); In re Legislative Redistricting [Districting ], supra, 299 Md. at 673 , 475 A.2d at 435 ; Legislative Redistricting Cases, supra, 331 Md. at 606 , 629 A.2d at 662 . “The additional references in Mr. Bouchat’s pre-hearing memorandum to Article I, § 1 of the Federal Constitution (the method of electing the President) and the Ninth and Tenth Amendments are to no avail. He does not explain how the Enacted Plan violates any of the provisions, and none are apparent. 143 “As Mr. Bouchat, who has the burden of production and persuasion on this issue, has failed to show that any multimember district provided for in the Enacted Plan would have the effect of diluting or canceling the voting strength of any racial or political element, he has failed to make a case for declaring any such district unlawful. With respect to the complaint about a multi-member district including parts of more than one county, there is no Federal prohibition against such a district, but is more a matter of compliance with the requirement in Article III, § 4 of the Maryland Constitution that, in the creation of any district or subdistrict, due regard be given to natural and political boundaries. As the Court has made clear, however, if a multi-county district or subdistrict is created in order to gratify some supervening requirements — equivalent population, compliance with the Voting Rights Act — then the ‘due regard’ requirement may be regarded as either yielding or complied with.
It is ‘the most fluid of the constitutional component outlined § 4.’ In re Legislative Districting, supra, 299 Md. at 681 , 475 A.2d at 439 . “For these reasons, it is recommended that Mr. Bouchat’s petition be denied.” (Footnotes omitted) (emphasis in original). The petitioner excepts to the recommendation of the Special Master, arguing that the “one person, one vote” doctrine exists in violation of rights granted under the Fourteenth Amendment and Article IV, § 4 of the United States Constitution. In support of his exception he notes that our government is a democratically elected federalist republic, which protects the voting rights of citizens who live in less populated political sub-divisions through the Electoral College and the balance of representation in the U.S. Senate. Without clear or detailed explication, he argues that, under the Fourteenth Amendment, “voting rights” must be uniform whether in the federal or state system.
In addition to his general exception to the Special Master’s recommendation, the petitioner specifically argues that the Special Master failed to address adequately the purported impropriety of having multi-member 144 districts with varying numbers of Delegates. He argues, again without clear explication, that this apportionment structure violates every premise of the “one person, one vote” principle and, in addition, offends the Fourteenth Amendment and Article IV, § 4 of the United States Constitution. We conclude that the petitioner has not met the required burden to properly challenge the Enacted Plan. The petitioner’s challenge is not supported, as required under Article III, § 4, by “compelling evidence,” “demonstrat[ing] that the plan has subordinated mandatory constitutional requirements to substantial improper alternative considerations.” Matter of Legislative Districting, 370 Md. at 373 , 805 A.2d at 328 .
Accordingly, the petitioner’s exceptions to the Special Master’s findings and recommendations are without merit and we, therefore, adopt the Special Master’s recommendation to deny the Bouchat petition.
III
A. The petitioners, Delores Kelley and James Brochin, are registered voters and incumbent members of the Maryland Senate from Baltimore County. 18 They claim that the Enacted Plan violates Article III, § 4’s requirement that “[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions” (also referred to as the “due regard requirement”). This is so, they contend, because the Enacted Plan contains a border crossing between political subdivisions, Baltimore City and Baltimore County, not required by law and allegedly constructed for the purpose of retaining six state senators in Baltimore City. The petitioners alleged in their petition that the reconfiguration of Legislative Districts 10, 42, and 44 in the Enacted Plan violates the due regard requirement of Article III, § 4 of 145 the Maryland Constitution. They argued that, because the population of Baltimore City justifies no more than five Legislative Districts, while the population of Baltimore County entitles it to at least six Legislative Districts, neither the border crossing nor the extension of District 44 into Baltimore County was necessary to accomplish either population equality or voting rights protection for any racial or ethnic minority.
For this reason, the petitioners further argued, the effect of the border crossing and extension is to underpopulate the Baltimore City Districts, in order to make it possible that Baltimore City will be able to elect six Senators, rather than five. The petitioners’ request is that this Court hold that the provisions of the Enacted Plan, relating to Baltimore City and Baltimore County, violate the due regard requirement of Article III, § 4, and that this Court create a new map that removes the subdivision crossing between Baltimore City and Baltimore County. The State responded to the petitioners’ challenge with a motion to dismiss and, in the alternative, for favorable summary disposition. It argued, in support of its dispositive motions, that a single crossing between one county into another, such as the one between Baltimore City and Baltimore County in the Enacted Plan, cannot alone determine whether the Enacted Plan satisfies the due regard requirement.
The State asserted, furthermore, that this Court has never determined the legal validity of a reapportionment scheme on the basis of a single border crossing. Instead, the State said this Court’s due regard jurisprudence considers the constitutional validity of a reapportionment plan “holistically,” meaning on a statewide basis. Proceeding on this premise, noting, in that regard, that the petitioners only challenged the validity of the Enacted Plan in one portion of the State, it contended that the petitioners failed to make a valid legal challenge. The State also observed that, because the Enacted Plan contained fewer border crossings, statewide, than earlier legally valid apportionment plans, there cannot exist a violation of the due regard requirement in the present plan. 146 With respect to the merits of the petitioners’ challenge, the State relies on the fact that an additional border crossing was necessary in order for Baltimore County’s citizens to realize the full extent of their franchise.
Thus, it reasoned and argued, that the decision as to where to locate the necessary border crossing is a political choice vested in the political branches, and not in the judiciary. The Special Master agreed with the petitioners, that the population of Baltimore City entitled it to five Senate Districts, and that all of these Districts could be located within the City’s boundary. He observed, however that, achieving that result, would require a reconfiguration of the Legislative Districts in Baltimore City, Baltimore County, and at least one of the counties neighboring Baltimore County. On review of our precedents concerning the due regard requirement, the Special Master rejected the State’s “holistic” approach, finding it to be without legal support, that there is nothing in this Court’s prior decisions from which the State’s assertion, one unjustified border crossing should be disregarded solely because there are fewer total border crossings in the present plan than in an earlier plan that survived constitutional scrutiny, can be justified.
In support of his view, the Special Master noted that, in the 2002 decision, this Court discussed each petition and county crossing individually, and found violations on an individual district-by-district basis. See Matter of Legislative Districting, 370 Md. at 364-65 , 805 A.2d at 323 . Thus, the Special Master, concluding that the critical question at issue in a due regard inquiry is whether a challenged border crossing can be justified as necessary to accomplish a superseding, or equally significant, constitutional requirement, reasoned, “upon the presentation of compelling evidence tending to indicate an unnecessary incursion, the State has the burden of demonstrating compliance with the due regard requirement with respect to that incursion.” No such presentation of compelling evidence was presented in this case, he maintained, however. 147 The Special Master also concluded that the State correctly argued that the decision as to where constitutionally required border crossings should be located is a political one, to which this Court should defer. He explained that the crossing of the boundary was necessary, and without the established proof of evidence of impermissible racial or political discrimination, the choice of where that crossing was to be made was, indeed, political, and appropriately reserved for the Governor and the General Assembly.
For this reason, as well the Special Master recommended that the petitioners’ challenge be denied. In response to the Special Master’s recommendation, the petitioners filed exceptions to the conclusions drawn by the Special Master: that the subdivision crossing between the Baltimore City and Baltimore County line was “necessary,” constitutionally justified pursuant to this Court’s opinion in In re Legislative Districting of State, 370 Md. 312 , 805 A.2d 292 (2002), and that, assuming the crossing was justified, the choice of where that crossing occurs is a wholly political consideration to which this Court must defer. The petitioners argue that the Special Master’s conclusions are contrary to this Court’s 2002 decision and analysis, which point out the distinction between constitutional and non-constitutional considerations. They emphasize our holding in that case that due regard requirements cannot be subordinated to non-constitutional justifications.
See id. at 371 , 805 A.2d at 327 . Accordingly, the petitioners maintain that, because the Enacted Plan’s drafters did not have a constitutional justification for creating a sixth legislative district in Baltimore City and a border crossing between Baltimore County and Baltimore City, other than to retain six (6) Senators in Baltimore City, the Enacted Plan violates Article III, § 4’s due regard requirement. The State also excepted to the Special Master’s recommendation relevant to the Kelly/Brochin petition. 19 Although it 148 agrees with the Special Master that the petitioners’ arguments lack merit, the State takes exception to the rationale the Special Master offers to support his conclusion. That reasoning is, as it sees it, a departure from Maryland precedent governing the burden of proof in legislative apportionment cases.
It maintains, as it did in its dispositive motion, that a single border crossing cannot be the basis for an Article III, § 4 challenge; only an excessive total number of political subdivision crossings statewide would suffice as the basis for a challenge arising under that section’s due regard requirement. For reasons discussed below, we also conclude, as the Special Master did, that petitioners’ arguments are without merit, but also decline to adopt the reasoning offered by the State. B. The State’s argument requires an analysis of the nature of the due regard requirement and, if accepted, will preclude all substantive challenges to it except those whose reach is statewide. Thus, we shall first consider whether the due regard inquiry is limited in its scope to only the total number of political subdivision crossings statewide, before reaching the issue of whether the Enacted Plan satisfies Article III, § 4’s due regard requirement.
The State’s position is that the petitioners have failed to state a claim, or present a meritorious argument, under Article III, § 4’s due regard requirement. It believes that a single border crossing, contained in a legislative districting 149 plan, cannot be dispositive of the question of whether that districting plan satisfies the due regard mandate. The State relies on our cases, Legislative Redistricting Cases, 331 Md. 574 , 629 A.2d 646 (1993), and In re Legislative Districting of State, 370 Md. 312 , 805 A.2d 292 (2002), for support, arguing that each of these cases tested the validity of an apportionment scheme under the due regard provisions using an holistic approach. Because, according to the State, the disposition of those cases depended primarily upon the total number of border crossings statewide, a challenge may not be brought properly under the due regard provision for border crossings located only within a particular region of the State, or where a plan contains fewer total statewide border crossings than the number of crossings contained in an earlier constitutionally valid enacted plan.
To the State, this holistic approach implies that the due regard inquiry is a numerical inquiry, strictly concerned with the statewide total number of political subdivision crossings in the plan under review, as compared to past plans. The State points out that the Enacted Plan has one fewer total statewide border crossings than the previous plan, promulgated by the Court, and that the petitioners’ challenge pertains only to the single subdivision crossing between Baltimore County and Baltimore City. The State further insists that legislative redistricting is a fundamentally political process, as to which the holistic approach it advocates provides clear guidance to the political branches, and prevents judicial encroachment upon the redistricting powers committed by the Maryland Constitution to the political branches. Any alternative conclusion, it maintains, ensures future scrutiny from this Court, effectively perpetually placing the judicial branch inside of what is essentially a political process.
We agree with the State that Article III, § 5 of the Maryland Constitution commits to the political branches, the Governor and State Legislature, the task of formulating a legislative apportionment plan. See In re Legislative Districting of State, 370 Md. at 320-21 , 805 A.2d at 296-97 . Indeed, 150 we have held that the political branches are the primary actors in Maryland’s legislative reapportionment process. Id.
We also understand that, because of this constitutional commitment, as a matter of the separation of powers, political officials may legally pursue a wide variety of political aims in creating a legislative re-apportionment plan. See id. at 321-22 , 805 A.2d at 297 (noting permissible political aims, such as the preservation of communities of interest, promotion of regionalism, and helping or injuring incumbents or political parties). We recognize, as the Supreme Court also does, that when political officials create a legislative apportionment design, politics are fundamental to the process and the result. See id. at 354 , 805 A.2d at 316 -17 (citing Gaffney v. Cummings, 412 U.S. 735, 753 , 93 S.Ct. 2321, 2331 , 37 L.Ed.2d 298, 312 (1973)).
In our 2002 redistricting opinion, we quoted Gaffney , observing that “ ‘[pjolitics and political considerations are inseparable from districting and apportionment____The reality is that districting inevitably has and is intended to have substantial political consequences.’ ” Id. (quoting Gaffney, 412 U.S. at 753 , 93 S.Ct. at 2331 , 37 L.Ed.2d at 312 ). Among those consequences, the political branches are accorded, by law, a great degree of discretion to pursue political considerations in formulating a redistricting plan. In re Legislative Districting, 299 Md. at 685 , 475 A.2d at 442 (explaining that the mere fact that political considerations enter the result or process of legislative reapportionment does not render a legislative redistricting plan unconstitutional).
The political branches, however, do not have the authority to contravene constitutional requirements. See In re Legislative Districting of State, 370 Md. at 353-54 , 805 A.2d at 316 . 20 151 Article III, § 5, the very same provision that commits to the political branches its role in devising a legislative apportionment plan, delegates to the judicial branch the power to review the legislative redistricting plan. We explained in In re Legislative Districting of State, 370 Md. 312 , 805 A.2d 292 (2002), our role in the process: “Article III, § 5 of the Maryland Constitution expressly entrusts to this Court the responsibility, upon proper petition, to review the constitutionality of districting plans prepared and enacted by the political branches of government and the duty to provide appropriate relief when the plans are determined to violate the United States and Maryland Constitutions or other laws. In other words, it is this Court’s duty to enforce adherence to the constitutional requirements and to declare a redistricting plan that does not comply with those standards unconstitutional.
Noncompliance with a state constitutional requirement is permitted only when it conflicts with a federal requirement or another more important Maryland constitutional requirement.” Id. at 353-54, 805 A.2d at 316 . Therefore, if the Legislature enacts a reapportionment plan which fails to meet a State or Federal constitutional requirement, this Court is required by its Constitution to strike down the unconstitutional plan. So, although the process of formulating and enacting a redistricting plan is essentially political, it is the judicial function to uphold the requirements of the United States Constitution and the Maryland Constitution. Violations of the redistricting requirements contained in Article III, § 4 of the Maryland 152 Constitution, such as the due regard requirement at issue here, are no exception to this obligation. 21 The State’s argument that a valid challenge to the due regard provision must demonstrate that the total number of border crossings statewide is excessive is without merit.
A necessary component of this holistic approach is the State’s suggestion that, so long as an apportionment plan contains fewer border crossings than an earlier legally valid plan, it is immune from all attacks arising from the due regard requirement. As a result, the legislative districting requirements set out in Article III, § 4 could only be considered on a statewide basis, meaning that constitutional violations are permissible, so long as the effects of those violations are not widely shared by the public. The right to judicial review, however, is not dependent upon a potential constitutional violation being widely shared; the right exists even when the violation is limited to one region of the state, and even when an earlier plan contained more crossings than the plan under review. We have explained that the due regard provision acts to preserve local interests through the “fixed and known features which enable voters to maintain an orientation to their own territorial areas.” In re Legislative Districting, 299 Md. at 681 , 475 A.2d at 439 .
We have similarly observed that the due regard provision works to preserve local political interests, insofar as it ensures geographically concurrent political representation, and acts as a deterrent to the gerrymandering of legislative districts. See In re Legislative Redistricting Cases, 331 Md. at 612 , 629 A.2d at 665 . As such, the very application of the holistic approach would frustrate the purposes of the due regard requirement by denying a remedy to citizens that are directly affected by a constitutional violation because other citizens, the majority, across the state are unaffected. In addition, this approach would directly contradict our responsi 153 bility under Article III, § 5 to provide appropriate relief upon a properly made challenge where the Enacted Plan violates the legislative redistricting requirements contained in the Maryland Constitution.
The holistic approach is also incompatible with the notion that each case will be decided upon its own unique facts. This notion is particularly important in the context of legislative apportionment, because the essential purpose of legislative reapportionment is to recalibrate political representation to the constantly shifting demographics of the State. Due to the shifts in population that may occur from decade to decade, what may be a constitutional necessity at the time one plan is enacted may no longer be a constitutional necessity by the time the next plan is enacted. Conversely, what may be constitutionally impermissible at the time one plan is adopted may be legally valid in the context of a future case.
We understand, and share, the State’s desire for clarity in this fundamentally important area of law. The reality, however, is that judgment in this area of law depends upon facts that are ever changing: population growth, movement, and decline. For this reason, each legislative districting plan, and the validity of a challenge to it, must be based upon the unique facts of that particular case. In other words, what may have been a permissible total number of subdivision crossings in 1992, 2002, or any of our past cases is neither controlling nor necessarily relevant to the disposition of the case subjudice or any future case.
This, of course, does not mean that past cases are irrelevant, simply that each case must be considered within the context of its own facts. The holistic approach is also not supported by our precedents. In the more than 40 years since the ratification of the legislative redistricting amendments in 1970 and 1972, we have never held that constitutional violations must occur on a statewide basis in order for individual petitioners to proceed upon an otherwise properly made challenge. The Special Master’s analysis makes this point most clearly: “Contrary to the State’s belief, its ‘holistic’ argument finds no support whatever in the Court’s redistricting jurispru 154 dence.
It is true that in the 2002 decision, the Court did comment on the number of incursions throughout the State, noting that the Governor’s plan then before it had increased the number of shared Legislative Districts from 18 to 22 and concluding that there was an excessive number of political subdivision crossings that could not be justified. The Court was responding to the fact that there were 14 petitions filed in that case raising ‘due regard’ issues with respect to Legislative Districts in every part of the State. The Court examined each challenge individually, however, and it found violations on an individual basis. “The gross number of incursions Statewide, standing alone, would have been meaningless had the State been able to show that each of the individual incursions was necessary to achieve population equality or to avoid a violation of the Voting Rights Act. The whole plan was struck down because that showing had not been made — the individual incursions were impermissible and were so pervasive and inter-connected that it was impossible to correct them in a surgical fashion.
There is nothing in that decision, or any other, supporting the argument that one unjustified incursion should, or must, be overlooked simply because there were fewer total incursions than in the previous plan.” Lastly, what this Court may consider in testing the validity of an Enacted Plan under the Article III, § 4 legislative districting requirements is not an open question for the State to address. In Matter of Legislative Districting of State, 299 Md. 658, 688 , 475 A.2d 428, 443 (1984), we outlined precisely what this Court would take into account in a constitutional compliance inquiry. In the context of discussing the compactness requirement, contained in Article III, § 4, we explained the nature of the redistricting process and what the Court must consider when reviewing a properly made challenge: “Essentially, the districting process is a political exercise for determination by the legislature and not the judiciary; the function of the courts is limited to assessing whether the principles underlying the compactness and other constitu 155 tional requirements have been fairly considered and applied in view of all relevant considerations.” Id. at 688, 475 A.2d at 443 (emphasis added). We take from that holding that the due regard inquiry is not a count of the total number of border crossings, but an inquiry into any facts probative of constitutional compliance or conflict.
The total number of crossings statewide is merely one fact, among several, that may be considered. Accordingly, we hold that, because Article III, § 5 provides for any eligible citizen to have his constitutional rights vindicated in court, a single constitutionally unjustified border crossing is relevant to whether the challenged plan either complies, or conflicts, with the due regard requirement. C. Emphasizing that this Court, in the last round of redistricting, held that a crossing between Baltimore County and Baltimore City was unnecessary, In re Legislative Districting of State, 370 Md. at 370 , 805 A.2d at 326 , and, therefore, violated the due regard clause of Article III, § 4, the petitioners argue that the present situation is not substantially different, that the 2010 Census reveals that, because Baltimore City’s population did not entitle it to an additional Legislative District, the Enacted Plan also violates the due regard requirement. They submit that, with respect to the crossing between Baltimore City and Baltimore County, insofar as achieving district population equality is concerned, it benefits only Baltimore City, whose five (5) Legislative Districts could have been contained entirely within the City, as it under-populates Baltimore City districts, which permits greater representation to be given to the City.
They request that this Court deem the Enacted Plan invalid under the due regard requirement and draft a new plan, redistricting Baltimore City into five legislative districts, all contained within Baltimore City, and redrawing the Baltimore County districts. The Fourteenth Amendment to the Federal Constitution requires that legislative districts be substantially equal in 156 population. Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964). This principle, generally referred to as “one person, one vote,” applies to every level of the U.S. Government.
See DuBois v. College Park, 293 Md. 676, 680 , 447 A.2d 838, 840 (1982); Montgomery County Council v. Garrott, 243 Md. 634, 639 , 222 A.2d 164, 165 (1966). If a county’s adjusted population cannot justify an additional Legislative District, substantially equal in population to all others within the State, a political subdivision crossing will be necessary in order to achieve substantial equality in population. In this situation, the due regard requirement is subordinated to the Fourteenth Amendment requirement of substantially equal population across legislative districts. See In re Legislative Districting of the State, 370 Md. 312, 370 , 805 A.2d 292, 326 (2002) (explaining that the due regard must yield to other constitutional requirements or federal requirements where they conflict); In re Legislative Redistricting Cases, 331 Md. 574, 615 , 629 A.2d 646, 667 (1993) (holding same).
The fact that Baltimore City’s population equaled approximately 5.1 ideal legislative districts and did not justify an additional legislative district to achieve population equality is a fact to be considered within the totality of all the facts and circumstances of the case. In that regard, it is true that population equality in Baltimore City could be achieved without creating an additional legislative district of which the City and the County were a part. On the other hand, another fact that must be considered is that Baltimore County did require the creation of an additional legislative district in order to achieve population equality. As we have seen, under the Fourteenth Amendment, the standard for substantial equality across legislative districts is a population variance no greater than 10% between the most populous district and the least populous district.
Voinovich v. Quilter, 507 U.S. 146, 161 , 113 S.Ct. 1149, 1159 , 122 L.Ed.2d 500, 516 (1993); Brown v. Thomson, 462 U.S. 835, 842-843 , 103 S.Ct. 2690, 2696 , 77 L.Ed.2d 214, 222 (1983). As we have explained above, the ideal district size for the State of Maryland, based on its 2010 Census adjusted population, is 122,813 people. Therefore, the 157 largest constitutionally permissible variation, varying by no more than 5% from the ideal district size, and assuming no other constitutional impediment, would be 128,953 22 people and the smallest constitutionally permissible variation, 116,-673. Accordingly, if Baltimore County were divided into six legislative districts of the largest permissible variation, more than 30,000 23 people would be left without a district.
Consequently, to satisfy equal protection principles and provide complete political representation to the citizens of Baltimore County, an additional Legislative District was needed. That could only be accomplished by establishing a multi-county district. We conclude that, because a crossing into Baltimore County from another political subdivision was constitutionally required to provide representation to all of Baltimore County’s citizens, the Enacted Plan did not violate the due regard requirement. The petitioners nevertheless contend that preference should have been given to avoiding a border crossing with a major subdivision like Baltimore City, and, thus, that the plan’s drafters should have looked elsewhere to make the crossing.
They assert that the reason for this particular crossing was to provide Baltimore City with a sixth legislative district, and, therefore, a sixth senator. For support, they cite a newspaper article, in which one senator stated that a sixth district was placed in Baltimore City to keep six senators in the city. On the other hand, at oral argument, the State offered that the crossing was created in order to preserve the community of interest of an African-American population that resides along the Baltimore City/Baltimore County boundary. In addition, as noted by the GRAC, reconfiguration of the Baltimore City/Baltimore County districts served to unite the Pikesville 158 community in one district and keep Towson together in one subdistrict. 24 Regardless of the parties’ competing explanations as to the reason that the plan’s drafters included the subdivision crossing, it is clear from the facts contained in the record that the crossing between Baltimore City and Baltimore County served a constitutional purpose and, therefore, did not violate the due regard requirement.
Irrespective of the argument that it may have been “better” for the plan’s drafters to have made another political subdivision the subject of the border crossing, or that the plan’s drafters could, and should, have avoided under-populating districts in the City and over-populating districts in the County in favor of more compact districts in Baltimore County and another County, a subdivision crossing was clearly necessary to achieve substantial population equality under the Fourteenth Amendment. Where that crossing should have been placed is not for this Court to determine. The decision as to how the districts are drawn is quintessentially a political one, which requires judicial deference to be given to the political branches. In our 2002 decision, we observed: “To be sure, it is the responsibility of the Governor, initially, and the Legislature ultimately, if it chooses to act, to draw the legislative districts.
Fulfillment of that responsibility involves the exercise of discretion in the balancing of the various constitutional requirements, as well as other considerations, to the extent they do not undermine the requirements. And because the process is partly a political one, entrusted to the political branches, political considerations and judgments may be, and often are, brought to bear as this balance is struck. Such considerations and judgments, as reflected in a districting plan that meets constitutional muster, will not be, indeed, cannot be, second guessed by the Court.” 159 In re Legislative Districting of State, 370 Md. at 369 , 805 A.2d at 326 . This Court’s role, therefore, is limited to determining whether the legislative apportionment plan complies with the applicable constitutional principles.
It is not the Court’s role to determine how a legislative apportionment plan best may embody the ideals supporting those principles. In the absence of evidence of invidious, impermissible discrimination, the choice of where the Baltimore 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. The petitioners have not demonstrated “compelling evidence” that the border crossing between Baltimore City and Baltimore County violated the requirements of Article III, § 4 of the Maryland Constitution.
IV
The petition of Cynthia Houser, et al., in Miscellaneous No. 5, challenged the Enacted Plan on behalf of 22 registered voters from 12 Legislative Districts, encompassing Frederick, Carroll, Howard, Baltimore, Prince George’s, Calvert, Charles, Kent, Queen Anne’s, and Caroline Counties. The petitioners argued that the Enacted Plan violates the Equal Protection Clause of the Fourteenth Amendment, and the equal protection principles to which Article 24 of the Maryland Declaration of Rights relates, 25 because the plan contains impermissible racial and political discrimination. They argue, in the alterna 160 five, that the Enacted Plan violates Section 2 of the Federal Voting Rights Act of 1965 because it is the product of impermissible discrimination based on population density, region, partisanship, and race. 26 The petitioners also allege that the Enacted Plan violates the due regard and compactness requirements set forth in Article III of the Maryland Constitution. The Special Master found that each of the petitioners’ claims was without merit.
We have addressed the substance of the petitioners’ argument pertaining to the due regard requirement in part III of this opinion. As to the petitioners’ remaining challenges, we agree with the conclusions of the Special Master and, therefore, overrule the petitioners’ exceptions. A. The petitioners’ challenge is to the alleged impermissible racial and political discrimination contained in the Enacted Plan, in violation of Article 24 of the Maryland Declaration of Rights and the Equal Protection Clause of the Fourteenth 161 Amendment. In particular, the petitioners characterized the Enacted Plan’s intent, in violation of both Federal and State equal protection requirements, as follows: “(1) its intent was to punish Republicans and reward Democrats, (2) it was designed to allow areas of the State with the slowest growth to maintain their hold on power, (3) it discriminates against persons in the rural areas of the State by overpopulating districts in those areas and underpopulating districts in the urban areas, and (4) it is racially discriminatory by underpopulating nearly all African-American districts.” In support of these characterizations, their petition averred that the Enacted Plan’s maximum deviation of 9.41%, having been achieved by overpopulating Republican and rural districts, while underpopulating the African American majority and more urban districts, is unnecessarily large, and thus violate the “one person, one vote” principle.
More particularly, they offered examples: that 39 of the 42 districts that voted for the Republican candidate for President and Governor are overpopulated, 25 by more than 4%; that twelve of the sixteen majority African American districts are underpopulated, with the majority of them being by a deviation of more than 4%; 27 that 10 of the 15 more urban areas of Montgomery and Prince George’s Counties and all six Baltimore City House districts are underpopulated, with five by more than 4%; that all seven of the faster growing, rural Southern Maryland Counties and the seven Eastern Shore districts are overpopulated by as much as 4%. In addition, the petition alleged that the Enacted Plan did not allocate to African-Americans the number of seats their population merited and that Maryland has a history of polarized voting. With respect to their claim under Article III, § 4 of the Maryland Constitution, the petitioners alleged that “[t]he En 162 acted Plan contains 17 Senate Districts and 32 House Districts that are split between county lines for reasons unrelated to compliance with supervening Federal law or Maryland Constitutional requirements.” The petitioners also noted the availability of alternative districting maps “that contain fewer districts that cross local government lines and were compact in form.” The petitioners’ Voting Rights Act challenge specifically alleged that, considered in light of the minority population per county and its projected proportional representation, 28 the Enacted Plan manifests invidious discriminatory intent in that it fails to “afford [the petitioners] an equal opportunity to participate in the political process, and to elect political representatives of their choice, and denies [the petitioners] the right to vote in elections without distinction of race, color or previous condition of servitude in violation of 42 U.S.C. § 1973 .” Furthermore, they urge, by use of multi-member districts, the Enacted Plan “discriminates against African Americans because it dilutes the ability of African Americans to select their candidates of choice.” The petitioners requested that the Enacted Plan be declared invalid, that this Court adopt an alternative plan — either the plan introduced in the House of Delegates by Delegates Hough and Alston or a “Coherent County Map” devised by the petitioners — and that attorneys’ fees be awarded pursuant to 42 U.S.C. § 1983 . The State’s answer to the petition requested dismissal of the petitioners’ claims or favorable summary disposition as a matter of law.
It contended, as to the Declaration of Rights argument, that Article 24 has never been construed to impose a population equality requirement for legislative redistricting. The State further contended that, in any event, maximum population variances between districts of less than 10% are a safe harbor and, therefore, do not give rise to either a Federal 163 or State population equality claim. Moreover, the State argued, the only requirements for population equality under State law is the “substantially equal population” requirements of Article III, § 4 of the Constitution, and that the complaint failed to allege a violation of that requirement. The State also denied that the Enacted Plan was the product of, or reflected, any deliberate or intentional discrimination, and asserted that, in fact, all district lines and population deviations were produced in response to appropriate and legitimate considerations.
Indeed, it posited that in order for the petitioners to allege racial gerrymandering, in the absence of any evidence of intentional discrimination, they must show that race was the sole, or at least the predominate, factor in drawing the district lines, a showing that the petitioners failed to make. With respect to the merits of the petitioners’ Voting Rights Act claim, the State maintained that the Act, by its own terms, does not guarantee that members of a protected class will be able to elect representatives in numbers equal to their proportion in the population and, indeed, that the States are not obligated by § 2 of the Act to create the maximum possible number of majority-minority districts. In order to establish a § 2 violation, the State submits, the petitioners must first satisfy three threshold factors: (1) the racial group must be “sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) the group must be “politically cohesive”; and (3) the white majority must “vot[e] sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.” Thornburg v. Gingles, 478 U.S. 30, 50-51 , 106 S.Ct. 2752, 2766-67 , 92 L.Ed.2d 25, 46-47 (1986). See League of United Latin Am.
Citizens v. Perry, 548 U.S. 399, 425-26 , 126 S.Ct. 2594, 2614 , 165 L.Ed.2d 609, 635-36 (2006) (denominating these factors as the “Gingles ” factors, after the case in which they were articulated). Only when all three conditions have been satisfied must the Court then consider the totality of the circumstances to determine whether members of a racial group have less opportunity than do other members of the 164 electorate to elect representatives of their choice. Because the petitioners failed to establish the threshold criteria, the State concluded that the petitioners lacked standing to challenge the Enacted Plan under § 2, having only a vote dilution claim with respect to the district in which they lived. As he did with respect to the other challenges to the Enacted Plan, the Special Master did not rule on the State’s dispositive motions, but instead considered the petition on its merits.
With respect to the “one person, one vote” equal protection issue, agreeing with the petitioners, the Special Master concluded that, rather than a safe harbor, the “ T0% rule’ merely establishes a basis for assuming prima facie validity or invalidity and thus acts ... as a burden of proof mechanism with respect to the “one person, one vote” equal protection issue.” 29 He observed that the relevant case authorities do not require the State to explain a maximum deviation under 10% unless the challenger can demonstrate that the deviation was “deliberately created in furtherance of intentional impermissible racial, political, or regional discrimination, but that, if such evidence is produced, the plan is not immune from judicial inquiry.” (Emphasis in original). Having examined evidence that the petitioners offered to establish the various discriminations they alleged, 30 the Special Master found nothing in the record to indicate any intent on the part of the drafters of the Enacted Plan to discriminate deliberately or that would support an inference of deliberate discrimination based on region, partisanship, or race. The Special Master found, instead, that the Enacted Plan itself increased the number of majority African-American districts, 165 and included, for the first time in Maryland’s history, the creation of a single-member Hispanic district. Accordingly, the Special Master determined that the petitioners failed to meet their burden of showing impermissible regional, political, or racial discrimination sufficient to rebut the presumption of validity attaching to the Enacted Plan and, thus, that they are entitled to judicial relief.
Regarding § 2 of the Voting Rights Act, the Special Master agreed with the State’s contention that “the mere allegation that it is possible to draw a plan that meets all redistricting requirements and has more African American districts than the Enacted Plan ... does not establish a violation of the Voting Rights Act[.]” Upon a review of the pertinent authorities and the evidence submitted by the petitioners, 31 the Special Master concluded that, to establish a violation of § 2 of the Voting Rights Act, the petitioners were required to show not only that more minority districts could have been created, but that the additional districts created would satisfy the three Gingles factors that the State argued in its submissions. Because the petitioners failed to make such a showing, the Special Master found no merit to their Voting Rights Act claim. The State filed exceptions to the Special Master’s opinion. Although it agrees with the Special Master that the Enacted Plan satisfies the constitutional requirements that legislative districts be substantially equal in proportion, it disagrees with the Special Master’s reasoning.
The State submits that it was unnecessary for the Special Master to consider “whether a legislative redistricting plan could ever be invalidated for lack of population equality where, as in this case, the plan satisfies what the Supreme Court and this Court have established as ‘the 10% rule,’ ” believing that threshold to be a “safe haven.” For this proposition, the State relies on our 1993 redistricting 166 decision. In our 1993 opinion, after acknowledging that the maximum deviation of the Governor’s plan was less than 10%, we stated: “[Tjherefore, under the plain language of the Supreme Court’s rulings, it satisfies the federal constitutional requirement of “one person, one vote”. The population disparities in the Governor’s plan are sufficiently minor so as not to require justification by the State.” Legislative Redistricting Cases, 331 Md. 574, 594-95 , 629 A.2d 646, 656 (1993). Consequently, despite our recognition in that case that, “[Tjhere may be room under Reynolds [v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964) ] and its progeny for a plaintiff to overcome the ’10% rule’ if the plaintiff can present compelling evidence that the drafters of the plan ignored all the legitimate reasons for population disparities and created the deviations solely to benefit certain regions at the expense of others,” id. at 597 , 629 A.2d at 657 (emphasis omitted), and, in a footnote, that to do so “would be difficult,” id. at 597 n. 17, 629 A.2d at 657 n. 17, the State argues that this Court should not address this question.
The State also relies on its conclusion that Larios, a federal district court decision holding unconstitutional a legislative redistricting plan with less than a 10% deviation, because it found that the plan was “not supported by legitimate [State] interests,” but was “tainted by arbitrariness or discrimination,” Larios v. Cox, 300 F.Supp.2d 1320, 1338 (N.D.Ga.2004), aff'd, 542 U.S. 947 , 124 S.Ct. 2806 , 159 L.Ed.2d 831 (2004), is nonprecedential. The State notes that Larios was summarily affirmed by the Supreme Court without opinion, Cox v. Larios, 542 U.S. 947 , 124 S.Ct. 2806 , 159 L.Ed.2d 831 (2004), which affirms only the judgment and not the rationale. Alternatively, the State argues that, even if it were possible for a population equality claim to overcome the State’s satisfaction of the 10% rule, the petitioners have not established the deliberate and purposeful discriminatory intent that is required to invalidate a redistricting map. Accordingly, the State requests this Court to reject in their entirety the claims asserted in the Houser petition. 167 Unsurprisingly, the petitioners do not agree with the Special Master’s opinion, and request that his recommendations be rejected in their entirety with respect to their challenge.
They ask, in addition, that this Court grant them the relief they requested with respect to all claims. The petitioners offer four exceptions to the Special Master’s conclusions. First, the petitioners argue that the Special Master gave “inordinate and undue weight to the Latios court’s quotations of Georgia legislators and map drawers in describing Georgia’s redistricting plan,” and, thus, in effect, erred in concluding that deliberate discriminatory intent on the part of the drafters of the Enacted Plan, necessary to the proof of an intentional discrimination claim under the Fourteenth Amendment, must be established by direct evidence. In support of this exception, the petitioners note that Supreme Court precedent, more specifically, e.g., Roman v. Sincock, 377 U.S. 695, 710 , 84 S.Ct. 1449, 1458 , 12 L.Ed.2d 620, 630 (1964), and Brown v. Thomson, 462 U.S. 835, 843-44 , 103 S.Ct. 2690, 2696-97 , 77 L.Ed.2d 214, 222-23 (1983), have permitted indirect evidence to be used to prove discrimination under the Fourteenth Amendment.
The petitioners also complain that the Special Master’s findings of fact contradict Laiños, the case on which their claim largely depends. Second, the petitioners assert that the Special Master miscategorized the nature of the petitioners’ claim. As they see it, the Special Master concluded that the petitioners’ claim was one of partisan gerrymandering, as to which they failed to produce sufficient supporting evidence, rather than a “one person, one vote” claim. Noting that the gravamen of the latter “is the dilution of the vote for some individuals while others are strengthened, thus devaluing one person’s vote and strengthening another person’s vote[,].... [while a] partisan gerrymandering claim ... seeks to prove that the dominant party has intentionally precluded the opposing party a certain number of seats,” the petitioners maintain that, by relying on Shaw v. Reno, 509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) and Vieth v. Jubelirer, 541 U.S. 267 , 124 S.Ct. 1769 , 158 L.Ed.2d 546 (2004), both partisan political gerrymandering 168 cases, the Special Master misapplied Supreme Court precedent and required a showing of discriminatory and partisan intent on the part of the drafters of the Enacted Plan, a showing not required to establish a “one person, one vote” violation.
They argue that, under the proper Supreme Court precedent, i.e. Roman v. Sincock, 377 U.S. 695 , 84 S.Ct. 1449 , 12 L.Ed.2d 620 (1964), they properly alleged and proved an unconstitutional vote dilution. As part of this exception, the petitioners lament the fact that the Special Master accepted the analysis of the State’s expert, Dr. Cain, that a district’s partisan composition is best determined by reference to that district’s voter registrations. Acknowledging that “the Supreme Court has considered the method both Dr. Cain and the Special Master espouse — the use of voting registration to determine a district’s partisan composition,” they argue that the Supreme Court “has explicitly accepted voting results as the superior method in comparing a district’s partisan composition,” and “has explicitly rejected” that registration is superior to voting results, as the Special Master concluded.
The petitioners next exception is that the Special Master improperly imposed a heightened requirement of specificity in dismissing their due regard claim under Article III, § 4 of the Maryland Constitution. The petitioners argue that the Special Master improperly rejected the findings of Dr. Hofeller, their expert, to the effect that the Enacted Plan did not pay sufficient due regard to county boundaries, because Dr. Hofeller did not indicate the specific border crossings that were objectionable. The petitioners point out that the Special Master did not cite any case law to support the proposition that a due regard claim must plead and prove the presence of a specific impermissible border crossing. Instead, the petitioners maintain that Dr. Hofeller provided evidence demonstrating that certain counties contained impermissible border crossings, and based on that evidence, the petitioners sufficiently challenged specific county borders as unnecessary. 169 Finally, with respect to their Voting Rights Act claims, the petitioners except to the Special Master’s conclusion that their challenge failed to satisfy the necessary threshold Gingles factors.
They argue that the Special Master improperly focused on each of the Gingles factors individually in finding them insufficient to state a claim for a violation of § 2 of the Voting Rights Act. The petitioners assert that when the factors are viewed as a whole, their challenge presented a meritorious claim. B. We shall not address the State’s exception premised on the 10% rule purportedly establishing a “safe haven.” In 1993, we did not address the merits of that issue because the petitioners did not establish the deliberate and purposeful discriminatory intent that is required to invalidate a redistricting map under such claims, explaining: “We need not consider this question, because such is not the case here. Petitioners offer no evidence, other than the Governor’s plan itself, that the plan discriminates against certain regions.
While the plan does appear to favor Baltimore City, the petitioners cannot demonstrate that the disparities in the plan did not result from the GRAC’s effort to accommodate legitimate policy concerns in redistricting.” Legislative Redistricting Cases, 331 Md. 574, 597 , 629 A.2d 646, 657 (1993). That is the case here. Turning to the petitioners’ first exception, we address their argument that the Special Master erred in requiring direct evidence to establish deliberate discriminatory intent on the part of the drafters of the Enacted Plan. In Lañas, a three judge district court panel, following a bench trial, concluded, inter alia: 32 170 “Georgia’s state legislative reapportionment plans plainly violate the “one person, one vote” principle embodied in the Equal Protection Clause because each deviates from population equality by a total of 9.98% of the ideal district population and there are no legitimate, consistently applied state policies which justify these population deviations.
Instead, the plans arbitrarily and discriminatorily dilute and debase the weight of certain citizens’ votes by intentionally and systematically underpopulating districts in rural south Georgia and
This is a preview of In re 2012 Legislative Districting of the State. About 50% of the opinion remains. Read the complete opinion in RecordCite.