In Re the Legislative Districting of State

PER CURIAM ORDER WHEREAS, petitions were filed by various registered voters of the State with this Court as authorized by Section 5 of Article III of the Constitution of Maryland challenging the constitutionality of the 1982 Legislative Districting Plan which was approved and became law on February 26, 1982; and WHEREAS, this Court appointed a Special Master to schedule hearings and to submit his findings of fact and conclusions of law to the Court; and WHEREAS, this Court has considered the findings and conclusions of the Special Master, the exceptions filed thereto and the oral arguments of the parties and amici curiae presented in support of their respective positions; now, therefore, it is this 4th day of June, 1982 ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that for reasons to be set forth in an opinion later to be filed, the petitions challenging the 1982 Legislative Districting Plan (House Joint Resolution No. 32) having failed to establish any violations of the federal constitution or the Constitution of Maryland, the exceptions to the Special Master’s report taken by the State be, and they are hereby, sustained and all other exceptions are hereby overruled, and the legislative districts of the State shall be as established in and by House Joint Resolution No. 32; and it is further ORDERED, that pursuant to the provisions of Section 5 of Article III of the Constitution of Maryland, the provi ⁶⁶⁶ sions of Section 9 of Article III of the Constitution shall govern the age, citizenship and residency requirements for election of Senators and Delegates to the General Assembly of Maryland except that for the primary and general elections of 1982, only, any person seeking election as a Senator or Delegate must have resided in the district which he or she seeks to represent not later than July 6, 1982. MURPHY, Chief Judge. This case involves a number of challenges to the constitutionality of Maryland’s Legislative Districting and Apportionment Plan (the Plan), as enacted by House Joint Resolution No. 32 (H.J.R. 32) at the 1982 session of the General Assembly. I Under the Constitution of Maryland, Article III, § 5, the Governor is required, after each federal decennial census, and after public hearings, to prepare a Plan setting forth the boundaries of the legislative districts for electing members of the Senate and House of Delegates.

The Plan is required to conform to the dictates of §§ 2, 3 and 4 of Art. Ill of the Maryland Constitution, which respectively provide: Section 2: “The membership of the Senate shall consist of forty-seven (47) Senators. The membership of the House of Delegates shall consist of one hundred forty-one (141) Delegates.” Section 3: “The State shall be divided by law into legislative districts for the election of members of the Senate and House of Delegates. Each legislative district shall contain one (1) Senator and three (3) Delegates. Nothing herein shall prohibit the subdivision of any one or more of the legislative districts for the purpose of electing members of the House of Delegates into three (3) single-member delegate districts or one (1) single-member delegate district and one (1) multimember delegate district.” ⁶⁶⁷ Section 4: “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.” The Plan is also required to comply with federal constitutional constraints imposed by the equal protection clause of the fourteenth amendment, see Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964), 1 and with the fifteenth amendment, see Gomillion v. Lightfoot, 364 U.S. 339 , 81 S.Ct. 125 , 5 L.Ed.2d 110 (I960). 2 Following completion of the 1980 federal census, Governor Harry Hughes, on April 13, 1981, appointed a five-member Advisory Committee on Reapportionment and Redistricting to assist him in developing a new legislative districting and apportionment plan. 3 The Committee conducted numerous public hearings throughout the State and submitted its recommendations to the Governor on December 8, 1981. Two public hearings were held by the Governor later that month to permit comment on the recommended plan. The Governor thereafter made several changes in the Committee’s proposal, and submitted the Plan to the General Assembly on January 13, 1982; it was introduced as H.J.R. 32 and after legislative hearings were conducted, the resolution was approved by the General Assembly and became ⁶⁶⁸ law on February 26, 1982 pursuant to Art. Ill, § 5 of the Maryland Constitution. 4 Under the provisions of Art. Ill, § 5 of the State Constitution, the Court of Appeals of Maryland is vested with original jurisdiction, upon petition filed by any registered voter, “to review the legislative districting of the State and [to] grant appropriate relief, if it finds that the districting of the State is not consistent with requirements of either the Constitution of the United States of America, or the Constitution of Maryland.” A petition challenging H.J.R. 32 was filed on March 2, 1982, by Montgomery County registered voter and former State Senator, C. Lawrence Wiser, thereby invoking our original jurisdiction. Recognizing the likelihood of additional challenges, and the need for a Special Master to conduct hearings and submit findings of fact and conclusions of law to the Court, we designated the Honorable W. Albert Menchine, a retired Associate Judge of the Court of Special Appeals, to act in that capacity.

By order dated March 5, 1982, we directed that any registered voter who claimed that the 1982 Legislative Districting Plan, or any part thereof, was invalid should “intervene in these proceedings by petition filed ... [by] March 31, 1982 setting forth his objection to said plan and containing the particular part or parts of the plan claimed to be unconstitutional and the factual and legal basis for such claims, and the particular relief sought, including any alternative district configuration suggested or requested by the petitioner.” Ten petitions in all were filed in opposition to H.J.R. 32. The Wiser petition, Misc. No. 2, was consolidated with Misc. No. 5, which was brought by Bruce Goldensohn, Mayor of Gaithersburg, since both petitions challenged the districting of Montgomery County, i.e., Districts 14-20, inclusive.

It was alleged that several of these districts violated the state constitutional requirement of compactness (District 17 being designated as the chief offender). Other principal claims were that H.J.R. 32, as it divided Montgomery Coun ⁶⁶⁹ ty, (1) disregarded “communities of interest,” in violation of the state constitutional requirement of due regard for natural boundaries and political subdivisions; (2) that it violated the equal protection clause by improperly protecting incumbent candidates, all of whom lived in the southern portion of Montgomery County; and (3) that it violated the equal protection clause by diluting the voting strength of residents of the incorporated municipalities of Gaithersburg and Rockville by including both cities in District 17. 5 6 Both petitions provided alternative districting configurations. Miscellaneous No. 3, brought by Carville L. Collins, et al., challenged H.J.R. 32 because of the way in which Howard County was divided. The principal charges were that the Plan (1) violated the requirement of due regard for natural boundaries and the boundaries of political subdivisions by dividing Columbia, a large unincorporated residential-business area of the county in half and by crossing county lines with House of Delegates Subdistricts 4B, 13B and 14B, and (2) that the voting strength of blacks in western Columbia was invidiously diluted, in violation of the equal protection clause.

Miscellaneous No. 4, brought by Richard L. Andrews, was consolidated with two other challenges involving the districting of Baltimore City, Misc. No. 8, filed by Vernon L. Morris, et al., and Misc. No. 9, by Joseph T. Landers, III, et al. Taken together, these petitions alleged (1) that Districts 42 and 44 were unconstitutionally noncompact; (2) that the use of three-member at-large delegate districts invidiously diluted the voting strength of blacks, in violation of the equal protection clauses of the federal and state constitutions; (3) that district lines were intentionally drawn to divide Republicans among several districts, diluting their voting strength in violation of the equal protection clause; ⁶⁷⁰ (4) that the boundary between Districts 47 and 41 did not give due regard to the natural boundary of Frederick Avenue; (5) that the inclusion of the predominantly black Morgan State University community in District 43, which is predominantly white, rather than in District 44, which is racially balanced, invidiously diluted black voting strength and divided a black “community of interest,” in violation of the equal protection clause; and (6) that the lines between Districts 43 and 44 failed to give due regard to natural boundaries. Miscellaneous No. 6, brought by William Rush, related principally to the districting of Baltimore County.

It was the petitioner’s claim that Districts 6 through 9, and particularly District 8, failed to abide by the constitutional requirements of compactness and due regard for natural boundaries or the boundaries of political subdivisions. The petitioner also asserted that H.J.R. 32, as a whole, did not provide for apportionment of substantially equal population, and that the Plan’s enactment was not .preceded by public hearings adequate to satisfy state constitutional requirements. An alternative configuration for districting Baltimore County was submitted with this petition. Miscellaneous No. 7, brought by Sarah Boyd and George M. Nutwell, challenged the manner in which H.J.R. 32 districted the counties in Southern Maryland.

It was contended (1) that Southern Anne Arundel County was severed from the northern portion of the county and combined with all of Calvert and part of St. Mary’s County, in Senatorial District 29, without due regard for natural boundaries and the boundaries of political subdivisions; (2) that District 29 was unconstitutionally noncompact; (3) that the creation of two House single-member districts, 29B and 29C, rather than one two-member delegate district, resulted in population inequalities violative of the equal protection clause, and the state constitutional requirement of apportionment in substantially equal numbers; and (4) that the division of Anne Arundel, Calvert, Charles and St. Mary’s Counties, in creation of Districts 28 and 29 and their respective subdis ⁶⁷¹ tricts, violated requirements of compactness and due regard for natural boundaries and the boundaries of political subdivisions. The petitioners offered an alternative districting configuration which, inter alia, combined Calvert and St. Mary’s Counties into a single district, and reunited southern Anne Arundel County with the rest of that county’s territory. Miscellaneous No. 10, filed by Thomas R. Falcinelli, challenged H.J.R. 32 in its entirety. Two issues were raised, namely, (1) that the use of multimember House delegate districts violated the equal protection clause, and (2) that the hearings held before the Advisory Committee were insufficient to satisfy the constitutional requirement of public hearings precedent to the preparation of the Governor’s plan.

Miscellaneous No. 11, brought by Victor H. Laws, et al. (all members of the Wicomico County Council), challenged the districting of the southern Eastern Shore. Their claims were that the lines between Districts 37 and 38 failed to give due regard to natural boundaries and the boundaries of political subdivisions, and divided constitutionally protected communities of interest in and around the municipality of Salisbury; and that the division of the black community of interest located around Salisbury was invidious and violative of the equal protection clause. These petitioners sought a single district comprised solely of Wicomico and Worcester Counties, and the combining of all of Somerset and Dorchester Counties with parts of Talbot and Caroline Counties. Pursuant to our order of March 5, 1982, the State filed timely answers to the petitions, evidence was taken by the Special Master on April 14, 1982, and he heard oral arguments on April 28, 1982.

The Special Master, in a detailed and thorough report to the Court, found no merit in any of the petitions except Misc. No. 9, as to which he concluded that Baltimore City District 44 violated the compactness requirement of § 4 of Art. Ill of the Maryland Constitution. ⁶⁷² In his report, the Master proposed alterations to Districts 43 and 44 which he believed would remedy the asserted constitutional defect in District 44. Exceptions were taken both by the State and the petitioners to the Special Master’s report, as to which we heard oral argument on June 1, 1982. By per curiam order dated June 4, 1982, a majority of the Court concurring, we concluded for reasons to be set forth in an opinion later to be filed, that none of the petitions established any violations of the state or federal constitutions.

We therefore sustained the State’s exceptions to the Special Master’s report and overruled all other exceptions. Accordingly, we concluded in the per curiam order that “the legislative districts of the State shall be as established in and by Joint House Resolution No. 32.” We now give our reasons for so holding. II A brief review of fundamental state and federal constitutional principles governing the legislative districting and apportionment process is prerequisite to a proper understanding of our disposition of the various contentions raised by the parties. The equal protection clause of the fourteenth amendment requires that the seats in both houses of a bicameral state legislature be apportioned on a substantially equal population basis; this cardinal principle is the sine qua non of fair representation, assuring that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.

Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964); Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656 , 84 S.Ct. 1429 , 12 L.Ed.2d 595 (1964). Of course, state legislative districts may be substantially equal in population and still be in violation of the fourteenth amendment because of invidious discrimination against racial or ethnic minorities in the apportionment process. White v. Regester, 412 U.S. 755 , 93 S.Ct. 2332 , 37 L.Ed.2d 314 (1973); Whitcomb v. ⁶⁷³ Chavis, 408 U.S. 124 , 91 S.Ct. 1858 , 29 L.Ed.2d 363 (1971). It is, however, a basic principle of federal constitutional law that only if the discrimination is purposeful can there be a violation of the equal protection clause.

Mobile v. Bolden, 446 U.S. 55 , 100 S.Ct. 1490 , 64 L.Ed.2d 47 (1980); Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976); Hornbeck v. Somerset Co. Bd. of Educ., 295 Md. 597 , 458 A.2d 758 (1983). Thus, a claim of unconstitutional dilution of racial or ethnic voting strength requires proof that the challenged plan has an intentionally discriminatory effect; it is not enough to show that those allegedly discriminated against have not obtained legislative representation in proportion to their numbers. Mobile v. Bolden, supra; White v. Regester, supra. In other words, it must be shown that the disputed districting plan was conceived or operated as a purposeful device to further racial or ethnic discrimination.

Mobile v. Bolden, supra; Whitcomb v. Chavis, supra. 6 A multimember legislative district is not per se unconstitutional under the equal protection clause. Burns v. Richardson, 384 U.S. 73 , 86 S.Ct. 1286 , 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433 , 85 S.Ct. 498 , 13 L.Ed.2d 401 (1965). However, such legislative apportionments may violate the fourteenth amendment if their purpose were invidiously to minimize or cancel the voting potential of racial or ethnic minorities. Mobile v. Bolden, supra; White v. Weiser, 412 U.S. 783 , 93 S.Ct. 2348 , 37 L.Ed.2d 335 (1973); White v. Regester, supra.

To prove such an illegal purpose requires more than a mere showing that the group allegedly discriminated against has not elected representatives in proportion to their numbers. Mobile v. Bolden, supra, 446 U.S. at 66 , 100 S.Ct. at 1499 . Nor does legislative districting to minimize contests between incumbents establish per se invidiousness in violation of the ⁶⁷⁴ fourteenth amendment. White v. Weiser, supra; Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321 , 37 L.Ed.2d 298 (1973); Davenport v. Apportionment Comm’n, 65 N.J. 125 , 319 A.2d 718 (1974).

Neither does the drawing of legislative districts in such a manner as to intentionally enhance the chances for election of nonwhite representatives constitute a per se violation of the equal protection clause. United Jewish Organizations v. Carey, 430 U.S. 144 , 97 S.Ct. 996 , 51 L.Ed.2d 229 (1977). Similarly, an intentional effort to district so as to create a balance between two primary partisan political parties does not violate the fourteenth amendment. Gaffney v. Cummings, supra.

While the “overriding objective” in state legislative districting is substantial equality of population among the various districts, Reynolds v. Sims, supra, 377 U.S. at 579, 84 S.Ct. at 1390 , the Supreme Court recognized in that case that other valid considerations, which do not significantly impair equality of apportionment, may be taken into account in the districting and apportionment of state legislative bodies. It said: “A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.

Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multimember or floterial districts.” Id. at 578-579 , 84 S.Ct. at 1390 (footnotes omitted). Consistent with these principles from Reynolds , § 3 of Article III of the Maryland Constitution, as already observed, permits both single-member and multi-member delegate districts; and § 4 directs that legislative districts ⁶⁷⁵ “shall consist of adjoining territory, be compact in form, ... of substantially equal population [and] [d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions.” 7 Of these constitutional requirements, that which mandates that legislative districts consist of adjoining territory (i.e. contiguity) and be compact in form have been considered by other states having similar provisions in their constitutions. These courts have held that the contiguity and compactness requirements, and particularly the latter, are intended to prevent political gerrymandering. 8 See, e.g., Schrage v. State Board of Elections, 88 Ill.2d 87 , 58 Ill.Dec. 451 , 430 N.E.2d 483 (1981); Preisler v. Doherty, 365 Mo. 460 , 284 S.W.2d 427 (1955); Schneider v. Rockefeller, 31 N.Y.2d 420 , 340 N.Y.S.2d 889 , 293 N.E.2d 67 (1972); Opinion to the Governor, 101 R.I. 203 , 221 A.2d 799 (1966). The contiguity requirement mandates that there be no ⁶⁷⁶ division between one part of a district’s territory and the rest of the district; in other words, contiguous territory is territory touching, adjoining and connected, as distinguished from territory separated by other territory.

See, e.g., Schneider; supra; In re Sherrill, 188 N.Y. 185 , 81 N.E. 124 (1907). On the other hand, the ideal of compactness, in geometric terms, is a circle, with the perimeter of a district equidistant from its center. See, e.g., Schwartz-berg, Reapportionment, Gerrymanders and the Notion of “Compactness,” 50 Minn.L.Rev. 443 (1966); Roeck, Measuring Compactness as a Requirement of Legislative Apportionment, 5 Midwest J.Pol.Sci. 70 (1961). With the possible exception of Colorado, however (see Acker v. Love, 178 Colo. 175 , 496 P.2d 75 (1972)), no jurisdiction has defined or applied the compactness requirement in geometric terms.

On the contrary, most jurisdictions have concluded that the constitutional compactness requirement, in a state legislative redistricting context, is a relative rather than an absolute standard. People v. Thompson, 155 Ill. 451 , 40 N.E. 307 , decided in 1895, was the first case to discuss compactness authoritatively under a state constitutional provision requiring contiguous and compact districts apportioned on a population basis. 9 The court there eschewed adopting a standard dictionary definition of the word “compact” as meaning “dense,” “pressed together,” or “close, near to a common center,” 40 N.E. at 315 . It recognized that the most compact district territorially would be a circular plane, every point on the boundary of whieh would be equidistant from the center; and that the next most compact district would be a square. Id.

The court held, however, that “anything like close approximation to perfect compactness of territory, in the sense of equal nearness of its points to a ⁶⁷⁷ common center, could not have been meant.” Id. After noting that the compactness provision, in application, was affected and influenced by the requirement of equality in population among the various districts, the court concluded that, as used in the Illinois Constitution, the term “compact” meant “closely united, territorially.” Id. Later Illinois cases have adhered closely to the principles of Thompson. See Schrage v. State Board of Elections, 88 Ill.2d 87 , 58 Ill.Dec. 451 , 430 N.E.2d 483 (1981); People ex rel.

Scott v. Grivetti, 50 Ill.2d 156 , 277 N.E.2d 881 (1972); People ex rel. Heffernan v. Carlock, 198 Ill. 150 , 65 N.E. 109 (1902). While other cases are generally in accord with Thompson , some have expanded or enlarged upon its rationale. In Opinion to the Governor, 101 R.I. 203 , 221 A.2d 799 (1966), the court said that the term “compact” has no precise or exact meaning within the context of that state’s constitutional provision requiring that legislative districts be “as compact in territory as possible.” Instead, the court held that the term had reference to a principle, rather than to a definition, and had meaning “only within an appropriate factual context.” 221 A.2d at 802 .

Referring to Rhode Island’s irregular boundaries, its bays, inlets, islands, rivers, lakes and other geographical features, and to the overriding requirement that districts be comprised of substantially equal population, the court said that the compactness requirement did not mean that the state had to be divided into districts comprised of circular planes or squares. Id. The compactness requirement, the court explained, is an anti-gerrymandering safeguard to provide the electorate with effective representation, rather than with a design to establish an orderly and symmetrical pattern of electoral districts; it was proper, therefore, to consider natural, historical and geographical boundaries, as well as political lines, in drawing districts so long as the purpose was not to achieve a political gerrymander prohibited by the compactness provision. Id.

Virtually the same views were expressed in Schneider v. Rockefeller, 31 N.Y.2d 420 , 340 N.Y.S.2d 889 , 293 N.E.2d 67 ⁶⁷⁸ (1972). Within the context of New York’s constitutional provision that districts be compact in form, the court said that the requirement was a “practical” one, without a precise meaning. 340 N.Y.S.2d at 896 , 293 N.E.2d at 72 . The compactness requirement, the court said, must be interpreted and applied so as to accommodate the overriding goal of equality of population among the various districts; and it did not violate the constitutional compactness mandate to take account of existing political subdivision lines, topography, the irregularity of state and municipal boundaries, means of transportation and lines of communication. Id. 10 Commonwealth ex rel.

Specter v. Levin, 448 Pa. 1 , 293 A.2d 15 (1972), in interpreting Pennsylvania’s constitutional compactness requirement, concluded “that there is a certain degree of unavoidable noncompactness in any apportionment scheme.” 293 A.2d at 23 . The court recognized that the paramount objective of achieving substantial equality of population, the unevenness of population densities within the state, and efforts to maintain the integrity of boundaries of political subdivisions, ordinarily result in the drawing of districts that are not models of geometric compactness. An odd shaped district is not, therefore, necessarily a reliable sign of a political gerrymander, the court said; rather, the compactness of legislative districts must be evaluated objectively and with allowance for the elements of unavoidable noncompactness for reasons similar to those outlined in Opinion to the Governor and Schneider, supra. 11 Preisler v. Kirkpatrick, 528 S.W.2d 422 (Mo.1975), also recognized that a degree of unavoidable noncompactness ⁶⁷⁹ would be present in some apportionment schemes because of uneven population densities, the need for population equality among districts, and the desire to preserve natural boundaries; and that consequently district lines might not be aesthetically pleasing models of geometric compactness. Id. at 426 . 12 The court in Davenport v. Apportionment Comm’n, 65 N.J. 125 , 319 A.2d 718 (1974), described compactness as an “elusive concept,” one of limited utility in view of the overriding goal of substantial equality of population, and the irregularity and odd configurations of the state’s boundaries and the boundaries of its political subdivisions. 13 A more precise definition of compactness was attempted in Acker v. Love, 178 Colo. 175 , 496 P.2d 75 (1972), involving a state constitutional requirement that districts be “as compact in area as possible.” The court said that, as used in the Colorado Constitution, compactness was concerned with “a geographic area whose boundaries are as nearly equidistant as possible from the geographic center of the area being considered, allowing for variances caused by population density and distribution, census enumeration districts, and reasonable variations necessitated by natural boundaries and by county lines.” Id., 496 P.2d at 76 .

In a later Colorado case, In re Interrogatories by Gen’l Assembly, 178 Colo. 311 , 497 P.2d 1024 (1972), the court held that there had been “substantial compliance” with the compactness requirement where consideration was given to the “geography of the state, population concentrations and their location, the various sizes and shapes of census enu ⁶⁸⁰ meration districts, and the absence of census blocks in many instances, plus the various sizes and shapes of counties, all [of which] militate against one particular or ideal solution to the reapportionment problem.” 497 P.2d at 1025 . The cases generally recognize that the compactness requirement is subservient, in application, to the dominant federal constitutional requirement of substantial equality of population among districts. 14 See, e.g., Schneider, Davenport, Barrett and Grivetti , all supra. As indicated, the cases also recognize that the compactness requirement must be applied in light of, and in harmony with, the other legitimate constraints which interact with and operate upon the constitutional mandate that districts be compact in form. Thus, it cannot ordinarily be determined by a mere visual examination of an electoral map whether the compactness requirement has been violated, Specter, Richardson and Dowling, all supra, although in some instances involving districts of extremely irregular size or shape a glance at the districting map may permit the conclusion that a district is not constitutionally compact.

See Schrage, supra. The cases hold that compliance with the state constitutional compactness requirement is mandatory; indeed, a number of jurisdictions have found legislative districts to be unconstitutional for failure to observe the compactness standard. See, e.g., In re Legislative Districting of Gen’l Assembly, 193 N.W.2d 784 (Iowa 1972); Acker, Thompson, Barrett, and Preisler v. Doherty, all supra. On the other hand, the cases also recognize that it is not for the judiciary to determine whether a more compact district could have been drawn than that under challenge; the court’s province is solely to determine whether the principles underlying the requirement of compactness of ⁶⁸¹ territory have been considered and properly applied considering all relevant circumstances.

See, e.g., Schneider, Davenport, Opinion to the Governor and Thompson , all supra. The provision of § 4 of Article III of the Maryland Constitution that “[djue regard shall be given to natural boundaries and the boundaries of political subdivisions” is integrally related to the