State Administrative Board of Election Laws v. Calvert

Smith, J., delivered the opinion of the Court. We shall here give our reasons for reversing the decree of a trial court by our per curiam order of August 23, 1974. In so doing, we must present the answers to four questions: (1) the validity of our provision that in a legislative district of more than two counties no county shall have more than one delegate residing in it, a provision applicable by its terms to Legislative District 34, a district of three counties; (2) whether this provision runs counter to the provisions of Maryland Constitution art. Ill, § 9 relative to residence; (3) whether the name of an individual who is the sole candidate from his county for nomination by his party to the House of Delegates in a three-county district must be printed upon the primary election ballot of that party; and (4) whether because of the grant by Constitution art.

Ill, § 5 to this Court of original jurisdiction to review the legislative districting of the State the trial court had jurisdiction to entertain an attack upon the constitutionality of the legislative districting plan. ⁶⁶² i History of the Litigation Appellee, William B. Calvert (Calvert), a candidate for the Democratic nomination for the House of Delegates residing in Cecil County, filed a petition in the Circuit Court for Cecil County on August 9, 1974, in which he challenged that portion of the order of this Court in In re Legislative Districting, 271 Md. 320 , 317 A. 2d 477 (1974), which provided: “(D) In any legislative district which contains more than two counties or parts of more than two counties, and where Delegates are to be elected at large by the voters of the entire district, no county, or part of a county, shall haye more than one Delegate residing in it.” He likewise challenged an application of that order under an opinion of the Attorney General of Maryland issued on July 19, 1974, in which it was concluded that the names of candidates who, by reason of their residence, were unopposed and thus assured of nomination should not be included on the primary election ballot. Named as respondents were the individuals constituting the Board of Supervisors of Elections for Cecil County, the individuals constituting the State Administrative Board of Election Laws, and the State Administrator of Election Laws. Calvert prayed a permanent injunction: “(a) forbidding Respondents from taking any action toward ordering, directing, authorizing, or permitting the preparation or printing of any primary election ballots or ‘Special Instructions’ which [would] advise or instruct the voters of Legislative District 34 that only one resident of Cecil County [might] be nominated for election to the Maryland House of Delegates,” and “(b) directing Respondents to prepare ballots ⁶⁶³ which [would] list all the candidates who [sought] nomination for election to the Maryland House of Delegates from Legislative District 34, and which [would] allow the voters to vote for three (3) candidates for said nomination . . . .” The matter came on for hearing in that court on August 14. The chancellor (Mackey, J.) filed his opinion on August 16.

He ordered that ballots be prepared “which list[ed] all the candidates who [sought] nomination for election to the Maryland House of Delegates from Legislative District 34 and which [would] allow the voters to vote for three (3) candidates for said nomination . . . .” He enjoined the respondents “from taking any action toward ordering, directing, authorizing, or permitting the preparation or printing of any primary election ballots or ‘Special Instructions’ which [would] advise or instruct the voters of Legislative District 34 that only one (1) resident of Cecil County [might] be nominated for election to the Maryland House of Delegates.” The State Administrative Board of Election Laws and the State Administrator of Election Laws noted an appeal to the Court of Special Appeals on August 19. The parties jointly petitioned us for the writ of certiorari. We granted the writ and set the matter for argument on August 23. Pursuant to Constitution art.

Ill, § 5, the Governor of Maryland submitted to the General Assembly his proposals for legislative redistricting. When the General Assembly failed to adopt its own plan for legislative redistricting, the Governor’s plan became law on February 24, 1973. We were thrust into the center of the matter of redistricting by the combination of the adoption by the people of Maryland of an amendment to Constitution art. Ill, § 5 providing that this Court should “have original jurisdiction to review the legislative districting of the State” and the failure of the Governor to hold the public hearings required by the same section of the constitution prior to the submission of his redistricting plan to the General Assembly.

Upon challenge to the plan on that basis, we ⁶⁶⁴ concluded that the Governor’s plan was not validly promulgated. We passed an order to that effect on July 31, 1973. In the matter of granting “appropriate relief” we were faced with the necessity for finding a point of beginning. Our order specified “that said invalidly promulgated plan [was] .. . adopted by the Court as the plan setting forth the proposed boundaries of the legislative districts for the election of members of the Senate and House of Delegates, unless cause to the contrary [were] shown, as [t]hereinafter provided.” We ordered “that public hearings be properly scheduled and held in Annapolis, Maryland before the Honorable Hall Hammond, [former Chief Judge of this Court,] a Special Master” appointed by the same order.

We provided for notice throughout the State by publication in newspapers in each county. We ordered “that any registered voter of this State, other than the petitioners in the [then pending] proceedings, who desire [d] to show cause why the said plan, or any part thereof, should not be duly adopted as the final legislative districting plan for this State [should] formally intervene in th[o]se proceedings on or before September 30, 1973 . .. .” Rather than go off on a project of our own, redesigning and redefining the legislative districts of this State, we elected to exercise judicial restraint by changing only those legislative districts which, upon challenge, we found to be constitutionally invalid. In the plan proposed by the Governor and in the plan promulgated by us, Legislative District 34 consists of the counties of Cecil, Kent, and Queen Anne’s. The provision that no county should have more than one delegate residing in it is identical in both plans.

It affects only Legislative Districts 34, 35, and 36, made up of the nine counties comprising the Eastern Shore of Maryland, since only those legislative districts contain “more than two counties or parts of more than two counties.” No challenge was made before or after our order of July 31, 1973, to Legislative District 34. Challenge was made to Districts 35 and 36 based upon the' division of Wicomico County and the fact that a part of Somerset County was ⁶⁶⁵ placed in Legislative District 34 with no means of being reached from other portions of that district by road (other than by use of the ferry at Whitehaven), it being separated from the remainder of the proposed district by unbridged navigable waters. No challenge was made before or after the July 31, 1973, order to the provision relative to residence of delegates until mention was made of the case of Secretary of State v. Bryson, 244 Md. 418 , 224 A. 2d 277 (1966), which we shall later discuss, in a motion for reargument filed by residents of the western part of Wicomico County who objected to being separated from the remainder of that county by being placed in Legislative District 35. ii Area Involved The area under discussion can be best understood by reference to a copy of a portion of the Maryland 1974 official highway map appended to this opinion which the reporter is directed to reproduce. Cecil County, the northernmost of the three counties, had a 1970 population as shown by the census of that year of 53,291, mostly concentrated north of the Chesapeake and Delaware Canal since that census reflects a total of but 6,010 people residing in its two southernmost election districts, Chesapeake City and Cecilton.

It is divided from Kent County by the Sassafras River and its tributaries from the Chesapeake Bay to the Delaware State line. There are but three roads between the two counties. The main road is that which crosses the Sassafras by a drawbridge between Georgetown and Fredericktown. U. S. Route 301, of recent construction, is a limited-access highway which crosses the upper reaches of the Sassafras.

The third point is a road between the village of Sassafras in Kent County and the crossroads of Ginns Corner in Cecil County. Kent County, the middle county, had a 1970 population of 16,146, of which more than a fourth (4,209) were located in the Chestertown election district, the county seat, and 2,889 in the Edesville district, which includes the town of Rock ⁶⁶⁶ Hall on the Chesapeake Bay. From the Chesapeake Bay to the Delaware State line, Kent County is separated from Queen Anne’s County by the Chester River. There are but four points of contact between the two counties, with the principal point being via the drawbridge at Chestertown.

U. S. Route 301 also connects these two counties. There are other river crossings at Crumpton and at Millington. Queen Anne’s County, the southernmost county, had a 1970 population of 18,422, with the heaviest concentration being in the Kent Island and Queenstown election districts with a total of 7,728 people. The Centreville election district, the county seat, had 3,564 people.

The peculiar geography of the Eastern Shore of Maryland, cut as it is by navigable streams, may well be the reason for the insertion into the Governor’s Plan of the provision relative to residence, since further examination of relevant maps will reveal that although Talbot and Caroline Counties adjoin and are in the same legislative district, there are but three points of connection, fixed bridges at Hillsboro and New Bridge across the Tuckahoe, and a drawbridge across the Choptank at Dover Bridge; and although Talbot and Dorchester Counties adjoin, their only connection is the mile-long drawbridge across the Choptank at Cambridge opened in the late 1930’s. Prior to that there was no connection. Dorchester and Wicomico Counties border each other from the Chesapeake Bay to the Delaware line, being divided by Holland Strait, Tangier Sound, and the Nanticoke River, with the only road connections being drawbridges at Vienna and Sharptown across the Nanticoke. iii Validity of the Plan Calvert contends “that the application of a county residency requirement to the nomination of candidates for election to the House of Delegates from Legislative District 34 would result in a patent violation of the one-man one-vote principle articulated by the Supreme Court in Reynolds v. ⁶⁶⁷ Sims [, 377 U. S. 533 , 84 S. Ct. 1362 , 12 L.Ed.2d 506 (1964),] and its progeny, and that this Court’s decision in Secretary of State v. Bryson, 244 Md. 418 [, 224 A. 2d 277 ] (1966), presenting an indistinguishably similar attempt to compromise the one-man one-vote principle, has not been diluted or abrogated since 1966 and is dispositive of this base.” The trial judge concluded that since Cecil County has 61% of the population, Queen Anne’s County 21% of the population, and Kent County 18% of the population, permitting “each County [to] elect one delegate . . . does not approximate the concept of one man — one vote” and is an “invidiously wide disparity in population.” In Bryson , Maryland Code (1957) Art. 40, § 42E (A-2), as repealed and re-enacted by Chapter 2 of the Acts of the Special Session of 1965, provided that in any senatorial district “comprising more than one county and having two Senators, not more than one resident of any one county [might] be nominated by one political party at the primary election, unless the population of that one county exceed[ed] the population of all the remaining counties in the district in the aggregate.” It was further provided that any senatorial candidate had to be voted upon at large within the entire district at the primary election and that the provisions of the subsection should not apply to general elections for the office of state senator. Two state senators were to be elected from District 2, composed of Frederick and Carroll Counties.

In the Republican primary the two candidates receiving the highest number of votes were both from Carroll County. Since Frederick County by the 1960 census had a population of 71,930 to Carroll County’s 52,785, only one Republican candidate resident in Carroll County could be nominated if the section were valid. Upon the strength of Davis v. Dusch, 361 F. 2d 495, 497 (4th Cir. 1966), this Court observed that “it is the distribution of representatives rather than the method of distributing them that must satisfy the demands of the Equal Protection Clause.” It said Fortson v. Dorsey, 379 U. S. 433 , 85 S. Ct. 498 , 13 L.Ed.2d 401 (1965), and Reed v. Mann, 237 F. Supp. 22 (N.D. Ga. 1964), were not apposite since in each case “there was no allegation or ⁶⁶⁸ evidence that the districts were unequal as to population.” Judge Oppenheimer said for the Court: “The invalidity of the Section, under the one-man one-vote principle, is clear. Frederick and Carroll Counties have populations in the respective approximate proportions of 7 to 5.

Under the operation of the Section, Frederick County could have two nominees in the primary of one party while Carroll County would have none.” Id. at 428. Believing, as it was put in Herring v. Christensen, 252 Md. 240, 242 , 249 A. 2d 718 (1969), that “consistency and stability in this Court’s rulings ... are necessary for our citizens to know their respective rights and obligations,” that the General Assembly is the branch of government vested with legislative power, and that that body at its periodic meetings by appropriate legislation can take steps to alter a decision of ours with which it may disagree, this Court has consistently adhered to the doctrine of stare decisis. We do not feel bound under that doctrine by the decision in Bryson , however, because that case involved a determination based upon the Court’s understanding of what the Supreme Court of the United States had held by way of an interpretation of the Constitution of the United States after its revolutionary holdings in Baker v. Carr, 369 U. S. 186 , 82 S. Ct. 691 , 7 L.Ed.2d 663 (1962), and Reynolds v. Sims, 377 U. S. 533 , 84 S. Ct. 1362 , 12 L.Ed.2d 506 (1964). By the decisions of that Court since Bryson we have been provided with additional light and, therefore, view the matter somewhat differently.

As has been noted, the decision in Bryson relied upon Davis v. Dusch, supra. That decision was reversed in Dusch v. Davis, 387 U. S. 112 , 87 S. Ct. 1554 , 18 L.Ed.2d 656 (1967), decided after Bryson. Dusch involved election of a city council for Virginia Beach. After a United States District Court had held the allocation of members of the city council invalid as denying voter equality, the city charter was amended.

The council was composed of 11 members. Four were elected at large without regard to residence. Seven ⁶⁶⁹ were elected by the voters of the entire city, one being required to reside in each of the seven boroughs. The population of the boroughs ranged from a low of 733 to a high of 29,048.

Mr. Justice Douglas there said for the Court: “The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U. S. 433 , 438: ‘It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-district counties merely as the basis of residence for candidates, not for voting or representation. Each district’s senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus in fact he is the county’s and not merely the district’s senator.’ “By analogy the present consolidation plan uses boroughs in the city ‘merely as the basis of residence for candidates, not for voting or representation.’ He is nonetheless the city’s, not the borough’s, councilman.

In Fortson there was substantial equality of population in the senatorial districts, while here the population of the boroughs varies widely. If a borough’s resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. But on the assumption that Reynolds v. Sims controls, the constitutional test under the Equal Protection ⁶⁷⁰ Clause is whether there is an ‘invidious’ discrimination.” Id. at 115-16. “The Seven-Four Plan seems to reflect a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis in relation to the city, the suburbia, and the rural countryside. Finding no invidious discrimination we conclude that the judgment of the Court of Appeals must be and is Reversed.” Id. at 117.

Although Mr. Justice Douglas in Davis said that “there was substantial equality of population in [the] senatorial districts” in Fortson , we note that in his dissent in Fortson he referred to the three senatorial districts in DeKalb County, stating that “District 41 contained] 75,117 voters,” that “District 42 contained] 95,032 voters,” and that “District 43 contained] 86,633 voters.” The contest in Fortson was directed not at population disparity, but at the validity of a plan under which 33 senatorial districts were made up of from one to eight counties with senators elected on a district-wide basis and the remaining 21 senatorial districts were allotted in groups of from two to seven among the seven most populous counties, with senators elected on a county-wide basis rather than on a district-wide basis. A three-judge court had held this to be “a discrimination as between voters in the two classes.” The Supreme Court reversed. If one were to think of our Legislative District 34 as being a Georgia county required to elect a representative from each of the subdistricts comprising Cecil, Kent, and Queen Anne’s Counties but on a district-wide basis, one would have an analogous situation to that ruled upon and upheld in Fortson . In Mahan v. Howell, 410 U. S. 315, 321 , 93 S. Ct. 979 , 35 L.Ed.2d 320 (1973), the Court referred to its statement in ⁶⁷¹ Reynolds v. Sims, 377 U. S. 533 , 84 S. Ct. 1362 , 12 L.Ed.2d 506 (1964): “A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions.

Several factors make more than insubstantial claims that a State can rationally consider according political subdivisions some independent representation in at least one body of the state legislature, as long as the basic standard of equality of population among districts is maintained. Local governmental entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions. And a State may legitimately desire to construct districts along political subdivision lines to deter the possibilities of gerrymandering.

However, permitting deviations from population-based representation does not mean that each local governmental unit or political subdivision can be given separate representation, regardless of population.” 377 U. S. at 580-81 . In Mahan a three-judge United States District Court had struck down the apportionment of the Virginia House of Delegates because of a 16.4% variation from the ideal district population, variances which the district court noted were traceable to the desire of the General Assembly to maintain the integrity of traditional county and city boundaries. With one exception, the delegate districts followed political jurisdictional lines of the counties and cities. That exception, Fairfax County, was allotted 10 delegates, but was divided into two five-member districts.

The Court said in Mahan : ⁶⁷² “We are not prepared to say that the decision of the people of Virginia to grant the General Assembly the power to enact local legislation dealing with the political subdivisions is irrational. And if that be so, the decision of the General Assembly to provide representation to subdivisions qua subdivisions in order to implement that constitutional power is likewise valid when measured against the Equal Protection Clause of the Fourteenth Amendment. The inquiry then becomes whether it can reasonably be said that the state policy urged by Virginia to justify the divergences in the legislative reapportionment plan of the House is, indeed, furthered by the plan adopted by the legislature, and whether, if so justified, the divergences are also within tolerable limits'. For a State’s policy urged in justification of disparity in district population, however rational, cannot constitutionally be permitted to emasculate the goal of substantial equality.” Id. at 325-26 .

The Court held: “The policy of maintaining the integrity of political subdivision lines in the process of reapportioning a state legislature, the policy consistently advanced by Virginia as a justification for disparities in population among districts that elect members to the House of Delegates, is a rational one. It can reasonably be said, upon examination of the legislative plan, that it does in fact advance that policy. The population disparities that are permitted thereunder result in a maximum percentage deviation that we hold to be within tolerable constitutional limits. We, therefore, hold the General Assembly’s plan for the reapportionment of the House of Delegates constitutional and reverse the District Court’s conclusion to the contrary.” Id. at 329-30 .

Kent County has adopted the home rule provisions ⁶⁷³ provided by Maryland Constitution art. XI-F and Code (1957, 1973 Repl. Vol.) Art. 25B. Maryland Manual 1973-1974, 465 (1974).

Neither Cecil County nor Queen Anne’s County has home rule, thus necessitating the enactment of local legislation for those counties by the General Assembly. In fact, the voters of Cecil County rejected home rule at a referendum on the subject. The governmental powers and functions of the counties of Maryland were set forth for this Court by Judge Henderson in Maryland Committee v. Tawes, 229 Md. 406, 412 , 184 A. 2d 715 (1962). Judge Barnes in his dissenting opinion in Hughes v. Maryland Committee, 241 Md.