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.
Once every ten years, following each United States Census, Article III, § 5 of the Maryland Constitution
This Court has original jurisdiction to consider any challenges to the legal validity of the legislative apportionment plan. Md. Const. Art. III, § 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.
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
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 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,
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:
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.
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 Delegate 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").
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 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).
We have further explained that:
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, 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
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 1/47th 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 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.
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 political subdivision boundaries. Legislative Redistricting Cases, 331 Md. at 613-14, 629 A.2d at 666.
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:
In addition to Article I, §§ 2 and 3 of the Federal Constitution, the petitioner relies on selected portions of the Federalist Papers,
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:
(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 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
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.
The petitioners, Delores Kelley and James Brochin, are registered voters and incumbent members of the Maryland Senate from Baltimore County.
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 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
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.
The Special Master also concluded that the State correctly argued that the decision as to where constitutionally required border crossing 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.
The State also excepted to the Special Master's recommendation relevant to the Kelly/Brochin petition.
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 state-wide. 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 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
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, 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 reapportionment 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 "`[p]olitics 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.
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 Constitution, such as the due regard requirement at issue here, are no exception to this obligation.
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
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 sub judice 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:
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:
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.
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 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,
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 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
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
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:
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.
The petition of Cynthia Houser, et al., in Miscellaneous No. 5, challenged the Enacted
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 Amendment. In particular, the petitioners characterized the Enacted Plan's intent, in violation of both Federal and State equal protection requirements, as follows:
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%;
With respect to their claim under Article III, § 4 of the Maryland Constitution, the petitioners alleged that "[t]he Enacted 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,
The State's answer to the petition requested dismissal of the petitioners' claims or favorable summary disposition as a matter
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:
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 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 "`10% 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."
Having examined evidence that the petitioners offered to establish the various discriminations they alleged,
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,
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 decision. In our 1993 opinion, after acknowledging that the maximum deviation of the Governor's plan was less than 10%, we stated: "[T]herefore, 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,
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.
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 Larios 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 Larios, 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,
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.
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.
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:
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 Larios, a three judge district court panel, following a bench trial, concluded, inter alia:
Larios, 300 F.Supp.2d at 1322. Moreover, the court stated:
Id. at 1325. The evidentiary support for those conclusions was both direct, consisting of the testimony of the legislative reapportionment staff and legislators, and circumstantial, comparing the plan itself with proposed alternative plans, and it was quite extensive.
With respect to the House plan, the testimony revealed that the staff member charged with developing the plan
Id. at 1326. As a result, the plan
Id. The plan split eighty counties into 266 parts, and paired forty-two incumbents, thirty-seven of whom, about half of their number, were Republicans. Id.
The factual situation was similar with regard to the Senate Plan. The Senator in charge of reapportionment
Id. at 1327. The court described the plan that resulted from that focus:
Id. The court also pointed to the fact that both houses of the General Assembly "used Mapitude software to draw their redistricting plans," id. at 1324, which permitted them to draw plans with deviations of 0-1 person. In addition, it observed:
Id.
Addressing the "one person, one vote" challenge, the court held that, in that case, the "policies the population window was used to promote . . . were not `free from any taint of arbitrariness or discrimination.'" Id. at 1341 (quoting Roman, 377 U.S. at 710, 84 S.Ct. at 1458, 12 L.Ed.2d at 630). It explained:
Id. at 1341-42.
The evidence with regard to the districting plan sub judice and the circumstances surrounding its development are quite different. The petitioners' case consisted of the evidence and conclusions of M.V. Hood, an associate professor of political science at the University of Georgia. Having divided the population of the Senate and Delegate Districts in the Enacted Plan by the square mileage of the District, Professor Hood concluded that the urban districts, those with the highest population density, are underpopulated, and that the rural districts, those with the lower population density, are overpopulated. From that conclusion, he draws his ultimate conclusion: "a pattern exists whereby the State's legislative plan under populates urban districts while overpopulating rural districts." More particularly, as the Special Master noted, the higher the population density, the greater the negative deviation.
To determine whether there was regional discrimination, Professor Hood divided the Delegate Districts into four geographical areas: the Western region, made up of Garrett, Allegany, Washington, Frederick and Carroll Counties; the Southern Region, consisting of Calvert, Charles and St. Mary's Counties; Baltimore City; and the eastern region, consisting of the Eastern Shore, Harford County and part of Baltimore County. Noting that all of the regions except Baltimore City were overpopulated by from 1 to 4%, and that Baltimore City was underpopulated by more than 4%, he concluded that "legislative districts housed within certain regions of Maryland are intentionally over or under populated." The total number of Delegate seats accounted for by this grouping is 58. Not accounted for in this analysis, as the Special Master points out, "is the bulk of the State's population—Montgomery, Prince George's, Howard, and Anne Arundel Counties and a large part of Baltimore County, from which 83 Delegates are elected."
To be sure, in resolving the petitioners' contention that the Enacted Plan impermissibly discriminated on the basis of population density, region, partisanship and race, the Special Master stated, addressing population density and regionalism:
Addressing discrimination based on partisanship, the Special Master stated, "the petitioners presented none of the kind of evidence presented in Larios that might directly show an intent on the part of the Governor or the General Assembly to underpopulate or overpopulate districts for solely partisan purposes." These statements were made after the Special Master had reviewed the petitioners' contentions, and framed the issues presented and to be decided: whether, although less than 10%, "the Enacted Plan's maximum and average deviations violate the `one person, one vote' principle because they are unnecessarily large and embody discrimination based on race, partisanship, rates of population growth, and region." The Special Master conducted an extensive analysis of
With regard to the former, it is significant that, in addressing it, the Special Master acknowledged that "a showing of intentional discrimination [may be made] either directly or by necessary implication." He also found:
The evidence presented to show a lack of compactness and due regard, and the conclusions drawn from that evidence, are similarly pertinent. A deviation resulting from the State's attempt to make the districts compact and/or to pay due regard to the boundaries of political subdivisions may be justified and, therefore, defeat a challenge based on discrimination. As the Special Master pointed out, quoting Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506, 536 (1964), the Supreme Court requires states to make "an honest and good faith effort to construct districts . . . as nearly of equal population as is practicable," and that a degree of flexibility is permissible in order to permit the states to pursue other legitimate objectives, such as "maintain[ing] the integrity of various political subdivisions, insofar as possible, and provid[ing] for compact districts of contiguous territory in designing a legislative apportionment scheme," id. at 578, 84 S.Ct. at 1390, 12 L.Ed.2d at 537, a point also made by this Court, see Legislative Redistricting Cases, 331 Md. at 597 n.17, 629 A.2d at 676 n.17 (citing, in addition to Reynolds, supra, Karcher v. Daggett, 462 U.S. 725, 740, 103 S.Ct. 2653, 2663, 77 L.Ed.2d 133, 147 (1983)) ("[A] state may deviate from pure population equality among districts for numerous reasons: to make districts compact, to make districts contiguous, to respect the boundaries of political subdivisions and municipalities, to preserve the cores of prior districts, to avoid contests between incumbents, or to further any other rational state policy."). The point is that the deviations must be undergirded by "valid considerations," as "[i]ndiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." Reynolds, 377 U.S. at 578-79, 84 S.Ct. at 1390, 12 L.Ed.2d at 537.
After review, the Special Master concluded that the petitioners had not met their burden of producing the necessary compelling evidence to require the State to justify the county crossings. He explained:
From the foregoing, we do not read the Special Master to be saying that direct evidence, and only direct evidence, will suffice to establish that the State, the drafters of the Enacted Plan, had a discriminatory intent in developing it. As we see it, he was comparing the quality of the evidence, both direct and circumstantial, supporting the unconstitutional determination in Larios, all of which went to the proof of discriminatory or arbitrary intent, with that offered in this case, and, after that comparison, he found the evidence in this case lacking. And because the evidence in Larios consisted of both direct and circumstantial evidence, all of which tended to prove the intent of the plan's drafters, and collectively, directly so, the reference to "the kind of evidence presented in Larios that might directly show" the drafters' intent, is no more than a recognition that the quality of the evidence in this case did not measure up to that in Larios.
In any event, the Special Master's determination that the petitioners failed to meet their burden to establish that impermissible discrimination caused the deviations in the Enacted Plan is a conclusion of law. We review conclusions of law de novo. See generally Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646; In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292 (2002). Having conducted our review comparing the evidence found sufficient in Larios with all the evidence produced in the case sub judice, without distinguishing between whether it is direct or circumstantial, we arrive at the same conclusion that the Special Master reached and find that the petitioners failed to prove that the Enacted Plan was not
The petitioners' next exception to the Special Master's recommendations is that the Special Master mischaracterized their "one person, one vote" challenge by conflating it with a challenge based upon partisan and/or racial gerrymandering. We do not agree.
In I.
(Emphasis added). Subsequently, in VI.
(Emphasis added).
From the foregoing, it is clear, we believe, that the Special Master did not mischaracterize or miscategorize what the petitioners pled. They pled, to be sure, a "one person, one vote" violation, committed, however, in a variety of ways and for a variety of purposes: by and for racial discrimination; by and for regional discrimination; by favoring urban areas over rural areas; and by partisan gerrymander. Having clearly pled the violation and, in the process revealed and stated its manifestation and effect, an argument to the contrary, and attempts to draw nice and fine distinctions, are not enough to make it so. The Special Master considered, and rejected, the petitioners' "one person, one vote" claim in each of its manifestations and effects, but it was only as to the political gerrymander iteration that he applied, and properly so, the Supreme Court's political gerrymander cases. In so doing, he did not err.
To establish "discrimination based on partisanship," one of the purported "patterns that caused the deviations contained in the Enacted Plan," the petitioners' expert offered population data he had examined in detail that showed how voters in the various districts had voted for President in the 2008 general election and for Governor in the 2010 general election. From this analysis, the expert concluded that "the Democratic vote is concentrated in under populated districts" and "the Republican vote is associated with districts which are above the ideal population target," and that "[e]ven without the presence of majority-black Senate districts there still remains a moderately strong, negative relationship between district population deviation and district partisanship." On the other hand, the State's expert used population data showing party registration to conclude that "once the majority minority districts are accounted for, there is no partisan pattern in the population deviations of the districts in the Enacted Plan."
The Special Master sided with the State's expert, "suggest[ing] that voter registration is the more reliable indicator of partisanship than votes for President and Governor in two general elections." He explained:
The petitioners take issue with this finding and, in fact, argue that the opposite is true, as the Supreme Court has specifically determined. For the latter proposition, they rely on language from Easley v. Cromartie, 532 U.S. 234, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001). Indeed, the petitioners assert that the Supreme Court has rejected evidence of party registration as an accurate gauge of a subject district's partisan composition. We are not persuaded.
In Cromartie, the Supreme Court reviewed a district court's finding in favor of North Carolina residents, who challenged a state congressional redistricting plan as racially gerrymandered in violation of the Equal Protection Clause. Cromartie, 532 U.S. at 237, 121 S.Ct. at 1455-56, 149 L.Ed.2d 430, 440. In such cases, where the Legislature is accused of improperly "us[ing] race as a criterion, in order, for example, to create a majority-minority district," the challengers "must show at a minimum that the `legislature subordinated traditional race-neutral districting principles... to racial considerations,'" that race was "the `predominant factor' motivating the legislature's districting decision," id. at 241, 121 S.Ct. at 1458, 149 L.Ed.2d at 443 (quoting Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 2488, 132 L.Ed.2d 762, 779-80 (1995)), not simply "a motivation for the drawing of a majority-minority district." Bush v. Vera, 517 U.S. 952, 959, 116 S.Ct. 1941, 1952, 135 L.Ed.2d 248, 257 (1996); see Hunt v. Cromartie, 526 U.S. 541, 546, 119 S.Ct. 1545, 1549, 143 L.Ed.2d 731, 738 (1999) (quoting Shaw v. Reno, 509 U.S. 630, 643, 113 S.Ct. 2816, 2825, 125 L.Ed.2d 511, 526 (1993), in turn quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450, 465 (1977)) (stating that plaintiffs must show that a facially neutral law "`is unexplainable on grounds other than race.'").
The question that the Court was required to answer was whether the district court's finding that the predominant reason for the Legislature's districting decision was racial, rather than political, was adequately supported, "where the State has articulated a legitimate political explanation for its districting decision, and the voting population is one in which race and political affiliation are highly correlated." Cromartie, 532 U.S. at 242, 121 S.Ct. at 1458, 149 L.Ed.2d at 445.
The Court considered whether party registration data provided that support, and concluded that it did not. Id. at 244-245, 121 S.Ct. at 1460, 149 L.Ed.2d at 445-46. Regarding the use of party registration data, the Court explained:
Id. at 245, 121 S.Ct. at 1460, 149 L.Ed.2d at 445-46. It also was of significance to the Court that "the primary evidence upon which the District Court relied for its `race, not politics,' conclusion [was] evidence of voting registration, not voting behavior; and that is precisely the kind of evidence that we said was inadequate the last time this case was before us." Id. at 244, 121 S.Ct. at 1459, 149 L.Ed.2d at 444. It was for this reason that the Supreme Court rejected the district court's reliance on registration data as sufficient to satisfy the demanding burden of proof to show that a facially neutral law is unexplainable on grounds other than race, id. at 241-42, 121 S.Ct. at 1458, 149 L.Ed.2d at 443, and, instead, held that actual voting results data would more accurately determine whether race and political affiliation are highly coordinated. Id. at 245, 121 S.Ct. at 1460, 149 L.Ed.2d at 445.
The petitioners' reliance on Cromartie is to no avail. It is true, as the petitioners argue, that the Supreme Court, in that case, rejected evidence of party registration as an accurate gauge of a subject district's partisan composition, but it did so in a specific and discrete situation, in a racial gerrymander case, where proof of the Legislature's racial intent, is not only crucial, but is subject to "a demanding" burden of proof, which the proponents of the evidence must meet. Cromartie, 532 U.S. at 241, 121 S.Ct. at 1458, 149 L.Ed.2d at 443 (citing Miller v. Johnson, 515 U.S. 900, 928, 115 S.Ct. 2475, 2497, 132 L.Ed.2d 762, 790-91 (1995) (O'CONNOR, J., concurring)). There is nothing in that case, or in any other that we could find, that indicates that the Court would reach the same conclusion when the case is simply a political gerrymander case, where the issue is whether the Legislature's motivation was purely political. In that situation, the Special Master's suggestion, that voter registration data is more reliable, may well be correct. The petitioners' exception on these grounds is overruled.
As indicated, finding the petition "extremely skimpy" and the evidence in support of its allegations to be "equally general," the Special Master concluded that the petitioners did not support their challenge based on the compactness and due regard requirements of Article III, § 4 with compelling evidence. In particular, he referred to the petitioners' expert's lack of "particularity" in identifying necessary and unnecessary boundary crossings. Disagreeing with that assessment of their petition, the evidence they presented in support of it and the conclusion the Special Master drew, the petitioners filed an exception in which they charged that the Special Master, without "cit[ing] a case to support the proposition that a petitioner must plead and prove the presence of a specific illicit border crossing," "imposed a heightened requirement of specificity in evaluating whether Maryland violated the due regard section of Article 3, § 4" and affirmatively asserted that their expert's report was "sufficiently specific" as to the districts in which the shared districts were unnecessary. They also maintain that "the evidence Dr. Hofeller adduced is consistent with the goals of the due regard provision, namely to protect and uphold Maryland's deference to its county system of government. In the Matter of Legislative
In support of their exceptions, the petitioners reiterated the evidence presented at the hearing before the Special Master, challenged the statements, assumptions and conclusions of the State's expert witness, and frequently contrasted the Enacted Plan with the alternative plans, the Coherent County Plan and the Hough/Alston Plan, which they favored over it, as proof of the validity of their challenges. For example, the petitioners argue:
The petitioners did not further explain the basis for the conclusion drawn by their expert with regard to the necessity for the boundary crossings he found to be appropriate and the lack of necessity for those he deemed not to be.
As was the case with the petitioners' first exception, the conclusion that the petitioners failed to meet their burden of proof with respect to the due regard and compactness requirements is a question of law, which we review de novo. Having so reviewed the evidence that the petitioners presented, we reach the same conclusion reached by the Special Master. It should be said, in addition, that we do not believe that requiring an expert to explain and/or provide support for his or her conclusions is the imposition of a "height[ened] requirement of specificity." It is well settled in this State that an expert's opinion is only as good as the basis offered to support it. See Exxon Mobil Corp. v. Albright, 433 Md. 303, 418, 71 A.3d 30, 100 (2013) (citing Giant Food, Inc. v. Booker, 152 Md.App. 166, 188, 831 A.2d 481, 494 (2003), cert. denied, 837 A.2d 926, 378 Md. 614 (2003), in turn quoting Surkovich v. Doub, 258 Md. 263, 272, 265 A.2d 447, 451 (1970) ("[A]n expert's opinion must be grounded in sufficient facts, such that it constitutes more than mere speculation or conjecture[.]"); Beatty v. Trailmaster Prod., Inc., 330 Md. 726, 741, 625 A.2d 1005 (1993) (quoting State Dep't of Health v. Walker, 238 Md. 512, 520, 209 A.2d 555 (1965)) ("[N]o matter how highly qualified the expert may be in his field, his opinion has no probative force unless a sufficient factual basis to support a rational conclusion is shown."). See also Giant Food, Inc. v. Booker, 152 Md.App. 166, 182-83, 831 A.2d 481, 490 (2003), cert. denied, 837 A.2d 926, 378 Md. 614 (2003) (quoting Uhlik v. Kopec, 20 Md.App. 216, 223, 314 A.2d 732, 737 (1974), cert. denied, 271 Md. 739
The petitioners' final exception is to the Special Master's conclusion that they did not satisfy the so called Gingles factors test under § 2 of the Voting Rights Act. They argue that the Special Master was wrong in so concluding, because the totality of the circumstances shows the need for majority-minority districts in order for African-American voters to elect candidates of their choice. Having pled that African-Americans constitute 29.3% of the State's population, and applying proportionality, that means that African-Americans should have at least 41 of the 141 seats in the House of Delegates and 13 or 14 Senate seats, and the Enacted Plan allocates only 37 seats to majority African-American Delegate districts and only 12 seats to majority African-American Senate Districts, the petitioners argue that the Enacted Plan does not afford African-American voters an equal opportunity to participate in the political process and elect representatives of their choice. The petitioners ask that this Court adopt either the alternative plan introduced into the House of Delegates by Delegates Hough and Alston or the Coherent County Map devised by the petitioners—both of which, they assert, demonstrate that drawing majority-minority districts is possible while still adhering to other traditional redistricting principles.
The State asserts, in response, that the Voting Rights Act does not confer a right to have members of a protected class elected in numbers equal to their proportion of the population. Section 2 of the Act, it submits, does not obligate the States to create the maximum possible number of majority-minority districts.
Congress enacted the Voting Rights Act of 1965 "[i]n an effort to eradicate persistent assaults on the ability of minorities to vote. . . ." Legislative Redistricting Cases, 331 Md. 574, 602, 629 A.2d 646, 660 (1993). The Act was given two main provisions. Section 2 proscribes states and their subdivisions from imposing any qualification, prerequisite, standard, practice, or procedure which undermines minority voting strength. 42 U.S.C.A. § 1973. Section 5 prevented certain states and subdivisions from changing election laws with the purpose or effect of detrimentally affecting minority voting power. 42 U.S.C.A. § 1973c..
In re Legislative Districting of State, 370 Md. 312, 390, 805 A.2d 292, 338 (2002).
In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court provided guidance for proving a violation of the amended § 2 of the Voting Rights Act that remains crucial for evaluating challenges to a districting plan under § 2. See also League of United Latin American Citizens v. Perry, 548 U.S. 399, 126 S.Ct. 2594, 165 L.Ed.2d 609 (2006); Bartlett v. Strickland, 556 U.S. 1, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009). There, the Court opined that the essential question in Voting Rights Act actions "is whether `as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to practice in the political process and to elect candidates of their choice.'" Gingles, 478 U.S. at 44, 106 S.Ct. at 2763, 92 L.Ed.2d at 43 (quoting the Senate Judiciary Committee majority Report accompanying the § 2 amendments (S.Rep. No. 97-417, at 28 (1982))).
The Court also recognized that multimember districts and at-large election schemes are not per se violations of minority voters' rights. Id., at 48, 106 S.Ct. at 2765, 92 L.Ed.2d at 45. Multimember districts generally will not impair minority voters' ability to elect representatives of their choice, except when there exist three necessary preconditions:
Id., at 50-51, 106 S.Ct. at 2766-67, 92 L.Ed.2d at 46-47 (internal citations and footnotes omitted).
The three aforementioned Gingles preconditions serve as a framework for analyzing challenges to a multimember districting plan under § 2 of the Voting Rights Act. Therefore, the claimant(s), as an initial matter, must first satisfy these three conditions as they apply to individual districts. "If all three Gingles requirements are established, the statutory text directs us to consider the `totality of circumstances' to determine whether members of a racial group have less opportunity than do other members of the electorate." League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425-26, 126 S.Ct. 2594, 2614, 165 L.Ed.2d 609, 636 (2006) (citing Johnson v. De Grandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775, 790-91 (1994). See Abrams v. Johnson, 521 U.S. 74, 91, 117 S.Ct. 1925, 1936, 138 L.Ed.2d 285, 303 (1997).) In Gingles, the Court stated: "These circumstances are necessary preconditions for multimember districts to operate to impair minority voters' ability to elect representatives of their choice . . ." Gingles, 478 U.S. at 50, 106 S.Ct. at 2766, 92 L.Ed.2d at 46. Findings as to these preconditions are "upheld unless clearly erroneous." League of United Latin Am. Citizens, 548 U.S. at 427, 126 S.Ct. at 2614, 165 L.Ed.2d at 636-37. See Gingles, 478 U.S. at 78-79, 106 S.Ct. at 2780-81, 92 L.Ed.2d at 64.
Relevant objective factors, which may be Statewide or regional in nature, in a "totality of the circumstances" determination include, but are not limited to, the following:
The following were pled as facts relevant to the petitioners' Voting Rights Act violation claim, either as a threshold matter, or to the "totality of the circumstances" review:
In support of those allegations, the petitioners offered the Declaration of their expert, Professor Hood. In that Declaration, he applied a statistical analysis, referred to as "ecological inference estimates,"
The State denied that the petitioners' evidence established a violation of the Voting Rights Act, noting that a showing only that more single-member minority districts could be created does not establish a Voting Rights Act violation and that the Gingles factors are threshold factors, which focus on the individual districts, so that state-wide voting patterns are irrelevant.
The Special Master rejected the petitioners' Voting Rights Act challenge, concluding that they did not pass the Gingles threshold. He explained:
The petitioners' exception is that "the Special Master improperly concluded that Petitioners did not satisfy the Gingles factors." They insist, to the contrary, that they have satisfied those factors by demonstrating that the districts noted in their pleadings "demonstrate a particularly high instance of racial block voting on the part of non-Hispanic whites" and that "[t]hese abnormally high levels of racial block voting on the part of non-Hispanic whites effectively blocks African American[s] from electing their candidates of choice." Emphasizing and maintaining that they pled and proved the Gingles factors, the petitioners complain:
We shall overrule this exception. Despite the petitioners' statement of the Gingles test in their exceptions, they, in effect, believe, and therefore argue, that the establishment that race and racial polarization contributed to the outcome of previous elections by a totality of the circumstances is sufficient to establish a Voting Rights Act violation. They are wrong, as the Special Master found. Assuming the validity of the ecological inference estimate approach, the data presented by the petitioners does provide evidence of racially polarized voting in Districts 41, 27, and 23.
Similarly, here the petitioners must show that the African-American voting age population in an individual district is sufficiently compact to form a majority in a single member district. As we have seen, the only non-Senate election involving a multimember district that was offered as evidence that multi-member districts are used to dilute the African American vote, was the election for delegate in District 28. In that election, the three white candidates defeated the African American candidate in a district with a 39.1% black voting age population, getting, between them, 67.1% of the black vote. The petitioners have not made such a showing and thus fail to satisfy the first of the Gingles requirements.
The petitioners also rely on a study conducted by the University of Maryland to illustrate the State's use of multimember districts as a device to prevent African-Americans from successfully electing their candidate of choice.
In re Legislative Districting of State, 370 Md. 312, 393-94, 805 A.2d 292, 340-41 (2002) (internal citations omitted) (quoting Johnson v. De Grandy, 512 U.S. 997, 1020, 114 S.Ct. 2647, 2661, 129 L.Ed.2d 775 (1994), in turn quoting § 2 of the VRA).
The State is correct in its analysis that the Gingles factors focus on individual districts, and therefore statewide voting patterns are not determinative with respect to the Gingles factors, but are relevant only to an examination of the totality of circumstances once the petitioners satisfy those threshold factors. Even if the petitioners were to satisfy the Gingles factors, however, they have only presented evidence regarding Legislative Districts 23 and 27 in Prince George's County, District 28 in Charles County, and District 41 in Baltimore City. The petitioners failed to present any evidence indicating that any other district or sub-district was similarly situated.
In re Legislative Districting of State, 370 Md. at 323, 805 A.2d at 298 (2002).
Id. at 372-73, 805 A.2d at 328.
42 U.S.C. § 1973 (1982).
Additionally, Speaker Michael E. Busch, who served on the Committee, stated:
Finally, Senate President Thomas V. Mile Miller, Jr., who also served on the Committee, stated:
42 U.S.C.A. § 1973 (emphasis in original).
