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In re Legislative Districting of State

Court of Appeals of Maryland

December 10, 2013

IN THE MATTER OF LEGISLATIVE DISTRICTING OF THE STATE

Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald [*] Bell, JJ.

OPINION

Bell, C.J. (Retired)

The right to formal political representation is fundamental to our state and national democracies. In the second year following each Federal decennial census, the Maryland Constitution provides that the Governor and State Legislature shall reapportion the State's legislative representation consistent with the State's current demographics. To protect the Federal and State legal rights that may be affected by this process, the Maryland Constitution also provides that the citizens of Maryland have the right to challenge this legislative apportionment scheme in this Court. In the present case, we are called upon to consider the validity of Maryland's most recently enacted legislative apportionment plan against three such challenges.

I.

A.

Once every ten years, following each United States Census, Article III, § 5 of the Maryland Constitution[1] requires that the State's 47 Legislative Districts (also referred to as "Senate Districts") be reapportioned. Under this provision, the Governor's mandate is to formulate a new legislative apportionment plan in conformance with the requirements of Article III, §§ 2, [2] 3, [3] and 4[4]. Once the legislative apportionment plan is drafted, the Governor must submit the plan to both the President of the Senate and the Speaker of the House of Delegates, who then must introduce the Governor's plan as a Joint Resolution by the first day of the Legislature's regular session in the second year following the decennial United States census. Unless the General Assembly adopts an alternative legislative apportionment plan by the forty-fifth day of that legislative session, the Governor's plan becomes law.

This Court has original jurisdiction to consider any challenges to the legal validity of the legislative apportionment plan. Md. Const. Art. 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.[5] The GRAC held 12 public hearings during the summer of 2011 and, on December 16, 2011, published its plan for the apportionment of the State's 47 Legislative Districts.

Following receipt of the GRAC committee's recommendations, the Governor presented a legislative apportionment plan to the Senate President and House Speaker, who introduced it in their respective Houses as Senate Joint Resolution 1 and House Joint Resolution 1. The Governor's plan became law on February 24, 2012 as revisions to Maryland Code (1984, 2004 Repl. Vol.) §§ 2-201 and 2-202 of the State Government Article.

The Attorney General, in anticipation of challenges being filed to the newly enacted plan, on March 2, 2012, filed a motion requesting this Court to issue an order promulgating the procedures to be followed in filing and considering any such challenges to the enacted legislative apportionment plan. On March 6, 2012, in response to the Attorney General's motion, we issued an order prescribing the schedule for filing challenges: any registered voter of the State who sought to challenge the Enacted Plan had to file a petition with the Clerk of the Court of Appeals no later than May 1, 2012, and the State's response and any amicus curiae briefs had to be filed no later than May 31, 2012. The order also appointed retired Court of Appeals Judge Alan M. Wilner as the Court's Special Master to conduct any required hearings.

The following petitions, among others, [6] challenging the Enacted Plan were filed:

1. Petition of Delores Kelley and James Bochin;
2. Petition of Christopher Eric Bourchat;
3. Petition of Cynthia Houser, et al.

On September 5, 2012, the Special Master held a hearing in accordance with the procedures promulgated by this Court. At the hearing, expert reports and other evidence were admitted without objection. After the hearing, the Special Master issued his recommendation that the enacted legislative apportionment plan be upheld against each of the challenges. Each party filed exceptions, as to which this Court held oral argument. Following oral argument, we issued the following order:

WHEREAS, pursuant to the provisions of Sec. 5 of Article III of the Constitution of Maryland, the Governor's legislative districting plan, introduced as House Joint Resolution No. 1 and Senate Joint Resolution No. 1, became effective on February 24, 2012, and
WHEREAS, the Office of the Attorney General having filed a motion to promulgate procedures to govern any petitions brought under Article III, Sec. 5 of the Constitution of Maryland, and
WHEREAS, challenges to the validity of the legislative districting plan having been filed and an evidentiary hearing having been held before a Special Master appointed by this Court, and
WHEREAS, oral arguments on the challenging petitions and exceptions to the report of the Special Master having been held before this Court on November 7, 2012, and
WHEREAS, the Court having determined that the Governor's plan is consistent with the requirements of the Constitution of the United States and the Constitution of Maryland, it is this 9th day of November, 2012,
ORDERED, for reasons to be stated later in a written opinion, that the relief sought by Petitioners in these actions is denied.

In the Matter of 2012 Legislative Districting of the State, 429 Md. 301, 55 A. 3d 713 (2012).

We now provide a de novo review of the Special Master's legal conclusions, and our reasons in support of the preceding order.

B.

We begin with a review of the applicable law common to each challenge, and the factual context in which the petitioners' challenges reached this Court.

Federal constitutional restraints on State legislative apportionment arise principally from the Fourteenth Amendment Equal Protection Clause in the so-called "one person, one vote" doctrine enunciated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), and further iterated by this Court in its redistricting jurisprudence: In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292 (2002); Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646 (1993); In re Legislative Districting, 299 Md. 658, 475 A.2d 428 (1984); In re Legislative Districting, 271 Md. 320, 317 A.2d 477 (1974). Under this rule, Maryland Senate Districts, single-member Delegate Subdistricts, and two-member 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, 23 L.Ed.2d 595 (1964). This requirement generally is considered to be prima facie satisfied if the variation in population between any two legislative districts does not exceed 10%. See In re Legislative Districting of State, 370 Md. 312, 356, 805 A.2d 292, 318; In re Legislative Redistricting Cases, 331 Md. at 592–594, 629 A.2d at 655-56.

Article III, §§ 2 and 3 of the Maryland Constitution divide the State's population into 47 Legislative Districts (also referred to as "Senate Districts").[7] Based on the 2010 census, Maryland had an adjusted population of 5, 772, 231 residents.[8] Therefore, based on the adjusted population size, equal apportionment among Maryland's 47 legislative districts translates to 122, 813 residents per an ideal Legislative District; 40, 938 residents per an ideal equally apportioned single-member Delegate Subdistrict; and 81, 875 per an ideal equally apportioned two-member Delegate Subdistrict.

Beyond the "one person, one vote" principle, intentional and invidious ethnic discrimination in legislative apportionment is repugnant to the United States Constitution under both the Fifteenth Amendment and the Equal Protection Clause of the Fourteenth Amendment. See Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). Legislative apportionment plans that effectively disenfranchise or abridge the right to vote of any citizen on account of "race or color" are prohibited by § 2 of the Voting Rights Act of 1965 (42 U.S.C. § 1973).[9]

With respect to Maryland law, the provisions that govern the legislative redistricting process were adopted by the Maryland voters in 1970, see Ch. 785 of the Acts of 1970, and 1972; Ch. 363 of the Acts of 1972, when the State Constitution was amended.[10] In addition to the drafting procedures noted above, Article III, § 4 provides: "Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population. Due regard shall be given to natural boundaries and the boundaries of political subdivisions." Thus, Article, III § 4 of the Maryland Constitution requires that "[e]ach legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population" and that "[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions."[11] We have held that an excessive number of border crossings violates Article, III § 4's due regard requirement, and have described adherence to this provision, along with the applicable Federal law, as "the essential prerequisite of any redistributing plan." In re Legislative Districting of State, 370 Md. at 321, 805 A.2d at 297. Non-compliance with this requirement is only permissible when it conflicts with a superseding Federal law, or a more important State constitutional requirement. Id. at 353-54, 805 A.2d at 316.

We have further explained that:
"This is not to say that, in preparing the redistricting plans, the political branches, the Governor and General Assembly, may consider only the stated constitutional factors. On the contrary, because, in their hands, the process is in part a political one, they may consider countless other factors, including broad political and narrow partisan ones, and they may pursue a wide range of objectives. Thus, so long as the plan does not contravene the constitutional criteria, that it may have been formulated in an attempt to preserve communities of interest, to promote regionalism, to help or injure incumbents or political parties, or to achieve other social or political objectives, will not affect its validity.
"On the other hand, notwithstanding that there is necessary flexibility in how the constitutional criteria are applied - the districts need not be exactly equal in population or perfectly compact and they are not absolutely prohibited from crossing natural or political subdivision boundaries, since they must do so if necessary for population parity - those non-constitutional criteria cannot override the constitutional ones. We made this clear in both our 1984 and 1993 decisions. Specifically, we acknowledged the importance of natural and subdivision boundaries and rejected the argument that such things as the promotion of regionalism and the protection of non-official communities of interest could overcome that requirement. The Legislature apparently understood and acquiesced in that ruling, as no attempt was made in the intervening decades to amend the Constitution and, thereby, include those or any other factors in the constitutional framework."

In re Legislative Districting of State, 370 Md. at 321-22, 805 A.2d at 297. Thus, despite the aforementioned restrictions, we have recognized that the political branches, the Governor and General Assembly, are given a wide-berth in formulating a legislative apportionment scheme. So long as the plan they devise does not violate State or Federal law, the political branches may pursue a wide variety of objectives, including preserving community interests, promoting of regionalism, and aiding political allies or injuring political rivals. Id.

Because Article III, § 4 of Maryland Constitution was only ratified in 1972 and the Legislature only reapportions itself once every ten years, this Court has only on four prior occasions considered the constitutional propriety of a legislative apportionment plan under the requirements of Article III, § 4 – In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292 (2002); Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646 (1993); In re Legislative Districting, 299 Md. 658, 475 A.2d 428 (1984); In re Legislative Districting, 271 Md. 320, 317 A.2d 477 (1974). Only in two of those opinions, Legislative Redistricting Cases, 331 Md. 574, 629 A.2d 646 (1993), and In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292 (2002), did we provide substantive analysis of the due regard requirement.

Under the 1992 redistricting plan, there were a total of 18 multi-county crossings statewide, five more than existed under the 1982 plan. See Legislative Redistricting Cases, 331 Md. at 613-14, 629 A.2d at 666-67. Baltimore County was involved in seven of them, five were shared with Baltimore City, and one each shared with Harford County and Howard County. See id. at 613, 629 A.2d at 665. Although the Court sustained the plan against a due regard challenge under Article III, § 4 of the Maryland Constitution, the Court warned that the plan came "perilously close" to violating the due regard requirement because of the relatively high number of border crossings. Id. at 614, 629 A.2d at 666.

The 2002 Enacted Plan increased the number of border crossings from 18 to 22. In In re Legislative Districting of State, 370 Md. 312, 805 A.2d 292 (2002), we considered the constitutional validity of that plan. We specifically addressed the question of whether a constitutional requirement, such as the Article III, § 4's due regard requirement, could be subordinated to non-constitutionally mandated justifications. See id. at 370, 805 A.2d at 326. The State argued that the due regard requirement could be subordinated to such non-constitutional justifications. See id. at 366, 805 A.2d at 324. We disagreed, holding that constitutional requirements, such as the due regard requirement, are mandatory requirements. Id. at 356, 805 A.2d at 318. As such, the due regard requirement, we said, cannot be subordinated to justifications not mandated by the Federal or State Constitutions. Id. at 371-72, 805 A.2d at 327-28. We concluded that the plan contained an excessive number of political subdivision crossings that could not be constitutionally justified. Id. at 368, 805 A.2d at 325. We concluded from this that the plan violated Article III, § 4's requirement that "[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions, " and was, therefore, constitutionally deficient. Id. at 374, 805 A.2d at 328. Due to the then pending 2002 election, there was insufficient time for the Court to return the plan for correction to the General Assembly. We therefore created a districting plan in compliance with State and Federal law that paid no deference to the ordinarily permissible political considerations. Id. at 323, 805 A.2d at 298.[12]

Our legislative apportionment plan reduced the number of political subdivision crossings from 22 under the Governor's 2002 plan to 14, all of which were required to achieve substantial population equality, and eliminated all multi-county districts between Baltimore County and Baltimore City. Baltimore County, based on the 2000 Census, had an adjusted population of 754, 292, five legislative districts entirely within the county, and two shared districts with Carroll, Harford, and Howard Counties, respectively. Baltimore City, which, based on the 2000 Census, had an adjusted population of 651, 154, received six legislative districts all entirely inside of its city limits.

In the decade between the 2000 Census and the 2010 Census, the adjusted population of Baltimore City fell from 651, 154 to 624, 054, while the adjusted population of Baltimore County increased from 754, 292 to 807, 053. The adjusted population of the State according to the 2010 census, as indicated, was 5, 772, 231, so that an equal distribution of population across each of the 47 legislative districts, an "ideal" district (a district representing 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.[13] The remaining legislative district, District 44, [14] crosses into Baltimore County, and is the basis for several of the challenges to the Enacted Plan. [15]

These challengers, as do all challengers to a legislative reapportionment plan, carry the burden of demonstrating the law's invalidity. See In re Legislative Districting of State, 370 Md. at 336, 805 A.2d at 306. Once, however, a proper challenge under Article III, § 4 is made and is supported by "compelling evidence, " the State has the burden of producing sufficient evidence to show that the districts are contiguous and compact, and that due regard was given to natural and political subdivision boundaries. Legislative Redistricting Cases, 331 Md. at 613-14, 629 A.2d at 666.

II.

On April 26, 2012, the petitioner, Christopher Eric Bouchat filed, pro se, a "Motion to Declare Maryland General Assembly Joint Resolution No. 1, 2012 Unconstitutional & Hence Null and Void." The Special Master treated that pleading as a timely challenge, under Article III, § 5 of the Maryland Constitution, to the Enacted Plan. In his petition, the petitioner proposed that the bicameral scheme prescribed in the Federal Constitution for the organization of the Legislative Branch of the Federal Government similarly applies to the organizational structure of the legislative branches of the various states. Noting that Article I, §§ 2 and 3 of the U.S. Constitution provides for a House of Representatives, that, subject to each State having at least one Representative, must be apportioned among the States according to population, and a Senate consisting of two Senators from each state, he reasons that the Federal Constitution impliedly requires every state legislature to establish an identical structure. Proceeding on this premise, he argues that multi-member districts or districts that cross county lines are strictly prohibited, that each county in Maryland and Baltimore City must have at least one Delegate in the House of Delegates and that the Maryland Senate must consist of two Senators from each county and Baltimore City. This Court should correct these errors, the petitioner maintains, through its judicial power by:

"(1) declaring Article III, § 3 of Maryland Constitution, which permits Maryland's multi-member House of Delegates, null and void;
"(2) declaring Article III, § 2 of the Maryland Constitution null and void;
"(3) requiring that all delegates be elected from single-member districts;
"(4) prohibiting House of Delegates subdistricts from crossing county lines; and
"(5) requiring that each county be entitled to one Delegate and that all other Delegate seats be apportioned according to population."

In addition to Article I, §§ 2 and 3 of the Federal Constitution, the petitioner relies on selected portions of the Federalist Papers, [16] the Fourteenth Amendment's Privileges and Immunities Clause, the guarantee of Article IV, § 4 of the U.S. Constitution that each State have a republican form of government, Article II, § 1 of the U.S. Constitution, [17] and the Ninth and Tenth Amendments to that Constitution.

Responding to the State's motion that the petition be dismissed without evidentiary hearing as failing to state a cognizable claim, as a matter of law, the Special Master, noting that this Court had not acted to dismiss the petition and that the petitioner participated in the evidentiary hearing, concluded that the Bouchat petition would be determined upon its merits. The Special Master then proceeded to address those merits. His reasoning and recommendation are as follows:

"Analysis and Recommendation

"Mr. Bouchat's first argument, that the structure of Congress directed in Article I, §§ 2 and 3 of the U.S. Constitution is a required template for the States, is without merit. The text of those provisions, by their clear wording, apply only to the structure of Congress and do not purport in any way to control the structure of State legislatures, much less to require a State legislative apportionment that would produce significant population disparities or to require single-member districts that do not cross county lines. Apart from the lack of any such textual requirement, the Supreme Court, in Reynolds v. Sims, supra, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 expressly rejected 'the applicability of the so-called federal analogy to state legislative apportionment arrangements, ' holding that 'the Founding Fathers clearly had no intention of establishing a pattern or model for the apportionment of seats in state legislatures when the system of representation in the Federal Congress was adopted.' Id. at 572-73, 84 S.Ct. At 1387, 12 L.Ed.2d at 534-35.
"Nor does the guaranty of a republican form of government in Article IV, § 4 of the U.S. Constitution create a Federal Constitutional basis for judicial relief. See Baker v. Carr, 369 U.S. 186, 218-24, 82 S.Ct. 691, 710-13, 7 L.Ed.2d 663, 686-89 (1962), where the Supreme Court flatly rejected Article IV, § 4 as a basis for judicial review of a State's legislative apportionment plan. See also New York v. United States, 505 U.S. 144, 184, 112 S.Ct. 2408, 2432, 120 L.Ed.2d 120, 155 (1992).
"The Federal Constitution constraints on State legislative districting are those arising from the Equal Protection Clause of the Fourteenth Amendment, the principal one being the 'one person/one vote' requirement announced in Reynolds v. Sims, under which, as this Court iterated in Matter of Legislative Districting, supra, 370 Md. at 325, 805 A.2d at 299, "the states are required to apportion both houses of their legislatures on an equal population basis, to assure that one citizen's vote is approximately equal in weight to that of every other citizen." (Emphasis added).
"In light of the State's current demographic distribution, the supervening Constitutional requirement of substantially equal population in both Senate Districts and Delegate Subdistricts absolutely precludes any apportionment scheme under which each county would be entitled to two (or any other equal number of) Senators. Under such a scheme, Kent County, with an adjusted population of 20, 266, and Montgomery County, with an adjusted population of 972, 338, would each be entitled to two Senators, giving each resident in Kent County 48 times the voting strength of a resident in Montgomery County. A similar scheme was expressly rejected in Reynolds v. Sims, and as well in the companion case of Maryland Committee for Fair Representation v. Tawes, supra, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595.
"Unless the size of the House of Delegates were to be expanded five to tenfold, any requirement that each county be entitled to one Delegate would be doomed for the same reason. See Maryland Committee, supra. As Article III, §§ 2 and 3 of the Maryland Constitution provide for 141 members of the House of Delegates, to be elected from 47 Legislative Districts, three from each district, and as there is no Federal Constitutional impediment to that provision, the apportionment of the House of Delegates on any basis other than substantial equality of population is impermissible.
"Finally, in his petition, Mr. Bouchat contends that multi-member Delegate districts are prohibited under Federal Constitutional law and that, to the extent they may be permitted, they may not cross county lines. Multi-member districts, he avers, 'institute voting inequality upon the populous, ' and combining parts of two or more counties in a single district 'caus[es] a minority county section to be dis-enfranchised by the majority county portion of the district.' He offers no facts to show that any particular multi-member or multi-county district has produced that effect, however, other than noting generally that since the Civil War, with limited exceptions, the Democratic Party has controlled the House of Delegates.
"The Supreme Court, on a number of occasions, has expressed concern over certain undesirable features of multi-member districts, especially as they may dilute the ability of racial or ethnic minorities in such districts to elect members of their group to legislative office. So far, however, the Court has made clear that such a district is not per se unlawful under the Equal Protection Clause. The clearest expression of the Court's view is in Whitcomb v. Chavis, 403 U.S. 124, 142-43, 91 S.Ct. 1858, 1868-69, 29 L.Ed.2d 363, 375-76 (1971):
'In Lucas v. Colorado General Assembly, 377 U.S. 713 (1964), decided with Reynolds v. Sims, we noted certain undesirable features of the multi-member district but expressly withheld any intimation 'that apportionment schemes which provide for the at-large election of a number of legislators from a county, or any political subdivision, are constitutionally defective.' 377 U.S. at 731, n.21.
Subsequently, when the validity of the multi-member district, as such, was squarely presented, we held that such a district is not per se illegal under the Equal Protection Clause. [citations omitted]. That voters in multi-member districts vote for and are represented by more legislators than voters in single-member districts has so far not demonstrated an invidious discrimination against the latter. But we have deemed the validity of multi-member district system justiciable, recognizing also that they may be subject to challenge where the circumstances of a particular case may 'operate to minimize or cancel out the voting strength of racial or political elements of the voting population.[']
'[W]e have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements.'
"See also Thornburg v. Gingles, 478 U.S. 30, 48, 106 S.Ct. 2752, 2765, 92 L.Ed.2d 25, 45 (1986); In re Legislative Redistricting, supra, 299 Md. at 673, 475 A.2d at 435; Legislative Redistricting Cases, supra, 331 Md. at 606, 629 A.2d at 662.
"The additional references in Mr. Bouchat's pre-hearing memorandum to Article I, § 1 of the Federal Constitution (the method of electing the President) and the Ninth and Tenth Amendments are to no avail. He does not explain how the Enacted Plan violates any of the provisions, and none are apparent.
"As Mr. Bouchat, who has the burden of production and persuasion on this issue, has failed to show that any multi-member district provided for in the Enacted Plan would have the effect of diluting or canceling the voting strength of any racial or political element, he has failed to make a case for declaring any such district unlawful. With respect to the complaint about a multi-member district including parts of more than one county, there is no Federal prohibition against such a district, but is more a matter of compliance with the requirement in Article III, § 4 of the Maryland Constitution that, in the creation of any district or subdistrict, due regard be given to natural and political boundaries. As the Court has made clear, however, if a multi-county district or subdistrict is created in order to gratify some supervening requirements - equivalent population, compliance with the Voting Rights Act - then the 'due regard' requirement may be regarded as either yielding or complied with. It is 'the most fluid of the constitutional component outlined § 4.' In re Legislative Districting, supra, 299 Md. at 681, 475 A.2d at 439.
"For these reasons, it is recommended that Mr. Bouchat's petition be denied."

(Footnotes omitted) (emphasis in original).

The petitioner excepts to the recommendation of the Special Master, arguing that the "one person, one vote" doctrine exists in violation of rights granted under the Fourteenth Amendment and Article IV, § 4 of the United States Constitution. In support of his exception he notes that our government is a democratically elected federalist republic, which protects the voting rights of citizens who live in less populated political sub-divisions through the Electoral College and the balance of representation in the U.S. Senate. Without clear or detailed explication, he argues that, under the Fourteenth Amendment, "voting rights" must be uniform whether in the federal or state system. In addition to his general exception to the Special Master's recommendation, the petitioner specifically argues that the Special Master failed to address adequately the purported impropriety of having multi-member districts with varying numbers of Delegates. He argues, again without clear explication, that this apportionment structure violates every premise of the "one person, one vote" principle and, in addition, offends the Fourteenth Amendment and Article IV, § 4 of the United States Constitution.

We conclude that the petitioner has not met the required burden to properly challenge the Enacted Plan. The petitioner's challenge is not supported, as required under Article III, § 4, by "compelling evidence, " "demonstrat[ing] that the plan has subordinated mandatory constitutional requirements to substantial improper alternative considerations." Matter of Legislative Districting, 370 Md. at 373, 805 A.2d at 328. Accordingly, the petitioner's exceptions to the Special Master's findings and recommendations are without merit and we, therefore, adopt the Special Master's recommendation to deny the Bouchat petition.

III.

A.

The petitioners, Delores Kelley and James Brochin, are registered voters and incumbent members of the Maryland Senate from Baltimore County.[18] They claim that the Enacted Plan violates Article III, § 4's requirement that "[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions" (also referred to as the "due regard requirement"). This is so, they contend, because the Enacted Plan contains a border crossing between political subdivisions, Baltimore City and Baltimore County, not required by law and allegedly constructed for the purpose of retaining six state senators in Baltimore City.

The petitioners alleged in their petition that the reconfiguration of Legislative Districts 10, 42, and 44 in the Enacted Plan violates the due regard requirement of Article III, § 4 of the Maryland Constitution. They argued that, because the population of Baltimore City justifies no more than five Legislative Districts, while the population of Baltimore County entitles it to at least six Legislative Districts, neither the border crossing nor the extension of District 44 into Baltimore County was necessary to accomplish either population equality or voting rights protection for any racial or ethnic minority. For this reason, the petitioners further argued, the effect of the border crossing and extension is to underpopulate the Baltimore City Districts, in order to make it possible that Baltimore City will be able to elect six Senators, rather than five. The petitioners' request is that this Court hold that the provisions of the Enacted Plan, relating to Baltimore City and Baltimore County, violate the due regard requirement of Article III, § 4, and that this Court create a new map that removes the subdivision crossing between Baltimore City and Baltimore County.

The State responded to the petitioners' challenge with a motion to dismiss and, in the alternative, for favorable summary disposition. It argued, in support of its dispositive motions, that a single crossing between one county into another, such as the one between Baltimore City and Baltimore County in the Enacted Plan, cannot alone determine whether the Enacted Plan satisfies the due regard requirement. The State asserted, furthermore, that this Court has never determined the legal validity of a reapportionment scheme on the basis of a single border crossing. Instead, the State said this Court's due regard jurisprudence considers the constitutional validity of a reapportionment plan "holistically, " meaning on a statewide basis. Proceeding on this premise, noting, in that regard, that the petitioners only challenged the validity of the Enacted Plan in one portion of the State, it contended that the petitioners failed to make a valid legal challenge. The State also observed that, because the Enacted Plan contained fewer border crossings, statewide, than earlier legally valid apportionment plans, there cannot exist a violation of the due regard requirement in the present plan.

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 Redistricting, 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 ...


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