United States District Court, D. Maryland
Christopher Eric Bouchat, Woodbine, Maryland, pro se, for
Doyle Bernhardt and Jeffrey Lewis Darsie, OFFICE OF THE
ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Niemeyer, Circuit Judge, and Hollander and Russell, District
Judges; Judge Hollander wrote the Opinion, in which Judges
Niemeyer and Russell joined.
Lipton Hollander Judge.
Eric Bouchat, the self-represented plaintiff, challenges the
constitutionality of Maryland's most recent legislative
redistricting plan, which was proposed in 2011 and went into
effect in February 2012 (the “Plan” or the
“2012 Plan”). See Joint Resolutions 1
and 2, Acts of 2012; Md. Code (1984, 2004 Repl. Vol.),
§§ 2-201, 2-202 of the State Government Article
(“S.G.”); see also S. G. §§
2-201, 2-202 (2014 Repl. Vol., 2015 Supp.); In the Matter
of 2012 Legislative Districting of the State,
436 Md. 121, 128, 80 A.3d 1073, 1076-1077 (2013). Plaintiff
has named as defendants the State of Maryland; Linda H.
Lamone, State Administrator of Elections; and David J.
McManus, Jr., Chair of the Maryland State Board of Elections
(collectively, the “State”). According to Mr.
Bouchat, the Plan violates his constitutional rights, both as
a voter and as an unsuccessful Republican candidate in 2014
for the Maryland House of Delegates. ECF 31, Amended
Complaint, ¶ 26.
have moved to dismiss the Amended Complaint, which is
supported by a memorandum. ECF 32; ECF 32-1 (collectively,
“Motion” or “Motion to Dismiss”).
Citing Fed.R.Civ.P. 12(b)(6), they assert that the Amended
Complaint fails to state a claim; it is barred by res
judicata; and the claims lodged against the State, and most
of the claims asserted against its officials, are barred by
the Eleventh Amendment and principles of sovereign immunity.
Plaintiff opposes the Motion. ECF 35
(“Opposition”). Defendants have not filed a reply
and the time to do so has expired. See Local Rule
three-judge panel, convened pursuant to 28 U.S.C. §
2284, heard argument on the Motion on July 12, 2016. See
Shapiro v. McManus, ___U.S.___, 136 S.Ct. 450 (2015).
For the reasons set forth below, we shall grant the Motion to
III, § 5 of the Maryland Constitution requires that, in
the second year following each United States Census, the
Governor and the State Legislature shall “reapportion
the State's legislative representation consistent with
the State's current demographics.” In the
Matter of 2012 Legislative Districting of the State, 436
Md. 121, 126, 80 A.3d 1073, 1075 (2013) (hereinafter,
“Legislative Districting”). Article III,
§ 5 of the Maryland Constitution states, in part:
“Following each decennial census of the United States
and after public hearings, the Governor shall prepare a plan
setting forth the boundaries of the [State's 47]
legislative districts for electing of the members of the
Senate and the House of Delegates.” The plan must
conform with Sections 2, 3, and 4 of Article III.
Id. at 127, 80 A.3d at 1076.
in 2011, then Governor Martin O'Malley appointed five
individuals to serve on the Governor's Redistricting
Advisory Committee (“GRAC”), for the purpose of
holding public hearings concerning the proposed redistricting
of Maryland's congressional and legislative districts and
the drafting of a proposed redistricting plan. On December 16,
2011, after twelve public hearings, the GRAC published its
plan for the State's 47 legislative districts.
Legislative Districting, 436 Md. at 128, 80 A.3d at
1076. During the 2012 session of the Maryland General
Assembly, the Plan was submitted for approval to both the
Maryland House of Delegates and the Maryland Senate as Joint
Resolution No. 1. Id., 80 A.3d at 1076-77. The Plan
became law on February 24, 2012, codified as revisions to
S.G. §§ 2-201 and 2-202. ECF 31, Amended Complaint,
¶¶ 11-12; Legislative Districting, 436 Md.
at 127, 80 A.3d at 1077.
anticipation of challenges to the newly enacted Plan, the
Maryland Court of Appeals appointed Judge Alan M. Wilner, a
retired member of that court, as a Special Master to conduct
hearings and to address any challenges. Legislative
Districting, 436 Md. at 129, 80 A.3d at 1077. A handful
of challenges to the Plan were filed by the deadline of May
1, 2012, including a Petition filed by Mr. Bouchat in April
2012 (the “Petition”). Id. at 129, 138,
80 A.3d at 1077, 1082.
Bouchat is a resident of Carroll County, Maryland (ECF 31,
¶ 1), and is a “Republican-registered
voter.” Id. ¶ 8. Before the 2012 Plan
took effect, he resided in Legislative District 9B, comprised
of constituents living only in Carroll County and represented
by a single member of the House of Delegates. Id.
¶ 13. After enactment of the 2012 Plan, Mr.
Bouchat's residence was redistricted to Legislative
District 9A, which plaintiff describes as a
“cross-county two-member district. . . .”,
including both Carroll and Howard counties. Id.
Petition, Mr. Bouchat argued, inter alia, that based
on several constitutional principles, the Maryland Court of
Appeals should “requir[e] that all delegates be elected
from single-member districts”; “prohibit House
of Delegates subdistricts from crossing county lines”;
and “requir[e] that each county be entitled to one
Delegate and that all other Delegate seats be apportioned
according to population.” Legislative
Districting, 436 Md. at 138-39, 80 A.3d at 1082-83. He
also complained that the Plan violated Article IV, § 4
of the Federal Constitution, and relied, inter alia,
on Article 1, §§ 2 and 3 of the United States
Constitution, as well as Article II, § 1 and the Ninth
and Tenth Amendments to the Constitution. Id. at
139, 80 A.3d at 1083.
September 2012, the Special Master held a hearing to consider
all challenges to the Plan. Id. at 129, 80 A.3d at
1077. Evidence was presented, including expert reports.
Id. Thereafter, the Special Master issued a report
in which he recommended upholding the Plan.
As to Mr. Bouchat, the Special Master said, in part,
id. at 139-143, 80 A.3d at 1083-85:
“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).
* * *
Unless the size of the House of Delegates were to be expanded
five to ten-fold, 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
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.
* * *
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 ...