2022 Legislative Districting

In the Matter of the 2022 Legislative Districting of the State
Misc. Nos. 21, 24, 25, 26, and 27, September Term 2021
Constitutional Law – Redistricting of General Assembly – Role of the Court. The
Maryland Constitution assigns the task of districting the General Assembly to the political
branches of State government – the Governor and the General Assembly. Once a
districting plan is adopted pursuant to the constitutional process and an objection is made
that the plan fails to comply with the State and federal constitutional criteria, the Court’s
role is to determine whether the adopted plan complies, not whether a better plan could be
designed.
Constitutional Law – Redistricting of General Assembly – Burden of Proof. A
districting plan enjoys a presumption of validity. One who challenges a plan has the burden
of presenting compelling evidence of a violation of the constitutional criteria. If a
challenger presents evidence satisfying that standard, the State must produce sufficient
evidence of compliance with the constitutional criteria.
Constitutional Law – Redistricting of General Assembly – Compactness. The
preeminent criterion for districting of State legislative districts in Article III, §4 of the
Maryland Constitution is that each district have “substantially equal population.” The other
criteria for districting in the State Constitution – compactness, contiguity, and due regard
for natural and political subdivision boundaries – yield to that command and to the
proscription against racial or ethnic discrimination in the federal Voting Rights Act and, in
practice, can be in tension with one another. Thus, the fact that a district is oddly-shaped,
as the State and many of its subdivisions are, does not by itself establish a violation of the
compactness requirement. A comparison of the shape of a district in Maryland to districts
in other states is not particularly enlightening, especially when no comparison is made to
the districts in past Maryland plans found to be compliant.
Constitutional Law – Redistricting of General Assembly – Contiguity and Due
Regard for Natural Boundaries and Boundaries of Political Subdivisions. The fact
that a river bisected one of the subdistricts of a district in southern Maryland did not
establish that the district violated the contiguity and due regard provisions of Article III,
§4 of the Maryland Constitution.
Constitutional Law – Redistricting of General Assembly – Legislative Privilege. The
absolute legislative privilege derived from the Maryland Constitution that protects
legislators and their staff from being compelled to explain their legislative conduct or
events that occurred in a legislative session may be invoked in litigation challenging
legislation that accomplishes State legislative redistricting. That privilege could be
invoked in response to discovery requests concerning communications with staff about
challenged districts and criteria entered into a computer program.
Constitutional Law – Redistricting of General Assembly – Mix of Single-Member and
Multi-Member Subdistricts. Article III, §3 of the Maryland Constitution authorizes the
use of a mix of multi-member and single-member districts in a State legislative districting
plan. Unless such districts are used in a particular instance to invidiously cancel or
minimize the voting potential of racial or ethnic minorities, a districting plan may include
them.
Constitutional Law – Redistricting of General Assembly – Allocation of Incarcerated
Individuals to Domicile Prior to Incarceration. A State statute that provides for the re-
allocation of incarcerated individuals to their domiciles for population counts used in
districting is constitutional, even if the reduction in the population count for a jurisdiction
where one or more prisons is located means that a districting plan must cross a county line
in order to comply with the “substantially equal population” criterion for legislative
districts.
Argued: April 13, 2022
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Nos. 21, 24, 25, 26, and 27
September Term, 2021
IN THE MATTER OF
THE 2022 LEGISLATIVE DISTRICTING
OF THE STATE
*Getty, C.J.,
Watts
Hotten
Booth
Biran
Gould
McDonald, Robert N.
(Senior Judge,
Specially Assigned),
JJ.
Opinion by McDonald, J.
Getty, C.J., Biran, and Gould, JJ., dissent.
Filed: August 31, 2022
*Getty, C.J., now a Senior Judge, participated in
the hearing and conference of this case while an
active member of this Court. After being
recalled pursuant to Maryland Constitution,
Article IV, §3A, he also participated in the
Pursuant to Maryland Uniform Electronic Legal
Materials Act
decision and adoption of this opinion.
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-08-31 16:32-04:00
Suzanne C. Johnson, Clerk
The Maryland Constitution requires that the boundaries of the State’s legislative
districts be adjusted after each decennial national census. Those adjustments are necessary
to ensure that each district remains reasonably equal in population following any
population shifts that have occurred in the State since the previous census. Any changes
to the legislative districts to account for population shifts must be made with an eye on
other State and federal Constitutional requirements concerning districting.
The Maryland Constitution assigns the decisions on how to re-draw district lines to
the political branches of State government – the Governor and the General Assembly.
Inevitably, there are disputes about the best way to re-draw the district maps and – more
importantly for our purposes – about whether the new districts comply with the
constitutional criteria. And so, every 10 years, one or more challenges are asserted to the
latest legislative districting plan. It falls to this Court, as directed by the State Constitution,
to consider those challenges, to decide whether burdens have been satisfied and challenges
have merit and, if the challenges are found to have merit, to determine the appropriate
relief.
The Bottom Line
This case concerns the most recent districting plan adopted by the General
Assembly. On the tightest timeline in the modern history of redistricting, the General
Assembly adopted a new plan for State legislative districts earlier this year. The validity
of that plan was promptly challenged by four separate petitions. Consistent with past
practice, the Court enlisted the assistance of a special magistrate to conduct a hearing and
provide findings of fact and conclusions of law concerning the issues raised by the
challengers. At the conclusion of that process, the special magistrate recommended that
the challenges be rejected.
The challengers filed exceptions to the special magistrate’s recommendation. On
April 13, 2022, the Court heard oral arguments on those exceptions and, later that day,
denied the petitions by order with an opinion to follow. This is that opinion.
The Roadmap
This Court’s opinions analyzing prior challenges to Maryland redistricting plans
occupy 358 pages of the Maryland Reports. We are about to add to that number. To aid
the reader in navigating this opinion, we offer this roadmap (For those readers who rely on
GPS devices for navigation and do not know what a roadmap is, these are the turn-by-turn
directions).
Part I of this opinion (pp. 3-23) describes the constitutional provisions governing
redistricting and in particular the criteria for redistricting plans as construed in this Court’s
prior decisions. Part II of this opinion (pp. 23-42) provides an overview of the redistricting
process in the current cycle, beginning with the release of 2020 census data, the actions
taken by the Governor and General Assembly in the adoption of a redistricting plan, the
petitions challenging that plan, and the proceedings in this Court to resolve those
challenges. Part III of this opinion (pp. 42-46) outlines the role of the Court in assessing
challenges to a redistricting plan and the burdens of proof that apply. Part IV of this opinion
(pp. 47-100) discusses in detail the proceedings and evidence relating to the petition filed
in Miscellaneous No. 25, the primary challenge to the redistricting plan. Part V (pp. 100-
106) and Part VI (pp. 106-111) of this opinion do the same for the petitions filed in
2
Miscellaneous No. 26 and Miscellaneous No. 27, respectively. Part VII of this opinion
(pp. 111-112) briefly summarizes the disposition of the petitions challenging the
redistricting plan. Appendices attached to this opinion include the Court’s April 13, 2022
order and maps displaying State legislative districts under the redistricting plan and under
the previous redistricting plan approved 10 years ago.
Dissenting opinions have been filed by former Chief Judge Getty and Judge Gould
(both joined by Judge Biran). For ease of reference, we will refer to Chief Judge Getty’s
opinion, the primary dissent, as “Dissent” and Judge Gould’s opinion, which focuses on
specific issues, as “Dissent (Gould, J.).”
I
Districting the General Assembly
A. Historical and Constitutional Context
A brief history of State legislative redistricting in Maryland establishes the historical
and constitutional context for this case.
1. Historical Context
As of the early 1960s, the Maryland Constitution assigned specific numbers of
legislators to each county and Baltimore City, but did not set forth any general criteria for
the design of legislative districts.1 In 1964, the Supreme Court held that the existing
1
At that time, the State Constitution provided for one senator from each county and
divided Baltimore City into six legislative districts, each with one senator. Maryland
Constitution, Article III, §2 (1963 Repl. Vol.). The Constitution also listed specific
numbers of delegates for each county and for the six legislative districts of Baltimore City.
Id., Article III, §5. As the only legislative districts not coincident with county boundaries
were the six districts in Baltimore City, the Constitution provided guidance only on the
3
apportionment of the Maryland Senate violated the one-person, one-vote principle derived
from the Equal Protection Clause of the Fourteenth Amendment. Maryland Committee for
Fair Representation v. Tawes, 377 U.S. 656 (1964).
During 1967 and 1968, a State constitutional convention was held to devise a new
Maryland Constitution. Among other things, the new constitution proposed by that
convention would have remedied the constitutional defect in the apportionment of the
General Assembly. The proposed constitution was ultimately rejected by the voters, but
several elements of it were adopted in 1970 and 1972 as amendments to the existing 1867
Maryland Constitution. See Dan Friedman, The Maryland State Constitution: A Reference
Guide (2006) at 9-10. Among those amendments were provisions, specific to State
legislative redistricting, responsive to the Supreme Court decision in Tawes. See Chapter
785, Laws of Maryland 1969, ratified November 3, 1970; Chapter 363, Laws of Maryland
1972, ratified November 7, 1972. Those provisions currently appear in Article III, §2
through §5 of the Maryland Constitution.
design of those districts – in particular, that those six districts were to be “near as may be
of equal population and of contiguous territory.” Id., Article III, §2. The Constitution also
authorized redistricting of the City districts “from time to time” to ensure compliance with
those criteria. Id., Article III, §4.
4
2. State Constitutional Standards and Process
The Legislative Department
Article III of the Maryland Constitution pertains to the Legislative Branch – or, as
the article is entitled, the “Legislative Department” – of State government.2 The first seven
sections of that Article concern the make-up of the General Assembly. Section 1 specifies
that the General Assembly is a bicameral legislature, consisting of a Senate and a House of
Delegates. Section 2 provides that the Senate shall have 47 members and the House of
Delegates shall have 141 members. Under §3, there are to be 47 legislative districts, each
containing one senator and three delegates, with the proviso that, instead of representing
the district at large, the three delegates may be apportioned among three single-member
subdistricts or two districts (one with one delegate; the other with two delegates).3
Districting Criteria
Most pertinent to this case, §4 sets forth the criteria for determining the districts that
the State senators and delegates represent:
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.
Maryland Constitution, Article III, §4.
2
Our discussion of “legislative redistricting” in this case pertains only to the
districting of the General Assembly under Article III. This case does not involve the
separate process of drawing districts for seats in the United States Congress.
3
“Nothing herein shall prohibit the subdivision of any one or more of the legislative
districts for the purpose of electing members of the House of Delegates into three (3)
single-member delegate districts or one (1) single-member delegate district and one (1)
multi-member delegate district.” Maryland Constitution, Article III, §3.
5
The Process
Finally, §5 sets forth a process for creating legislative districts after each decennial
census and provides for judicial review if there are challenges to the plan that result from
that process.
Section 5 provides that the Governor is to take the first step by holding public
hearings and preparing a plan that sets forth the boundaries of the legislative districts in
conformity with the other provisions of Article III described above. The Governor is to
submit that plan to the General Assembly by the beginning of the legislative session in the
second year following the census and may call a special session to present the plan.
The General Assembly may, by joint resolution, adopt its own plan setting the
boundaries of State legislative districts, again in conformity with the other provisions of
Article III.4 If a plan is adopted by joint resolution of the General Assembly by the 45th
day of the regular session – whether the Governor’s plan or the General Assembly’s own
plan – that plan becomes law. If the General Assembly does not adopt a plan by that
deadline, the Governor’s plan becomes law by default.
Challenges to a Plan
Section 5 further provides that any registered voter may file a petition with the Court
of Appeals challenging the constitutionality of whichever plan has become law. That
section also confers original jurisdiction on the Court of Appeals to consider any such
4
Because the Constitution provides for the General Assembly’s plan to become law
through the Legislature’s adoption of a joint resolution rather than passage of a bill, it is
not subject to veto by the Governor. See generally Prince George’s County v. Thurston,
___ Md. ___, ___ (filed July 13, 2022), 2022 WL 2709752 at *14-16.
6
petition, and to “grant appropriate relief” if the Court finds the plan to be constitutionally
deficient. Section 5 does not further specify the procedures to be followed by the Court in
conducting such judicial review.
3. Judicial Review of Past Plans by the Court of Appeals
The plan challenged and under review in this case is the sixth plan to be adopted
pursuant to the State constitutional amendments of the early 1970s. In each previous cycle,
petitions were filed challenging the relevant plan. In each instance, this Court reviewed
the plan and issued an opinion explaining the standard of review that the Court applied to
those challenges and the Court’s conclusions:
1973 Districting. Following the 1970 census, the Court held that the Governor’s
plan was invalid for procedural reasons and, after remedying the procedural defect,
promulgated a Court plan largely based on the Governor’s plan. See In re Legislative
Districting, 271 Md. 320 (1974) (“1973 Districting”); see also State Administrative Board
of Election Laws v. Calvert, 272 Md. 659, 664 (1974) (“Calvert”) (rejecting a challenge to
plan promulgated by the Court largely based on Governor’s plan).5
1982 Districting. Following the 1980 census, the Court upheld the Governor’s plan.
In re Legislative Districting, 299 Md. 658 (1984) (“1982 Districting”).
5
In the first redistricting process under the constitutional amendments of the early
1970s, the General Assembly did not adopt its own plan and accordingly the Governor’s
plan became the operative plan. However, the Governor had failed to hold public hearings
as required by Article III, §5. After remedying the procedural defect by providing for a
hearing on the plan, the Court promulgated a plan essentially identical to the original plan
“[r]ather than go off on a project of our own.” Calvert, 272 Md. at 664.
7
1992 Districting. Following the 1990 census, the Court upheld the Governor’s plan.
Legislative Redistricting Cases, 331 Md. 574 (1993) (“1992 Districting”).
2002 Districting. Following the 2000 census, the Court held that the Governor’s
entire plan violated the State constitutional requirement of due regard for the boundaries
of political subdivisions and adopted its own plan based on a plan proposed by one of the
challengers. In re Legislative Districting of the State, 369 Md. 601 (2002) (“2002 Court
Redistricting Plan”). The Court elaborated its holding in a subsequent opinion. In re
Legislative Districting of State, 370 Md. 312, 374 (2002) (“2002 Districting”).
2012 Districting. Following the 2010 census, the Court upheld the Governor’s plan.
In re 2012 Legislative Districting, 436 Md. 121 (2013) (“2012 Districting”).
In each of those cases, the challenges alleged violations of federal and State
standards for designing State legislative districts. In each case, the challenges were based
entirely on the specifications of district boundaries in the respective plans and on
statements made during public hearings on those plans – i.e., their legislative histories.
See, e.g., 2012 Districting, 436 Md. at 175 & n.33 (referring to the lack of evidence of
“discriminat[ion] on the basis of population density, region, partisanship and race”).
B. Standards for Drawing Districts
1. Requirements Under Federal Law
Under both the Supremacy Clause of the federal Constitution and Article 2 of
Maryland’s Declaration of Rights, federal law takes precedence over an inconsistent
Maryland law. Maryland Committee for Fair Representation v. Tawes, 228 Md. 412, 416-
8
18 (1962), rev’d on other grounds, 377 U.S. 656 (1964). That means that a redistricting
map must conform to federal constitutional and statutory provisions as well as State law.
Substantially Equal Population
The Fourteenth Amendment to the United States Constitution embodies the one-
person, one-vote principle. As applied to districting, that means that each of the districts
must contain a nearly equal number of residents, and that any single-member or two-
member delegate subdistrict must contain a number of residents nearly equal to the number
of residents in other subdistricts of the same type. See 2012 Districting, 436 Md. at 130-
31. That standard is deemed to have been met if the population variation between any two
districts, or type of subdistrict, does not exceed 10 percent. See Brown v. Thomson, 462
U.S. 835, 842 (1983); 1992 Districting; 331 Md. at 592-94.
Prohibition against Racial or Ethnic Discrimination
“[I]ntentional 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.” 2012 Districting, 436 Md. at 131,
citing Shaw v. Reno, 509 U.S. 630 (1993). In addition, the federal Voting Rights Act
prohibits “[l]egislative apportionment plans that effectively disenfranchise or abridge the
right to vote of any citizen on account of ‘race or color.’” 2012 Districting, 436 Md at 132,
referring to 52 U.S.C. §10301. A district violates Section 2 of that Act when it “dilute[s]
the voting strength of politically cohesive minority group members, whether by
fragmenting the minority voters among several districts where a bloc-voting majority can
routinely outvote them, or by packing them into one or a small number of districts to
9
minimize their influence in the districts next door.” Johnson v. De Grandy, 512 U.S. 997,
1007 (1994); see also Baltimore County Branch of NAACP v. Baltimore County, No. 21-
CV-03232-LKG, 2022 WL 657562, at *4 (D. Md. Feb. 22, 2022), modified, No. 21-CV-
03232-LKG, 2022 WL 888419 (D. Md. Mar. 25, 2022) (addressing a Voting Rights Act
claim concerning Baltimore County’s redistricting map). A relevant consideration in
assessing the opportunity of members of a racial or ethnic group to participate in the
political process and to elect representatives of their choice is “whether the number of
districts in which the minority group forms an effective majority is roughly proportional to
its share of the population in the relevant area.” League of United Latin Am. Citizens v.
Perry, 548 U.S. 399, 426 (2006).
Effect of “Political Gerrymandering”
The one-person, one-vote principle “does not mean that each party must be
influential in proportion to its number of supporters.” Rucho v. Common Cause, 139 S. Ct.
2484, 2501 (2019). With regard to claims of partisan gerrymandering, the Supreme Court
has “‘clearly foreclose[d] any claim that the Constitution requires proportional
representation [by a political party] or that legislatures in reapportioning must draw district
lines to come as near as possible to allocating seats to the contending parties in proportion
to what their anticipated statewide vote will be.’” Id. at 2499, quoting Davis v. Bandemer,
478 U.S. 109, 130 (1986). Thus, “[i]t hardly follows from the principle that each person
must have an equal say in the election of representatives that a person is entitled to have
his political party achieve representation in some way commensurate to its share of
statewide support.” Id. at 2501. The Rucho Court observed that, “while it is illegal for a
10
jurisdiction to depart from the one-person, one-vote rule, or to engage in racial
discrimination in districting, ‘a jurisdiction may engage in constitutional political
gerrymandering.’” Id. at 249, quoting Hunt v. Cromartie, 526 U.S. 541, 551 (1999).
2. Maryland Constitutional Criteria
As noted above, Article III, §4 of the State Constitution specifies the criteria to be
considered for State legislative districts: (1) substantially equal population; (2) adjoining
territory, sometimes referred to as contiguity; (3) compactness; and (4) “due regard” for
natural boundaries and for boundaries of political subdivisions.
The Court has recognized the “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.” 2002 Districting, 370 Md. at 322(2002); see also, e.g., 1982 Districting, 299 Md. at 680 (“[T]he compactness requirement
must be applied in light of, and in harmony with, the other legitimate constraints which
interact with and operate upon the constitutional mandate that districts be compact in
form.”).
Substantially Equal Population
The Maryland Constitution “does not impose a stricter standard for population
equality than the 10% rule imposed by the Fourteenth Amendment.” 1992 Districting, 331
Md. at 600-01. We therefore apply that 10 percent rule. It is the “predominant
constitutional requirement” in Article III, §4 and the “preeminent constraint on the
11
compactness provision” and the other criteria in Article III, §4. 1982 Districting, 299 Md.
at 680 n.14, 688.
Population counts come in whole numbers and are therefore readily susceptible to
quantitative comparisons. If one divides the total State population by the number of
districts, one can calculate the population of an “ideal” district and, with some simple
division, the “ideal” subdistrict of a particular type. The figure for an ideal district can be
compared to the population count of a proposed district to determine whether the proposed
district would violate the 10 percent rule. Past plans reviewed by this Court have complied
with that “preeminent constraint,” challenges have focused on other criteria, and there is
relatively little analysis of the “substantially equal population” requirement in the
Maryland redistricting case law.
The practical impact of the “substantially equal population” requirement is that
unequal changes in population across the State will affect the geographic boundaries of
multiple districts. For example, a district that has experienced slower growth or a loss of
population compared to the rest of the State will have to pull population from adjoining
districts – that is, expand geographically into areas previously part of the adjoining districts
– to maintain parity with the “ideal” district. Conversely, a district that has experienced a
disproportionate growth in population will need to shed population to adjoining districts –
that is, shrink geographically and cede area to other districts – to maintain parity with the
“ideal” district. In both cases, there can be a domino effect as the boundaries of the
adjoining districts are adjusted to add or shed population to stay within the 10 percent rule.
As adjustments to boundaries are made to comply with this “predominant constitutional
12
requirement,” attention must also be paid to the geographic criteria of Article III, §4 –
contiguity, compactness, and due regard to natural and political subdivision boundaries.
Contiguity
This Court has interpreted the contiguity criterion to require that “there be no
division between one part of a district’s territory and the rest of the district; in other words,
contiguous territory is territory touching, adjoining and connected, as distinguished from
territory separated by other territory.” 1982 Districting, 299 Md. at 675-76. The Court has
acknowledged that it was the intent of the original drafters of the “adjoining territory”
provision that a State legislative district may not cross the Chesapeake Bay but may cross
other bodies of water, such as rivers and estuaries. 2002 Districting, 370 Md. at 344 (noting
that the Committee of the Whole of the 1968 Constitutional Convention had stated its
intention: “that under the interpretation of the words adjoining and compact ... a
redistricting commission or the General Assembly could not form a district, either a Senate
district or a Delegate district by crossing the Chesapeake Bay”). The separation of land
areas in a district by rivers does not render those areas non-contiguous. See Calvert, 272
Md. at 666.6 Since the 1970s, challenges to redistricting plans have generally not focused
6
In that case, the Court noted that:
Although Talbot and Caroline Counties adjoin and are in the same legislative
district, there are but three points of connection, fixed bridges at Hillsboro
and New Bridge across the Tuckahoe, and a drawbridge across the Choptank
at Dover Bridge; and although Talbot and Dorchester Counties adjoin, their
only connection is the mile-long drawbridge across the Choptank at
Cambridge opened in the late 1930s. Prior to that there was no connection.
Dorchester and Wicomico Counties border each other from the Chesapeake
Bay to the Delaware line, being divided by Holland Strait, Tangier Sound,
13
on the requirement of contiguity, and that criterion has not received much discussion in the
resulting opinions.
Compactness
The Court discussed the compactness criterion at some length in dealing with
challenges to several districts as non-compact in the 1980s. 1982 Districting, 299 Md. at
676-81, 686-92. This criterion has not been a major factor in the challenges made during
the three subsequent cycles. It is the primary criterion at issue this year.
In applying the compactness requirement in Maryland, the Court has viewed it “as
a requirement for a close union of territory (conducive to constituent-representative
communication), rather than as a requirement which is dependent upon a district being of
any particular shape or size.” 1982 Districting, 299 Md. at 688. In light of the fact that
the State’s geography – its “bizarre geographic configuration” – “inhibits the geometric
fashioning of districts of symmetrical compactness,” the Court concluded that “it was
hardly the purpose of the compactness requirement to promote aesthetically pleasing
district configuration forms.” Id. at 687. Thus, an oddly shaped district does not in itself
establish a violation of Article III, §4. Id. Instead, “an affirmative showing is ordinarily
required to demonstrate that such districts were intentionally so drawn to produce an unfair
political result, that is, to dilute or enhance the voting strength of discrete groups for
and the Nanticoke River, with the only road connections being drawbridges
at Vienna and Sharptown across the Nanticoke.
Calvert, 272 Md. at 666. Without further analysis, the Court upheld the inclusion of that
district in the plan.
14
partisan political advantage or other impermissible purposes.” Id. In other words, there
must be a showing of “flagrant partisan abuse of the redistricting process” before the Court
will invalidate a plan for failing to satisfy compactness.7 See 1992 Districting, 331 Md. at
611.
Although this Court has noted that, in theory, an ideal district might be in the shape
of a circle, with its entire boundary equidistant from its center, the Court has found “it
obvious that a mathematical formulation for determining whether a particular district is
unconstitutionally noncompact was not within the contemplation of the constitutional
framers when proposing adoption of §4 of Article III of the Maryland Constitution.” 1982
Districting, 299 Md. at 687. Thus, as this Court has previously explained, the
“compactness” methods that theoreticians have devised as measures of compactness that
may be applicable to certain other states do not yield much information when applied to
districts in Maryland. Id.Due Regard for Natural and Political Subdivision Boundaries
The two “due regard” criteria are often considered together, perhaps because
political and natural boundaries often coincide.8 In Article III, §4, “political subdivisions”
7
In surveying decisions of courts in other states with a compactness requirement
for legislative districting, this Court noted that many of those courts held that a
compactness requirement is “intended to prevent political gerrymandering.” 1982
Districting, 299 Md. at 675. The Court further noted that those cases recognize that the
compactness requirement is “subservient” to the “dominant federal constitutional
requirement of substantial equality of population.” Id. at 680.
8
For example, Howard County is separated from Montgomery County by the
Patuxent River and from Baltimore County by the Patapsco River; the Susquehanna River
separates Cecil County from Harford County.
15
refers to counties and municipalities, which have clearly defined boundaries. See 1982
Districting, 299 Md. at 681 n.15.
The Court has referred to four purposes served by the “due regard” criteria:
• to preserve those fixed and known features which enable voters to
maintain an orientation to their own territorial areas
• to recognize the importance of counties in Maryland’s
governmental structure
• to enable the residents of a political subdivision that does not have
home rule, but rather depends on the General Assembly for many
of its laws, to effectively work with a legislator with knowledge of
the subdivision
• to avoid the danger that representatives “may face conflicting
allegiances as to legislative initiatives which benefit one of their
constituencies at the expense of the other”
See 2002 Districting, 370 Md. at 357-63; 1992 Districting, 331 Md. at 611-15. At the same
time, the Court has questioned the proposition that a delegate whose district spans three
counties would be concerned only with the interests of the one county in which that
delegate resided. That proposition, the Court remarked, “pay[s] little heed to the realities
of political life. Since [the delegate] is elected by all of the voters in the district, it seems
safe to say that one who sees fit to ignore a substantial portion of his constituency
undoubtedly will be rebuked when he is next obliged to face the electorate.” Calvert, 272
Md. at 673.
The Court has characterized the two “due regard” criteria as the “most fluid” of the
districting factors in that they may defer to other constitutional criteria. 1982 Districting
299 Md. at 681; 1992 Districting, 331 Md. at 615. However, the “due regard” criterion
16
relating to political subdivision boundaries has been the major focus of challenges made
during the past three redistricting cycles. See 2012 Districting, 436 Md. at 144-59; 2002
Districting, 370 Md. at 353-75; 1992 Districting, 331 Md. at 611-16.
The Court has said that the “due regard” criteria do not “encompass protection for
a concept as nebulous and unworkable as ‘communities of interest.’” 1982 Districting,
299 Md. at 692. When the Court found that a plan promoted non-constitutional factors,
such as the preservation of existing districts, over the requirement that “due regard” be
given to subdivision boundaries, the Court held that the plan was invalid. 2002 Districting,
370 Md. at 374. In that case, there was no question of fact as to whether the mapmakers
had promoted non-constitutional factors over the due regard criteria, because the State had
taken the position that the due regard criteria were “secondary requirements” that “‘[could]
be subordinated to the achievement of legitimate rational goals.’” Id. at 366 (quoting the
State’s argument). After finding that the mapmakers had applied the law incorrectly and
that the political branches would not be able to draw a new map in time for the primary
election, the Court drew its own plan. The Court’s plan had “many fewer shared senatorial
districts and many fewer subdivision crossings” than the plan adopted by the Legislature.
Id. at 374. The Court’s plan reduced the county crossings in one district from four to three,
reduced the 22 shared Senatorial districts to 14, and placed some districts entirely within
one county. Id. at 374-75.
How the Several Criteria Interact
There is science and art in the drawing of districts. The “substantially equal
population” requirement is objectively quantifiable, readily susceptible to measurement in
17
whole numbers, and strictly constrained by where people actually reside. It can be
determined through simple math. The four geographical criteria are less susceptible to a
simple quantitative measurement and may in fact conflict with one another – for example,
a political subdivision or natural boundary may define a shape that is far from compact.
Thus, the art of districting requires that the geographical provisions be applied flexibly,
each in the context of the others and of the very specific quantitative constraint imposed
by the substantially equal population mandate. See 2012 Districting, 436 Md. at 133-34,
quoting 2002 Districting, 370 Md. at 321-22 (referring to the “necessary flexibility in how
the constitutional criteria are applied”).
Four readily apparent circumstances complicate the process. First, as is apparent to
anyone who looks at a map of Maryland, the State is oddly shaped and is not easily divided
into regular geometric shapes. In particular, as the Court previously put it, the
“westernmost counties are almost severed from the rest of the State by the protruding
northeast boundary of West Virginia; the easternmost counties are severed by the waters
of the Chesapeake Bay; and the southwest border is warped by the winding waters of the
Potomac River.” 1982 Districting, 299 Md. at 687. Within the State, its land area “is
further fragmented by numerous other rivers, water bodies and topographic irregularities.”
Id. In some instances, the shortest route from one part of the State to another involves
18
cutting through another jurisdiction, such as the District of Columbia, Delaware, Virginia,
or West Virginia.9
Second, many of Maryland’s counties are also oddly shaped – for example, two
counties wrap around Washington D.C.; Baltimore County almost entirely envelopes
Baltimore City, which then reaches into Anne Arundel County; Calvert County is long and
thin while Carroll County is almost rectangular; Charles County has an appendage that
separates two other counties.
Third, the frequency of the other political subdivisions – i.e., municipalities –
within a county varies widely across the State, ranging from none in Baltimore County and
Howard County to 27 in Prince George’s County and 19 in Montgomery County. And the
boundaries of some of those municipalities are irregular.10
Fourth, and most notably, the changes in population, and in population density, from
one census to another occur unevenly around the State, and even within counties and
municipalities.
In sum, while the individual requirements of Article III, §4 are each intended to
“work in combination with one another to ensure the fairness of legislative representation,”
they also “tend to conflict in their practical application.” 1982 Districting, 299 Md. at 681.
Thus, “irregularity of shape or size of a district is not a litmus test proving violation of the
9
For example, the shortest routes from certain parts of Prince George’s County to
certain parts of neighboring Montgomery County go through the District of Columbia and
Virginia.
10
Laurel exemplifies a municipality with irregular lines. See https://perma.cc/6YA2
-RHYW.
19
compactness requirement.” Id. at 687. For that reason alone, the Constitution’s four
geographic provisions are not a checklist of separate criteria with which each district,
viewed in a vacuum, must strictly comply. In addition, in many instances, particularly in
central Maryland, the boundary of a district necessarily depends on the circumstances not
only of that district but of the ones surrounding it.
The Designation of Subdistricts for Electing Members of the House of Delegates
Under Article III, §3 of the Maryland Constitution, each legislative district elects
one senator. The three delegates assigned to that district may also be elected at-large by
all of the voters of the district. Alternatively, as noted above, that section also permits a
legislative district to be divided into subdistricts for the purposes of electing the three
delegates. This can be done in two ways. One way is to divide the district into three
subdistricts, each of which has one-third of the district’s overall population and elects one
delegate. A second way is to divide the district into two subdistricts: one subdistrict
contains two-thirds of the district’s population and elects two delegates; the other
subdistrict contains the remaining third of the district’s overall population and elects one
delegate. The Constitution contemplates that the apportionment of delegates in these ways
can vary from one legislative district to another.
As noted above, to comply with the one-person, one-vote requirement of the federal
Constitution, a one-member or two-member delegate subdistrict must have a population
proportionate to an “ideal” three-member delegate district and in parity with other
subdistricts of the same type. Past redistricting cases have not addressed whether or how
the other criteria of Article III, §4 apply to subdistricts, although subdistricts have often
20
been defined to coincide with boundaries of political subdivisions – i.e., counties and
municipalities.
Multi-member legislative districts do not violate the Equal Protection Clause of the
United States Constitution per se, but may do so as applied, if they are drawn “invidiously
to minimize or cancel the voting potential of racial or ethnic minorities.” 1982 Districting,
299 Md. at 673 (citations omitted).
Other Permissible Factors
The political branches – the Governor and the General Assembly – are not confined
to “only the stated constitutional factors.” 2012 Districting, 436 Md. at 133, quoting 2002
Districting, 370 Md. at 321 (internal quotation marks omitted). At a minimum, a districting
plan must address the constitutional factors and may not subordinate them to others.
Subject to that constraint, the political branches may permissibly “consider countless other
factors, including broad political and narrow partisan ones, and they may pursue a wide
range of objectives.” Id. The fact that an otherwise compliant plan “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.” 2012 Districting, 436 Md. at 133, quoting 2002
Districting, 370 Md. at 322. “[A]n intentional effort to draw district lines so as to create a
balance between two primary partisan political parties does not violate the fourteenth
amendment.” 1982 Districting, 299 Md. at 674.
Thus, “general principles of legislative apportionment will usually cast doubt upon
claims that a redistricting plan produces unfair political results.” 1992 Districting, 331 Md.
21at 609. For example, a “claim that the Governor’s plan constructs districts with a view
toward protecting incumbents states no redressable wrong.” Id. at 610.
Accordingly, under this Court’s precedent, a petitioner who challenges a plan on the
grounds that it improperly serves political objectives must establish by compelling
evidence that the constitutional factors were subordinated to those objectives and were not
met. 1982 Districting, 299 Md. at 688; see also 1992 Districting, 331 Md. at 614
(explaining that the presumption of validity that attaches to a plan that was created in the
political branch “may be overcome when compelling evidence demonstrates that the plan
has subordinated mandatory constitutional requirements to substantial improper alternative
considerations”).
Summary
Any districting plan is a set of compromises among the geographical criteria to
ensure that the plan meets the strictly numerical criterion of a substantially equal population
in every district. It is thus endemic to the process of redistricting that districting decisions
that were constitutionally valid during one cycle may no longer be so during a later cycle.
See 2012 Districting, 436 Md. at 153. The population grows and declines at different rates
in different places. That inevitably means that districts that previously had populations
within the constitutional tolerance for deviation from the “ideal district” no longer do. And
the compromises made among the geographical criteria, such as compactness and the “due
regard” factors, that supported a constitutionally valid plan in the past may need to be
replaced by a different set of compromises in the present. Past compromises that supported
a valid plan are not thereby immunized from future challenge. Conversely, new
22
compromises among the geographical criteria made in support of the “substantially equal
population” criterion in a new plan are still entitled to the presumption of validity.
In this case, the Petitioners did not allege that the redistricting plan violates the
“substantially equal population” requirement or the prohibition against racial and ethnic
discrimination. Rather, the challenges focused on the geographical requirements of Article
III, §4 – primarily compactness – and on whether delegate subdistricts should or should
not be used in certain circumstances.
II
The 2022 Redistricting Process
A. Timeline
Compared to prior redistricting cycles, the timeline for accomplishing redistricting
in the current cycle was uniquely challenging, featuring both a delayed beginning and an
early deadline.
First, the beginning of the process – accessing the changes in population determined
by the decennial census – was delayed by the Census Bureau’s late release of census data.
By statute, the federal government is to provide the states with the decennial census data
by April 1 of the year before the year of the next Congressional election. 11 This time,
however, the Census Bureau did not release the census data until August 12, 2021.
Pursuant to State law, the State then adjusted that data to reassign Maryland residents in
State and federal correctional institutions for redistricting purposes to the jurisdiction of
11
13 U.S.C. §141(a), (c).
23
their last known addresses.12 The adjusted data was made available by the Maryland
Department of Planning in September 2021.
Second, in some redistricting cycles, there is a shorter deadline for accomplishing
State legislative redistricting in time for the next election of the General Assembly. That
is because (1) the census is done every 10 years, (2) there are four-year intervals between
elections for the General Assembly, and (3) dividing 10 by 4 does not yield a whole
number. Thus, the redistricting process does not always face the same deadline for
establishing General Assembly districts.13 Half of the time, there will be a General
Assembly election within two years of the census; the other half of the time, within four
years of the census.14
This cycle (the 2020 census followed by a 2022 General Assembly election) was
one of the occasions when there was a shorter deadline for State legislative redistricting.
The next cycle (the 2030 census followed by 2034 General Assembly election) will enjoy
12
No Representation Without Population Act, Chapters 66, 67, Laws of Maryland
2010, codified in pertinent part at Maryland Code, State Government Article, §2-2A-01
and Election Law Article, §8-701. In the case of a Maryland resident inmate incarcerated
in a jurisdiction other than the inmate’s Maryland domicile, the inmate is reassigned to the
jurisdiction of domicile for redistricting purposes. In the case of inmates from other states,
the total population count is reduced. In the current cycle, the State population count was
reduced by 1,821 persons in compliance with that statute.
13
Because members of the House of Representatives are elected every two years,
Congressional redistricting does not involve different intervals.
14
Because the census typically takes at least a year to complete, because a general
election is preceded by a primary election, and because districts must be established well
in advance of the primary election, the timeline in any particular cycle will always be
considerably shorter than two or four years.
24
a longer lead time, as did the previous cycle (2010 census followed by 2014 General
Assembly election).
In addition, in this cycle, the State had an earlier primary date than in previous cycles
with the shorter interval between census and election year. During the previous short
interval cycle (2000 Census – 2002 General Assembly election), the primary election was
held in September. However, since that time, Congress passed the federal Military and
Overseas Voter Empowerment (“MOVE”) Act,15 which requires election boards to deliver
ballots to those voters not later than 45 days before the election. See 52 U.S.C.
§20302(a)(8). In order to comply with the MOVE Act, the State moved the date of the
General Assembly primary election from September to June. Chapter 169, Laws of
Maryland 2011, codified at Maryland Code, Election Law Article, §8-201(a)(2)(i).
This is the first year that election officials and those involved in redistricting have
experienced the perfect storm of delayed census data, a short-interval cycle for
redistricting, and the earlier primary election date. This year, there were less than 10
months between the release of the adjusted census data and the scheduled date of the next
primary election for the General Assembly. By contrast, during the last round of
redistricting in 2012, there were more than three years between the release of the census
data and the scheduled date of the next primary election for the General Assembly.
15
Pub.L. 111-84, 123 Stat. 2190 (2009).
25
B. The 2020 Census Results
The United States Census Bureau provided the data for the 2020 census on August
12, 2021. The data showed that the State’s population had increased seven percent over
the previous decade.16 More pertinent to the continued legal sufficiency of the existing
districting map was whether the increase had occurred evenly across the State. On that
question, the census results showed that the increase had occurred only in some places;
other places had lost population since 2010. The rate of change also differed markedly
from county to county.
Population Swings by Region
The Maryland Department of Planning presented the census data by dividing the
State into six regions. The raw census data showed that the population changed at different
rates and in different directions from one region to another, and even within regions:
• Western Maryland. Two of the three counties (Garrett and
Allegany) lost population while Washington County’s population
increased by 4.9%.
• Baltimore Region. The five counties in the Baltimore region (Anne
Arundel, Baltimore, Carroll, Harford, and Howard) all experienced
increases in population ranging from 3.4% to 15.8%. Baltimore
City’s population declined by 5.7%.
• Suburban Washington. All three counties (Frederick, Montgomery,
and Prince George’s) gained population, ranging from 9.3% to
16.4%.
• Southern Maryland. All three counties (Calvert, Charles, and St.
Mary’s) gained population, ranging from 4.6% to 13.7%.
16
The State’s population had increased by 403,672 to 6,177,224 people.
26
• Upper Eastern Shore. The five counties (Caroline, Cecil, Kent,
Queen Anne’s, and Talbot) experienced either small gains or small
declines in population ranging from a gain of 4.3% to a loss of 4.9%.
• Lower Eastern Shore. Half of the four counties (Dorchester,
Somerset, Wicomico, and Worcester) gained population while the
other half lost population, with the changes ranging from a gain of
4.9% to a loss of 7%.
Below is a map created by Department of Planning that illustrates these changes
graphically:
For purposes of redistricting, the Department of Planning adjusted 2020 census data in
accordance with State law and released those results in September 2021. That data was
used to calculate a target or “ideal” population for districts and the two types of subdistricts
for purposes of satisfying the “substantially equal population” criterion.
27
Distribution of Number of “Ideal” Districts by County
Ideally, each legislative district would contain the same population; as noted earlier,
the federal and State constitutions tolerate only a slight variation. As of 2020, Maryland’s
total population, as adjusted under State law for redistricting purposes, was 6,175,403.
Under an ideal plan – at least ideal in the sense of having districts with precisely equal
populations – each Senate district (and three-member delegate district) would have 131,391
people, each two-member delegate subdistrict (i.e., two-thirds of a Senate district) would
have 87,594 people, and each single-member delegate subdistrict (i.e., one-third of a Senate
district) would have 43,797 people.
Of course, the State’s population does not organize itself neatly within county or
municipal boundaries, within geographic markers, or in the form of geometric shapes that
equate precisely to those numbers. From the adjusted census data, the Department of
Planning computed the number of “ideal” Senate Districts that each county could support,
based on the county’s 2020 population. The following chart summarizes the population
information and ideal Senate district calculations.17
17
All figures and percentages in this chart were calculated using census data
adjusted by the Department of Planning in compliance with the No Representation Without
Population Act. See footnote 12 above. The 2020 adjusted census data is available at:
https://perma.cc/C3HY-MCSZ. (Note that the data for St. Mary’s County and Somerset
County were flipped in the Department’s chart.). This data thus differs slightly from the
unadjusted census data released in August 2021, which is available at:
https://perma.cc/WZ26-DSYU. The 2010 adjusted census data is available at:
https://perma.cc/4JCW-E3AZ.
28
% Population 2020 Adjusted
# of Ideal Senate
County Change Census
Districts
2010-2020 Population
Kent  -5.1% 19,239 0.15
Somerset  -8.2% 21,807 0.17
Garrett  -4.2% 28,846 0.22
Dorchester  -0.2% 32,720 0.25
Caroline  0.7% 33,414 0.25
Talbot  -0.8% 37,598 0.29
Queen Anne’s  4.0% 49,834 0.38
Worcester  2.1% 52,607 0.40
Allegany  -9.2% 65,852 0.50
Calvert  4.5% 92,925 0.71
Cecil  2.6% 103,963 0.79
Wicomico  5.1% 104,227 0.79
St. Mary’s  8.2% 113,958 0.87
Washington  5.6% 150,517 1.15
Charles  13.7% 166,836 1.27
Carroll  3.4% 172,640 1.31
Harford  6.5% 261,465 1.99
29
Frederick  16.4% 271,985 2.07
Howard  15.7% 331,804 2.53
Anne Arundel  9.6% 585,432 4.46
Baltimore City  -5.9% 589,579 4.49
Baltimore  6.1% 856,673 6.52
Prince George’s  12.0% 968,772 7.37
Montgomery  9.3% 1,062,710 8.09
Clearly, the population swings among the various counties meant that the district
lines would have to be re-drawn. Just as clearly, some counties would gain districts or
parts of districts; some would lose districts or parts of districts; every county would likely
have to share a district with at least one other county; and, necessarily, changes in one
district’s boundaries would ripple across at least one neighboring district.
C. The Adoption of the 2022 Legislative Redistricting Plan
The Governor and the General Assembly each appointed commissions to develop a
redistricting plan for consideration at the 2022 regular session of the General Assembly.
Both commissions held public meetings across the State in the course of preparing their
respective plans. Both plans were presented to the General Assembly in January 2022. In
accordance with Article III, §5 of the State Constitution, the General Assembly passed a
joint resolution adopting the plan recommended by its own commission.
30
1. The Governor’s Plan
In January 2021, Governor Hogan issued an Executive Order creating a commission
that he named the “Maryland Citizens Redistricting Commission” (“Governor’s
commission”). COMAR 01.01.2021.02. That commission consisted of nine members
appointed by the Governor. It was comprised of three Republicans, three Democrats, and
three members who were not registered with either party. Some members were appointed
directly by the Governor and others were appointed by him through a “public application
process.” COMAR 01.01.2021.02B(1)(d). The Executive Order provided that none of the
members was to be (1) a member of or candidate for the General Assembly or House of
Representatives, (2) an employee or officer of a political party or committee, (3) a member
of the staff of the Governor, General Assembly, or Congress, or (4) a current registered
lobbyist. COMAR 01.01.2021.02B(3). This was the first time in the modern history of
the State’s redistricting that the Governor appointed an advisory body on redistricting that
did not include any legislators.18 The Executive Order authorized the commission to
consult with “outside experts” and “units of State government” and ordered the units that
were subject to the Governor’s direction to assist the commission. COMAR
01.01.2021.02D(5), G, I.
The Executive Order also provided certain directions to the Governor’s commission
for devising its plan. It directed that the commission should take no account of how
18
See 2012 Districting, 436 Md. at 128 n.5 (listing members of redistricting
advisory body appointed by Governor); 2002 Districting, 370 Md. at 327 n.9 (same); 1992
Districting, 331 Md. at 579 n.1 (same); 1982 Districting, 299 Md. at 667 n.3 (same).
31
individuals were registered to vote in the past, how they voted in the past, or what political
party they belonged to. COMAR 01.01.2021.02C(1)(b)(i). The order also directed the
commission to take no account of where incumbent officeholders or potential candidates
resided or were domiciled. COMAR 01.01.2021.02C(1)(b)(ii). Additionally, the order
required that districts be subdivided into single-member delegate districts “[t]o the extent
possible and consistent with the Commission’s other duties.” COMAR
01.01.2021.02C(1)(d)(ii). The Governor’s commission was to present the plan to the
Governor’s Office with a report explaining the bases for the decisions embodied in the
plans.19 COMAR 01.01.2021.02D(7)(d).
According to the report of the Governor’s commission, it held 16 virtual public
hearings during 2021, half of which occurred before the census data was released, and
additional public working sessions. On November 5, 2021, the Governor’s commission
presented its plan to the Governor, who made the plan and report available to the public.
2. The General Assembly’s Plan
In July 2021, the President of the Senate and the Speaker of the House of Delegates
created a joint Legislative Redistricting Advisory Commission (the “LRAC”), which was
charged with preparing a new State legislative districting plan.20 The LRAC consisted of
the Senate President, the Speaker of the House of Delegates, two other Senators (one
19
The Governor’s commission was also tasked with developing a plan for
Congressional redistricting, which was to be presented to the Governor at the same time.
Like the Governor’s commission, the LRAC was also charged with preparing a
20
Congressional redistricting plan.
32
Democrat and one Republican), and two other Delegates (one Democrat and one
Republican) – in total, four Democrats and two Republicans. It was staffed by the
Department of Legislative Services (“DLS”).21 Karl S. Aro, a former executive director of
DLS, served as LRAC’s Chair; he had previously participated in the legislative redistricting
process in 2012 and 2002.22 The LRAC also held 16 public hearings, all subsequent to the
release of the census data by the Census Bureau (but at least one before its adjustment by
the Department of Planning), beginning in August 2021.
The LRAC held its hearings – a mix of in-person and remote hearings (all live
streamed and recorded) – for each region of the State. Those meetings opened with
explanations by the LRAC’s chair and DLS staff of the redistricting process and the
population shifts in the region that necessitated changes in district lines. Then, at each
hearing, the LRAC heard testimony from members of the public and invited further
comment. The LRAC invited and received written comments throughout.23
21
DLS is an agency in the Legislative Branch that, according to the General
Assembly’s website, “provides central nonpartisan staff services to support and assist the
General Assembly as a whole, its committees and subcommittees, and individual
legislators.” See https://perma.cc/8Q3L-MSGY; see also Maryland Code, State
Government Article, §§2-1202, 2-1204, 2-1207. DLS supports the General Assembly by,
among other things, conducting research and drafting legislation for members of the
General Assembly and its appointed commissions.
22
In 2002, this Court, when drawing a new map, appointed Mr. Aro and Nathaniel
Persily, now a professor at Stanford Law School, as consultants. 2002 Districting, 370
Md. at 350. Mr. Persily served as a consultant to the Governor’s Commission in the current
redistricting cycle.
23
See Maryland General Assembly, Committee Meetings, available at
https://perma.cc/X2V5-SNN5.
33
The LRAC released a draft legislative map to the public on December 20, 2021.
The LRAC’s draft map differed from the one proposed by the Governor’s commission.
The LRAC held a public hearing on its draft plan on December 22, 2021. At the hearing,
members of the public from Owings Mills, an unincorporated area in Baltimore County,
questioned whether the proposed map assured adequate representation of the minority
population in that area. Comments were also submitted on district lines that separated the
municipality of Havre de Grace from Aberdeen, both in Harford County. Further, a
member of the public asserted that part of the current District 33 had been moved into
District 31 for the purpose of changing the district of an incumbent Republican delegate.
At the close of the hearing, the chair stated that the LRAC was still accepting public
comments and that the plan was still in draft form.
The LRAC held its final meeting on January 7, 2022 to consider the final draft of
its legislative map. The Chair explained the changes that had been made in the interim: an
added subdistrict in Owings Mills, changes to lines in Harford County, and “minor”
changes in Anne Arundel County. He thanked DLS staff, some by name, for their work
making the maps. At that meeting, on a party-line vote, the LRAC approved a plan to be
submitted to the Legislature.
3. Introduction of the Two Plans at the 2022 Legislative Session
On January 12, 2022, the two State legislative redistricting plans were filed in the
General Assembly. See Senate Joint Resolution No. 3 and House Joint Resolution No. 1
(Governor’s commission’s plan); Senate Joint Resolution No. 2 and House Joint
Resolution No. 2 (LRAC plan).
34
The General Assembly promptly held hearings. First, the Senate Reapportionment
and Redistricting Committee held a joint hearing with the House Rules and Executive
Nominations Committee on January 18, 2022 to hear testimony and receive comments on
both plans. One week later, on January 25, 2022, the House Rules and Executive
Nominations Committee held a separate hearing on the Senate version of the joint
resolution adopting the LRAC plan and voted to give a favorable recommendation to that
bill.
At the January 18 hearing, Mr. Aro and Michelle Davis, a DLS staffer, testified.
Two members of the LRAC, Senator Griffith and Delegate Luedtke, were also available to
answer questions. Senator King, Chair of the Senate Reapportionment and Redistricting
Committee, invited committee members to ask questions of Senator Griffith and Delegate
Luedtke, who, she stated, were “here today to answer any questions from Legislators too.”
Mr. Aro testified on the use of subdistricts. He stated that the LRAC plan kept
districts “pretty much where they were” but, so as to give due regard to county boundaries,
“if we had to cross a line, and if at all possible,” a subdistrict was created to ensure that
the people in that area would not be “overwhelmed” in an at-large district.
Ms. Davis gave an overview of the population changes that had occurred and the
changes made in districts in the various regions and counties to account for those
population changes. After reviewing the map for the committee, Ms. Davis and Senator
King both solicited questions from the committee members about the redistricting map.
No questions were asked about any particular district.
35
Delegate Kathryn Szeliga, a member of the House Rules and Executive
Nominations Committee,24 asked Mr. Aro and Ms. Davis who had drawn the maps and
whether public money was spent on outside consultants. Ms. Davis testified that making
the plan involved a number of aspects so that the staff varied with the particular task, that
DLS and LRAC members’ staffs worked on it, that some DLS staff worked on the bill-
drafting aspects and others on the map-drawing, and that outside consultants had not been
hired.25 Mr. Aro stated that DLS’s budget takes the map-making process into account and
that consultants were not hired. The Senate committee gave the bill concerning the LRAC
plan a favorable report.
Next, the House Rules and Executive Nominations Committee met separately on
January 25, 2022 solely to take testimony from the sponsor and vote on the plan. Mr. Aro,
speaking on behalf of the LRAC, stated that the map had not changed since the January 18
meeting in which that House committee had participated. He added that the committee
adjusted the existing plan to address population changes, that the plan addressed the
constitutional requirements, and that the plan sought to preserve existing districts as much
as possible, as many of those districts had been in place for decades and had become
24
Delegate Szeliga is one of the petitioners in Miscellaneous No. 25, one of the
consolidated petitions in this case. Delegate Nicholaus R. Kipke, also a member of the
House Rules and Executive Nominations Committee and also a petitioner in Miscellaneous
No. 25, did not ask any questions. Both delegates were present and voted against the LRAC
plan at the January 25 committee meeting.
25
The Dissent complains that the LRAC plan might have been “created … by an
outside consultant” and that there was a lack of transparency on that point. Dissent at 21-
22, 30. In fact, Petitioner Szeliga asked that question during the legislative process, and
Ms. Davis answered it.
36
communities of interest. His presentation lasted about two minutes. The committee chair
invited questions. Delegates Szeliga and Kipke did not ask any questions, and neither
offered amendments. That committee, too, gave the plan a favorable report.
On January 27, 2022, the resolutions embodying the LRAC plan were the subject
of a floor debate in the House of Delegates. In the floor debate in the House, Delegate
Luedtke, a member of the LRAC, addressed the use of multi-member districts in response
to questions from legislators who expressed a preference for single-member districts. He
stated that the “Constitutional default” was for three-member House districts and that the
plan used single-member districts variously to mitigate subdivision crossings and ensure
minority voters’ opportunity to vote for a candidate of their choice. Asked who was
involved in drawing the maps, he responded that DLS and the members’ staff had been
involved. None of the five delegates who are petitioners in these cases asked questions
during the debate on the LRAC plan before the House of Delegates voted.26 All five voted
against the plan.
4. Adoption of the General Assembly’s Plan
The Generally Assembly adopted the LRAC plan when the Senate version of the
joint resolution passed both houses on January 27, 2022. As that occurred well before the
45th day of the legislative session, the LRAC plan became law pursuant to Article III, §5
of the State Constitution. We shall refer to it in this opinion as the “adopted plan.”
26
Delegate Szeliga and Delegate Fisher did speak in favor of a proposal to amend
the resolution to substitute the plan of the Governor’s commission for the LRAC plan.
37
D. Proceedings in this Court
1. Order Creating Procedures and Schedule
On January 28, 2022, the day after passage of the redistricting plan, the Attorney
General of Maryland, who anticipated that the plan adopted by the General Assembly
would be challenged (as redistricting plans had been challenged during the five previous
cycles), filed in this Court a Motion to Promulgate Procedures. That motion asked the
Court to adopt and publish procedures applicable to any petitions challenging the adopted
plan that might be filed in this Court under Article III, §5 of the State Constitution. That
same day, the Court granted that motion and issued an order, later amended on February 3,
setting forth procedures and deadlines for the filing of petitions and alternative plans and
for the filing of responses to any such petitions and alternative plans.
The Court’s order required that “any registered voter of the State who contends that
the 2022 legislative districting plan, or any part thereof, is invalid” file with the Court a
petition on or before Thursday, February 10, 2022 at 4:30 p.m. The Order further directed
that any such petitions set forth “the particular part or parts of the plan claimed to be
unconstitutional under the Constitution of the United States of America, Constitution of
Maryland, or federal law; the factual and legal basis for such claims; and the particular
relief requested, including any alternative district configuration suggested or requested by
the petitioner(s).”
The Order appointed Alan M. Wilner, a Senior Judge of this Court, as a Special
Magistrate to hold hearings on petitions and responses and to prepare and file with the
38
Court a report of his findings and recommendations. Judge Wilner had served in a similar
role with respect to the challenges to the 2012 redistricting plan.
The motion and order were designated as Miscellaneous No. 21 (September Term
2021).
2. Filing of Petitions
Within the time allowed by the Court’s Order, four petitions were filed, and each
was designated by a separate case number:
• Miscellaneous No. 24, filed by David Whitney, a registered voter, on February 9,
2022. This Petition asserted that a district improperly crossed the Chesapeake Bay. The
description of the district in question made clear that it referred to the boundaries of a
Congressional district rather than a State legislative district. That Petition was ultimately
denied and its allegations are no longer before us.27
• Miscellaneous No. 25, filed by Delegates Mark N. Fisher, Nicholaus R. Kipke,
and Kathryn Szeliga on February 10. This Petition objected to the design of 13 districts as
27
The State filed a motion to dismiss, pointing out that the petition did not address
State legislative redistricting. Mr. Whitney then amended his petition to explicitly
challenge several State legislative districts, none of which crossed the Chesapeake Bay.
The Special Magistrate deemed that amendment to be an abandonment of Mr. Whitney’s
timely filed petition; noted that, in any event, that petition lacked merit; and recommended
the denial of both the original and amended petition.
Mr. Whitney did not except to that recommendation. We agreed with the Special
Magistrate that Mr. Whitney’s only timely-filed petition had been abandoned, and, in any
event, was insufficient to challenge the adopted State legislative redistricting plan.
Accordingly, as part of the April 13, 2022 order resolving the consolidated cases, we denied
the petitions in Miscellaneous No. 24.
39
variously non-compact or violative of the “due regard” provisions. Eight of those districts
remain at issue before this Court.
• Miscellaneous No. 26, filed by Delegates Brenda O. Thiam and Wayne A.
Hartman, and a registered voter, Patricia Shoemaker, also on February 10. This Petition
challenged the fact that the plan created subdistricts in some districts and not in others, and
incorporated by reference the allegations made in Miscellaneous No. 25.
• Miscellaneous No. 27 filed by Seth E. Wilson, a registered voter, also on February
10.28 This Petition challenged subdistrict 2A in Western Maryland on several grounds.
On February 11, 2022, the Court consolidated the cases opened for the four petitions
with Miscellaneous No. 21 for referral to the Special Magistrate in accordance with
procedures set forth in the order in Miscellaneous No. 21. The February 11 order also
postponed some of the filing deadlines related to the 2022 primary election, then scheduled
for June 28, to accommodate the process for resolving the challenges made by the petitions.
On February 15, 2022, the Attorney General, on behalf of the State, filed timely and
detailed motions to dismiss each of the petitions.
3. Proceedings before the Special Magistrate
Discovery and Assertion of Legislative Privilege
The Special Magistrate set deadlines for the parties to exchange discovery and to
notify him of any discovery dispute. A discovery dispute did arise with respect to certain
requests made by the Petitioners in Miscellaneous No. 25 to which the State asserted
28
Mr. Wilson filed an amended petition on February 15, apparently to correct a
typographical error in a date.
40
legislative privilege. After receiving expedited emailed legal memoranda from the parties
and holding a virtual hearing on the matter, the Special Magistrate sustained the State’s
assertion of legislative privilege and resolved that dispute in favor of the State. That ruling
is described in greater detail in Part IV.B of this opinion.
Hearing on the Merits
In light of the time needed for the Special Magistrate to conduct an evidentiary
hearing and promptly produce a report on an expedited basis, the Court issued an order on
March 15, 2022 postponing the primary election from June 28 to July 19 and adjusting
election-related deadlines that necessarily had to precede the date of the primary election.
Meanwhile, apart from the one discovery dispute, the parties cooperated in
expediting the consolidated case to meet the challenging schedule. They submitted
comprehensive Stipulations of Fact to the Special Magistrate.
On March 23 and 24, 2022, the Special Magistrate presided over a hearing on the
four consolidated cases. The Petitioners’ various allegations, requests for relief, and
evidence, and the State’s responses and evidence are set forth below in the discussion of
each of the remaining three petitions.
4. The Special Magistrate’s Report, the Petitioners’ Exceptions, and Oral
Argument and Decision in the Court of Appeals
The Special Magistrate submitted his Report to this Court on April 4, 2022. 29 In
that report, he recommended that this Court deny all of the petitions. The conclusions of
29
The report of the Special Magistrate, and the extensive exhibits to that report, may
be found on the Court of Appeals website under “Highlighted Cases” at this link:
41
the Special Magistrate are discussed in greater detail in Parts IV, V, and VI of this opinion
below. The Petitioners in Miscellaneous Nos. 25, 26, and 27 filed exceptions to the
recommendations relating to their respective petitions, with supporting memoranda. The
State responded with its own memoranda supporting the Special Magistrate’s
recommendations.
This Court heard oral argument concerning the exceptions on April 13, 2022.
Following the hearing, the Court denied the petitions in an order, indicating that its opinion
would follow. That order appears in Appendix A to this opinion.
III
Judicial Review of the Adopted Plan
A. Role of the Court
In this context, the Court exercises original jurisdiction under Article III, §5, not
appellate review. It is a unique type of judicial review of actions taken by the Governor or
the Legislature. That jurisdiction has been triggered under the Maryland Constitution by
challenges to a legislatively-adopted districting plan for the General Assembly.
In addressing challenges to a redistricting plan, this Court’s role “is limited to
determining whether the legislative apportionment plan complies with the applicable
constitutional principles.” 2012 Districting, 436 Md. at 159. Absent proof of a violation,
“it is not the Court’s role to determine how a legislative apportionment plan best may
embody the ideals supporting those principles.” Id. That is because the Maryland
https://mdcourts.gov/sites/default/files/import/coappeals/highlightedcases/2022districting
/20220404reportofthespecialmagistrate.pdf .
42
Constitution assigns responsibility for the drawing of a State legislative map to the
Executive and Legislative Branches of Maryland government. The “political branches are
the primary actors” in redistricting and “because of this constitutional commitment, as a
matter of the separation of powers, [they] may legally pursue a wide variety of political
aims” in that process. Id. at 150.
Thus, unless the Court finds that an adopted plan violates the applicable laws, the
drawing of a districting map is not a core judicial power such that this Court may substitute
its preferred district boundaries for the ones that the Legislature has adopted. See 2012
Districting, 436 Md. at 159 (noting that choices made in the district boundaries are
“political one[s], well within the authority of the political branches to make”); see also
Murphy v. Liberty Mutual Company, 478 Md. 333, 372-82 (2022) (explaining the
constraints that the Separation of Powers clause in Maryland’s Declaration of Rights places
on the exercise by one branch of government of core powers belonging to another); Getty
v. Carroll County Board of Elections, 399 Md. 710, 741 (2007) (“[T]he power of judicial
review does not equate to the power to exercise functions that are explicitly vested in the
other organs of the government.”). This Court has recognized, for example, that “it is not
for the judiciary to determine whether a more compact district could have been drawn than
that under challenge; the court’s province is solely to determine whether the principles
underlying the requirement of compactness of territory have been considered and properly
applied considering all relevant circumstances.” 1982 Districting, 299 Md. at 680-81.
In sum, the Court’s role is to assess the plan that has been adopted according to the
constitutional process and to consider any contention that the adopted plan fails to comply
43
with the Constitution. It is not to determine whether there is another plan, either proposed
or that the Court itself can conjure, that would be better.
B. Burdens of Proof
As with any complaint filed in a circuit court, conclusory statements of law are not
sufficient by themselves to state a claim.30 And, as in past redistricting cases, this Court’s
initial order in Miscellaneous No. 21 established procedures for any challenge to the 2022
redistricting plan that set forth basic pleading requirements – that a petition state the
petitioner’s “objection to the plan”; identify the “particular part or parts of the plan”
claimed to violate the law; state “the factual and legal basis for such claims”; and specify
“the particular relief requested, including any alternative district configuration suggested
or requested by the petitioner(s).” The sufficiency of a petition to state a claim poses a
legal question that the Court may address before referring the petition for an evidentiary
hearing before a special magistrate.
In this instance, the State filed motions to dismiss each of the four petitions shortly
after they were filed. Given the exigency of time, we referred all of them to the Special
Magistrate for a hearing without first resolving the motions to dismiss. We later accepted
the Special Magistrate’s recommendation to deny one of the petitions because, although
timely filed, it clearly failed to plead a violation of Article III, §4 as to a State legislative
district. See footnote 27 above. The State pointed to certain deficiencies in the other
30
See, e.g., RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 644 (2010)
(“The well-pleaded facts setting forth the cause of action must be pleaded with sufficient
specificity; bald assertions and conclusory statements by the pleader will not suffice.”).
44
petitions as well. However, as we have an evidentiary record and recommendation from
the Special Magistrate as to the merits of the other three petitions, we will address the
merits and not resolve these cases on those procedural grounds.
As to the merits, this Court’s case law on State legislative redistricting establishes
the following principles regarding the burdens of proof:
• Presumption of Validity. Every opinion of the Court that has reviewed the
substance of a redistricting plan has started from the premise that an adopted plan and the
policy choices reflected in it are to be accorded a presumption of validity. See 2012
Districting, 436 Md. at 165; 2002 Districting, 370 Md. at 361, 363, 373; 1992 Districting,
331 Md. at 614-16; 1982 Districting, 299 Md. at 688.
• Burden on Challengers. The challengers have the burden of demonstrating that a
redistricting plan is not valid. 2012 Districting, 436 Md. at 137; 1992 Districting, 331
Md. at 610; 1982 Districting, 299 Md. at 673, 683.
• Compelling Evidence of a Violation. To overcome the presumption of validity
and satisfy the burden of proof, a challenger must present “compelling evidence” that a
plan violates Article III, §4 in some way. 2012 Districting, 436 Md. at 137, 159; 2002
Districting, 370 Md. at 373; 1992 Districting, 331 Md. at 597, 614.
• Sufficient Evidence of Compliance. If a challenger presents the requisite
“compelling evidence” of a violation of Article III, §4, the State must produce “sufficient
45
evidence” to support a finding that the plan complies with Article III, §4. 2012 Districting,
436 Md. at 137-38.31
31
In dissent, Judge Gould expresses a preference for the procedure that the Court
followed in the 2002 Districting case when the Court was dealing with 14 separate and
varied challenges to the redistricting plan. Dissent (Gould, J.) at 2-3.
In the 2002 case, in contrast to this case and the 2012 Districting case, the Court
issued an initial scheduling order that provided for a preliminary review of the petitions by
the Court before referral of issues to a special master. The 2002 scheduling order, like the
order in the current case, set a deadline for filing petitions and required petitioners to
specify the parts of the plans challenged, the factual and legal basis for the challenge, and
the particular relief sought, including suggested or requested alternative district
configurations. Order (March 1, 2002) at ⁋1. And, like the scheduling order in the current
case, the 2002 order set a deadline for the State’s response. From that point, the 2002 order
set forth a different procedure.
In its 2002 order, the Court set a deadline for the submission of legal memoranda
“addressing the facial validity of the plan” and “issues that should be referred to a Special
Master,” set a hearing date before the Court for the Court’s initial determination of those
questions, and set a hearing date for proceedings before the special master, with a deadline
for the special master’s submission of a report on the referred issues. Order (March 1,
2002) at ⁋⁋3-6. Accordingly, upon the filing of 14 timely petitions and the parties’ other
submissions in the 2002 case, the Court held a preliminary hearing to determine which
issues to refer to the special master, referred certain issues to the special master, and placed
the burden on the State to produce sufficient evidence of compliance with Article III, §4
on those issues. The Court left the burden on the challengers to show a violation of federal
requirements. 2002 Districting, 370 Md. at 329, 336-37, 368.
In the 2012 Districting case, only three challenges were filed to the adopted plan,
and the Court did not conduct its own preliminary proceeding to assess the potential merits
of those challenges before referring them to the special master. Instead, in an opinion by
Chief Judge Bell, the Court stated that the challengers bore the burden of producing
“compelling evidence” of violations of Article III, §4 before the burden would shift to the
State to produce “sufficient evidence” of compliance with the requirements of that
constitutional provision. 2012 Districting, 436 Md. at 137-38.
This case, which was initiated by a similar number of challenges as in 2012, has
proceeded in the same manner as the 2012 Districting case. There is much to be said for
the procedure that the Court followed in 2002; as to some allegations, an early disposition
46
IV
Miscellaneous No. 25
A. The Petition
Petitioners Fisher, Kipke, and Szeliga, all members of the General Assembly who
had voted against the adopted plan, alleged in their Petition that the plan violated Article
III, §4, as well as other provisions of the Maryland Constitution.32 The Petition identified
13 districts that allegedly failed to satisfy the criteria of Article III, §4. The primary defect,
according to the Petition, was lack of compactness. The Petition also alleged that the
drawing of these districts failed to give due regard to the boundaries of political
subdivisions and that, with respect to one district, violated the requirements of contiguity
and due regard to natural boundaries. For relief, the Petitioners asked that the Court direct
the General Assembly to enact a new legislative districting plan, with the plan proposed by
the Governor’s commission as the default if the General Assembly failed to do so.33
B. Discovery Dispute and Legislative Privilege
The Special Magistrate had set a March 11, 2022 deadline for the exchange of
discovery in all of the cases. He instructed the parties to notify him, before that date, of
of the State’s motions to dismiss might well have narrowed the issues before the Special
Magistrate.
32
Specifically, they cited Articles 7, 24, and 40 of the Maryland Declaration of
Rights and Article I, §7 of the Maryland Constitution. Before us, they are no longer
pursuing their arguments under those provisions.
33
At oral argument before us, they proposed a third option: that the Court charge a
Special Magistrate with drawing up a new plan.
47
any disputes that they were unable to resolve on their own. In Miscellaneous No. 25, the
parties cooperatively exchanged discovery and other information on the tight timetable set
by the Special Magistrate. On March 3, they timely advised him of a discovery dispute
that they were not able to resolve.
Discovery Request and Response; Assertion of Legislative Privilege
The Petitioners in Miscellaneous No. 25 sought the following information, all
specific to the districts that they had challenged:
(1) who was responsible for the actual drawing or construction of the
specific legislative districts Petitioners have challenged;
(2) if a computer program was used, what criteria was the program
instructed to use to draw the legislative districts Petitioners have challenged;
(3) who provided instructions to the actual map drawer(s) regarding
what factors or other criteria were to be used in drawing the legislative
districts Petitioners have challenged; and
(4) what specific instructions were given to the map drawer(s)
regarding the various legislative districts Petitioners have challenged.
In response, the State provided the name of the computer program that DLS staff had used
to draw the maps, but declined to respond to the other questions on the ground that the
information was protected by legislative privilege. Counsel jointly notified the Special
Magistrate of the impasse and, at his request, emailed legal memoranda on that issue to
him on an expedited basis.34
34
The Dissent asserts that these discovery requests were “seeking to show that the
NCEC’s Democratic Performance Index guided the drawing of the districts during 2022
Districting.” Dissent at 27. Perhaps that was the Petitioners’ purpose in making the
requests, but Petitioners did not say that in their filings in the record and the Dissent does
not point to any particular source for that assertion.
48
In arguing that the Special Magistrate should overrule the assertion of legislative
privilege, the Petitioners urged the Special Magistrate to apply a five-factor test used by
the federal district court in a Congressional redistricting case. See Benisek v. Lamone, 241
F. Supp. 3d 566, 575 (D. Md. 2017), vacated and remanded sub nom. Rucho v. Common
Cause, 139 S. Ct. 2484 (2019). In response, the State argued that the information was
protected by two provisions in the Maryland Constitution: Article 10 of the Maryland
Declaration of Rights (“That freedom of speech and debate, or proceedings in the
Legislature, ought not to be impeached in any Court of Judicature”) and Article III, §18
(“No Senator or Delegate shall be liable in any civil action, or criminal prosecution,
whatever, for words spoken in debate.”). Both parties cited two opinions in which the
Court of Special Appeals had discussed legislative privilege. See Montgomery County v.
Schooley, 97 Md. App. 107, 116 (1993), and Floyd v. Baltimore City Council, 241 Md.
App. 199, 213 (2010). Additionally, the State cited Blondes v. State, 16 Md. App. 165(1972) and cases in which courts discussed Article III, §18 in the context of a legislator’s
liability.
Ruling of the Special Magistrate
On March 10, 2022, after holding a remote informal conference with the parties on
the issue, the Special Magistrate upheld the assertion of legislative privilege. 35 In his
memorandum opinion, he observed that the Benisek court had not relied on Maryland law
when it addressed the scope of Maryland legislators’ privilege under Maryland’s Speech
35
An amended version of that order contained minor editorial changes.
49
and Debate Clause. He then noted that, in Schooley, the Court of Special Appeals had
adopted from Gravel v. United States, 408 U.S. 606 (1972), the principle that “a legislator,
even if not a party to the action and thus not subject to any direct consequence of it, cannot
be compelled to explain, other than before the legislative body of which he is a member,
either his legislative conduct or ‘the events that occurred’ in a legislative session.”
Schooley, 99 Md. App. at 117. Further, the Special Magistrate stated, the Schooley court
had cited Marylanders for Fair Representation v. Schaefer, 144 F.R.D. 292 (D. Md. 1992),
for the proposition that a legislator, acting within the sphere of legitimate legislative
activity, may not be required to testify regarding those actions. Schooley, 97 Md. App. at
118.
With regard to what conduct falls within the sphere of legitimate legislative activity,
the Special Magistrate cited another federal case, Bruce v. Riddle, 631 F.2d 272 (4th Cir.
1980), for the proposition that “for purposes of the privilege, [the legislative process]
includes more than just proceedings at regularly scheduled meetings of a legislative body”
but includes as well “a meeting with citizens or private interest groups” and, if it includes
that, “must also include caucuses and meetings with political officials called to discuss
pending or proposed legislation.” Schooley, 97 Md. App. at 123, citing Riddle, 631 F.2d
at 279. In summary, the Special Magistrate stated, “the privilege stems from the general
proposition that legislators and their staff and consultants cannot be compelled to explain
50
their legislative conduct or events that occurred in a legislative session, other than before
the legislative body.” He therefore sustained the State’s assertion of legislative privilege.36
C. The Hearing on the Merits Before the Special Magistrate
At the hearing before the Special Magistrate on March 23 and 24, 2022, the
Petitioners and the State stipulated to the basic facts about the 2022 redistricting process
and each of the districts in question. Various maps and charts were introduced into
evidence.
Both sides relied primarily on expert testimony analyzing that data. 37 The
Petitioners offered, and the Special Magistrate accepted, Sean Trende as an expert on
“political science, redistricting [matters], and calculating compactness” to present
computations on how the challenged districts scored on various quantitative tests that
purport to measure compactness. Mr. Trende had been an attorney in private practice
through 2010, had earned a master’s degree in applied statistics in 2019, was working on a
Ph.D in political science, and had experience in redistricting matters. As its only witness,
the State offered, and the Special Magistrate accepted, Professor Alan Lichtman of
American University as an expert on “voting rights, American political history, historical
36
The Special Magistrate noted in his memorandum order that counsel for the
Petitioners in Miscellaneous No. 26 had joined on the discovery issue at the oral argument,
presumably because they had incorporated by reference the allegations made in
Miscellaneous No. 25. See Part V of this opinion. However, there is nothing in the record
to indicate that the Petitioners in Miscellaneous No. 26 had themselves made any discovery
requests that had been denied on the basis of legislative privilege. Accordingly, we will
treat this issue as specific to Miscellaneous No. 25.
37
We discuss that testimony in greater detail below.
51
statistical methodology, quantitative methodology, and redistricting.” For what it is worth,
Professor Lichtman’s experience and his academic credentials were considerably more
extensive than Mr. Trende’s. Both experts were cross-examined about the fact that each
had exclusively testified on a partisan basis in the past – Mr. Trende in Republican
challenges to redistricting plans created by Democratic-leaning bodies and in defense of
plans created by Republican-leaning bodies; Professor Lichtman in Democratic challenges
to redistricting plans created by Republican-leaning bodies and in defense of plans created
by Democratic-leaning bodies. Both experts were also cross-examined about criticism of
their respective analyses by courts in previous cases.
The Petitioners also called as witnesses three Republican members of the House of
Delegates, including two of the Petitioners. The hearing concluded with almost two hours
of oral argument by the parties.38
D. The Recommendation of the Special Magistrate
The Special Magistrate filed his report with the Court on April 4, 2022. With respect
to Miscellaneous No. 25, the Special Magistrate observed that the hearing had focused
almost entirely on one criterion in Article III, §4 – compactness. He noted that there was
no assertion that the adopted plan violated either the substantially equal population
criterion or the Voting Rights Act. He found that “[a] comparison of the current plan with
the one it replaces shows that an attempt was made to keep voters in their current districts,
38
At the conclusion of the argument, the Special Magistrate thanked counsel for the
cooperative manner in which they had litigated the case. Our review of the video of that
proceeding confirms the high standard of professionalism exhibited by counsel on both
sides.
52
with which they are familiar, and to avoid crossing political or natural boundary lines
except when required to achieve or maintain population equality.” He concluded that there
was no compelling evidence of a constitutional violation and recommended that the
petition be denied.
E. Petitioners’ Exceptions to the Recommendation of the Special Magistrate
Petitioners excepted to the Special Magistrate’s recommendation, arguing that eight
of the challenged districts should have been found to violate Article III, §4 – seven as to
compactness (Districts 12, 21, 22, 23, 24, 33, and 47) and one as to contiguity and due
regard for natural boundaries (District 27). As to those eight districts, Petitioners argued
that they had presented compelling evidence of constitutional violations and had therefore
shifted the burden of proof to the State to justify the validity of the plan. Accordingly,
those are the issues and districts that we shall address here. See 1992 Districting, 331 Md.
at 584-85 (addressing only the challenges that were the subject of exceptions filed by
petitioners to the special master’s report). Petitioners also excepted to the Special
Magistrate’s ruling, based on the doctrine of legislative privilege, that they were not
entitled to discover certain information about the creation of the adopted plan. We also
address that exception below.
F. Analysis
As noted above, the Petition that initiated Miscellaneous No. 25 had asserted a wide
range of violations of Article III, §4 in 13 of the 47 legislative districts in the adopted
53
plan.39 By the time of the hearing before the Special Magistrate, the alleged violations had
largely been reduced to the question of compactness of some of those districts. We will
address first whether there is compelling evidence of a violation of Article III, §4, related
to the issue of compactness, with particular reference to the seven districts identified by
Petitioners. We bear in mind as we do so that one district in a districting plan can seldom
be viewed without regard to the characteristics of its neighboring districts. Next, we will
address whether there is compelling evidence that District 27 violates Article III, §4 for
failure to satisfy the contiguity and due regard criteria. Then we will address Petitioners’
exception to the Special Magistrate’s ruling on legislative privilege. Finally, we will
address certain arguments made in the dissenting opinion of Chief Judge Getty that relate
to Miscellaneous No. 25.
1. Compactness
With respect to their allegations that seven districts failed to comply with the
compactness criterion of Article III, §4, Petitioners relied on (1) the shapes of those districts
– what they called the “eye test”; (2) the testimony of Mr. Trende concerning certain
39
For example, in alleging that various districts did not give due regard to political
subdivisions, as required by Article III, §4, Petitioners cited instances in which districts
crossed county lines and asserted that those districts also divided 57 specific “towns or
localities.” See Petition at ¶¶28, 32, 36, 41, 45, 52, 58, 62, & 67. However, the adopted
plan had the same number of districts with county crossings as their preferred plan (the
plan of the Governor’s commission), and Petitioners stated at the hearing that only one
crossing of a municipality – Glenarden in Prince George’s County – was at issue in the
districts they had challenged. Although they contended that the districts encompassing that
municipality and Hyattsville, another municipality, are not compact, they did not
specifically allege that either town was the subject of partisan gerrymandering. In their
exceptions, they did not pursue a contention that the crossing of Glenarden violated Article
III, §4.
54
quantitative metrics and comparisons that he made; and (3) the testimony of two legislators
providing their own analysis of the consequences of the way in which three of those seven
districts were drawn.
The Eye Test
As to the visual examination test, it is certainly true that none of the legislative
districts in the adopted plan resembles either a circle or a square and that some districts
have odd shapes. But the same can also be said of past State redistricting plans approved
by this Court, including the one drawn by the Court itself in 2002, and of the plan proposed
by the Governor’s commission for this cycle. The mapmakers of all of those plans had to
contend with what this Court has characterized as the “bizarre” shape of Maryland itself
and the irregular shapes of some of the State’s counties40 and municipalities.41
One district that has had an odd shape in its several iterations in different plans is
District 12. Its shape in each of the three most recent redistricting plans is illustrated below:
2002 Court-drawn plan:
40
For example, Charles County, bounded on two sides by the Potomac River, might
not score well on any compactness test.
41
Examples of irregularly-shaped municipalities include Bowie, Glenarden,
Hyattsville, LaPlata, and Laurel.
55
2012 Court-Approved Plan:
2022 Adopted Plan:
The fact that a particular district had a peculiar shape in the past does not immunize
a map from close scrutiny in the present. But the fact that past plans resorted to oddly-
shaped districts to satisfy the “predominant criterion” of the substantially equal population
and the other federal and State constitutional requirements illustrates that an odd shape
alone is not compelling evidence of a violation.
Mr. Trende’s Measures, Maps, and Comparisons
Mr. Trende’s testimony concerning certain quantitative metrics was apparently
intended to provide the Court with some context for assessing the degree to which these
districts deviated from what one might expect for a compact district in Maryland.
56
However, the comparisons that Mr. Trende made were not those that would have been
helpful in providing the desired context.
Mr. Trende himself did not offer an opinion or conclusion as to whether the
challenged districts did or did not satisfy Maryland’s compactness criterion. Rather, he
offered a comparison of the challenged districts with a data set of other districts from
around the country – a comparison that suggested that the challenged districts lagged
behind others on a compactness scale.
First, Mr. Trende presented charts showing the scores of the challenged districts on
four quantitative tests that are known as the Reock, Polsby-Popper, Inverse Schwartzberg,
and Convex Hull tests. Each measures the “compactness” of a district by comparing its
area and perimeter in different ways to those of a purportedly ideal reference shape.42 He
42
As described by the expert witnesses and the Special Magistrate in his report,
those four tests are:
• Reock test: The ratio of the area of the legislative district to the area of a circle
that encompasses the district, known as the minimum bounding circle. The score
is between 0 and 1, with a higher score demonstrating a more compact district.
In this measurement, a circle represents a fully compact district.
• Polsby-Popper test: The ratio of the area of the legislative district to the area of
a circle with the same circumference, or perimeter, as the subject district. The
score ranges between 0 and 1, with more compact districts receiving higher
scores.
• Inverse Schwartzberg test: The Schwartzberg test measures the ratio of the
perimeter of the legislative district to the circumference or perimeter of a circle
with the same area as the district. The inverse of the score on the Schwartzberg
test yields a number between 0 and 1 with a higher number indicating greater
compactness.
57
testified that he used several tests because there is no “magic number” for measuring
compactness.
Using the scores of the challenged districts on these metrics, Mr. Trende constructed
a summary chart that compared the challenged Maryland districts with 13,473 mapped
state legislative districts (both house and senate) nationwide for the years 2002 through
2020. For each challenged Maryland district, that chart showed the number of districts in
the data set that scored lower than the challenged district on all four of the tests. In other
words, if a district in the data set scored better on any one of the four metrics than a
challenged Maryland district, the data set district was graded as “better” than the
challenged district on the issue of compactness. This, of course, means that a challenged
Maryland district could score better than a data set district on three out of the four tests for
compactness, but would be classified as “worse” than the data set district because it did not
do so on the fourth test.43 We do not know whether or how frequently that phenomenon
occurred in Mr. Trende’s analysis. He did not say.
• Convex Hull test: A similar test to the Reock test, except it uses a polygon
instead of a circle to enclose the district.
Mr. Trende noted that scores on these tests were not always consistent with one another as
a district shaped like a square or rectangle might not score particularly high on a circle-
based metric.
43
An analogy might be made to a batter in a baseball game who has three hits out
of four at bats against a pitcher – resulting in an incredible .750 batting average against that
pitcher. Mr. Trende’s methodology would find that the pitcher had prevailed in that game
and credit the batter with a .000 batting average.
58
Based on this selective comparison, only 0.71% of the districts in the data set were
“worse” than one of the challenged Maryland districts (District 12), and 43.56% of the
mapped districts were “worse” than District 27. This led him to conclude that District 12
“is an outlier” – presumably meaning not very compact – and that District 27 is “pretty
compact.” This was the closest that Mr. Trende came to stating an opinion on compactness.
Mr. Trende plotted the distribution of the data set districts by their scores on each
metric on four histograms, resulting in the familiar bell curve for most data distributions.44
He indicated on each histogram where the scores of each challenged district fell in the
distribution. In at least one of the histograms, the challenged districts appear to fall on both
sides of the median. However, Mr. Trende did not calculate any reference measure, such
as a standard deviation,45 that a student learns in Statistics 101 for ascribing significance to
a data point on a bell curve. Nor did he provide any useful analysis of these histograms,
preferring to rest his conclusions on the summary chart mentioned above.
44
When graphed, many large data sets tend to distribute themselves in what is
commonly known as the “bell curve,” clustering around the average and tapering off on
either side. Basic statistics regarding the distribution can identify biases and outliers within
the data set. See Wolfram Alpha, “Bell Curve” (2022), available at https://perma.cc/KP5Y-
4JYR.
45
The standard deviation is a measure of how spread out a data set is from the
average. This statistic is “useful because, given normal chance, an outcome will occur
within one standard deviation of the average about two-thirds of the time.” See Samuel S.-
H. Wang, Three Tests for Practical Evaluation of Partisan Gerrymandering, 68 Stan. L.
Rev. 1263, 1288 (2016). The Supreme Court has noted that as a general rule, “if the
difference between the expected value and the observed number is greater than two or three
standard deviations,” the outcome could indicate manipulation. See Castaneda v. Partida,
430 U.S. 482, 496 (1977).
59
More to the point, it seems odd to compare the shapes of districts in a state like
Maryland – which itself resembles a paint splatter that someone half-heartedly started to
wipe up – with districts in the many states that are relatively rectangular in shape. 46 For
that reason, some scholars have questioned the relevance of compactness comparisons
made across state lines, with Maryland being held up as a prime example of why such
comparisons are not appropriate. As one study explained:
[O]ne need only look at Colorado and Maryland side by side
to justify [the rule against comparisons of compactness scores
across states]. For nearly every measure, the districts of
Maryland will be less compact than the districts of Colorado.
Maryland, of course, has a jagged, incising coastline which
skews the score of most compactness measures. But these are
forgone conclusions, as state borders do not change and
congressional districts are subject to these boundaries. So,
using most traditional compactness measures, comparisons
across states are inappropriate.
Carl Corcoran and Karen Saxe, Redistricting and District Compactness, in THE
MATHEMATICS OF DECISIONS, ELECTIONS, AND GAMES (2014 ed. Karl-Dieter Crisman, et
al.).47
Mr. Trende provided no basis for his implicit assumption that a comparison of
districts in other states would be informative on the compactness of districts drawn under
46
In his written testimony presented to the General Assembly, Professor Persily, the
consultant to the Governor’s commission, noted that the “strange shape of Maryland and
some of its counties” necessarily affected compactness scores.
47
Along the same lines, Professor Lichtman testified that Maryland ranked near the
bottom on a variety of measures of the compactness of states themselves. One of the State’s
exhibits provided the precise ranking of the states on the compactness scores, but it is not
clear from the video record of the hearing that the exhibit itself was received in evidence.
60
Maryland law. Specifically, he made no apparent effort to exclude the scores of districts
in states where the districting requirements differ from those in Article III, §4; made no
effort to exclude the numerous states whose shapes make them more conducive to division
into neat shapes than that of Maryland; provided no basis for assessing the scores of the
challenged Maryland legislative districts – that is, State Senate districts – by reference to a
data set that included districts from other states that would be the equivalent of subdistricts
in Maryland (that is, the data set included both senate and house districts from other states);
and seemingly did not weight the analysis to account for the varying number of districts in
each state.
What is perhaps more informative than what Mr. Trende did is what he did not do.
Mr. Trende did not compare the test scores of the challenged districts specifically with
those of other maps of Maryland districts,48 such as the districts approved in prior
redistricting cycles, or with those in the plan proposed by the Governor’s commission.49
He said that he made only the comparison that Petitioners had asked him to make.
48
Some of the 13,473 districts in the data set would have been Maryland districts
and subdistricts from past redistricting cycles, but Mr. Trende apparently made no effort to
run the comparison specifically against those districts.
49
Although Mr. Trende depended on test scores to conclude that most of the districts
were low on a compactness scale, he offered no testimony on how the Petitioners’ default
alternative – the Governor’s commission plan – would fare in the same comparison with
data set districts. In written testimony presented to the General Assembly on January 18,
2022, Professor Persily, that commission’s consultant, provided tables of compactness
scores for districts in that plan, as well as the LRAC plan. While most of the districts in
the Governor’s commission plan scored higher on most metrics than most of the districts
in the LRAC plan, the mean compactness scores of the two plans on most measures were
not dramatically different and Professor Persily did not opine that the LRAC plan was
61
Mr. Trende did not do anything other than compute and compare compactness
scores. He provided no opinions or analysis of the other districting factors set forth in
Article III, §4. He did not analyze county or border crossings, the effect of population
shifts, the existence of Voting Rights Act districts, the shapes of Maryland’s subdivisions,
or its natural boundaries. He testified that he had not been asked to undertake those
analyses. Although he had appeared as an expert in a number of previous cases involving
allegations of partisan gerrymandering, he said that he had not analyzed the adopted plan
as to whether it advantaged Democrats or disadvantaged Republicans, and he offered no
opinion on that subject. Nor did he express an opinion on whether the shapes of the
challenged districts or his comparisons demonstrated partisan gerrymandering.50
Specifically, he did not opine on whether the configuration of any of the challenged
districts would impermissibly dilute or enhance the voting strength of any discrete group.
See 1982 Districting, 299 Md. at 687.
The compactness comparison made by Mr. Trende is not instructive on the issues
before the Court. His number crunching had the appearance of rigor, but contributed little
constitutionally deficient. That written testimony did not include any comparison to
compactness scores of past Maryland districting plans.
50
In the State’s case, Professor Lichtman testified that a comparison of compactness
scores of Maryland districts to the scores of districts in other states was meaningless and
that the Governor’s plan also contained some districts with low scores and county
crossings. Professor Lichtman did offer an analysis of the adopted plan on the issue of
partisan gerrymandering which, he said, should be analyzed instead by reference to voter
affiliation statistics and past election results. He testified that, by most measures of partisan
gerrymandering used in political science literature on the subject, the adopted plan
advantaged Democrats “slightly less” than the prior 2012 districting plan.
62
to meeting the Petitioners’ burden. The Special Magistrate apparently accorded little
weight to it. Given the superficial quality of his analysis and the lack of any opinion by
Mr. Trende whether the adopted plan demonstrated the alleged partisan gerrymandering,
we agree that it is entitled to little weight.
Mr. Trende’s Past Election Result Map Overlays
In addition to the charts and histograms concerning test scores, Mr. Trende
produced maps in which the challenged districts were overlaid by a color scheme that
indicated the share of the vote received in past elections by certain Republican candidates
– Governor Hogan in 2018, former President Trump in 2020, and an unsuccessful
Republican candidate for Maryland Attorney General in 2018. The color scheme followed
the convention of displaying Democratic-leaning areas in various shades of blue and
Republican-leaning areas in various shades of red. Mr. Trende provided no analysis of
the significance of those maps on the issues of compactness and partisan gerrymandering.
Indeed, he provided no analysis of those maps at all.
The Four Challenged Districts in Prince George’s County
It is evident from the map overlay exhibits that, for the four challenged districts that
lie completely within Prince George’s County (Districts 22, 23, 24, and 47), partisan
gerrymandering was not a likely source of their odd shapes. On those maps, past election
results favoring Democrats are represented by shades of blue. Each of the four Prince
George’s County districts lies in a sea of dark blue. Even if one of those districts could be
squared or rounded off in one direction or several, consistent with the other constitutional
63
criteria, the map overlays suggest that the partisan make-up of those districts would not
change.
In written testimony presented to the General Assembly and introduced by
stipulation before the Special Magistrate, the architect of the plan of the Governor’s
commission noted that districts in Prince George’s County would contain majority African-
American and Hispanic populations and that the many municipalities in that county have
“strange” and “contorted” shapes. Special Magistrate Report Appendix II (Written
Testimony of Nathaniel Persily at 22). Consistently with those observations, Ms. Davis of
DLS testified before the General Assembly committees that District 23 “no longer has sub-
districts because of the changing racial make-up in that area” and “moved further south to
respond to the population growth in southern Maryland.” She further testified that
“minimal changes were made to Districts 24, 25, and 26, including a slight move to the
south for Districts 25 and 26 and that was again to respond to the population growth or to
capture that population growth in southern Maryland.”
With respect to these districts, Petitioners’ challenge relied entirely on the “eye test”
and Mr. Trende’s compactness comparisons.51 Neither Mr. Trende nor any other witness
for the Petitioners provided an opinion on whether their shapes and scores on various
51
The Dissent suggests that “the Prince George’s County districts that … border the
District of Columbia arguably provide the best opportunity to create compact districts”
because that boundary is a straight line. Dissent at 36. That suggestion does not account
for the need to give due regard to the oddly-shaped municipalities in that area, such as
Cheverly, Seat Pleasant, and Colmar Manor.
64
metrics were in aid of partisan gerrymandering.52 The eye test and the use of mathematical
measures by themselves seldom amount to “compelling evidence” of a violation of Article
III, §4. The Reock and Schwartzberg tests pre-date the addition of the compactness
criterion to the Maryland Constitution.53 The Polsby-Popper test has been available during
three redistricting cycles.54 None has previously figured prominently in this Court’s review
of a redistricting plan.
As this Court has repeatedly explained, neither the drafters of Article III, §4 nor the
voters who ratified that provision could have intended that the constitutionality of
Maryland’s districts be gauged by the results of quantitative tools devised by political
scientists looking at districting nationally. 1982 Districting, 299 Md. at 687-88. That is
52
Petitioners argued that the Special Magistrate’s denial of their discovery requests
made it difficult to prove their allegations of extreme partisan gerrymandering. Facts
relevant to the dilution of the votes of a discrete partisan group would be proven through
evidence of changes that a redistricting made to the partisan makeup of the challenged
districts; that is the evidence that, depending on the degree of the change, might establish
an impermissible partisan gerrymander. Cf. Rucho v. Common Cause, 139 S. Ct. 2484,
2497 (2019) (“The ‘central problem’ is not determining whether a jurisdiction has engaged
in partisan gerrymandering. It is ‘determining when political gerrymandering has gone too
far.’”) (citation omitted). As discussed below, Petitioners introduced a chart of changes in
precincts, by party affiliation, for District 33. Presumably, if there was evidence that the
partisan make-up of the Prince George’s county districts had changed as a result of the
adopted plan, they could have generated the same information and presented it to the
Special Magistrate. But the record contains no such evidence.
53
Ernest C. Reock, Jr., Measuring Compactness as a Requirement of Legislative
Apportionment, 5 Midwest J. Pol. Sci. 70 (1961); Joseph E. Schwartzberg,
Reapportionment, Gerrymanders, and the Notion of “Compactness”, 50 Minn. L. Rev. 443(1966).
54
Daniel D. Polsby & Robert D. Popper, The Third Criterion: Compactness as a
Procedural Safeguard Against Partisan Gerrymandering, 9 Yale L. & Pol’y Rev. 301
(1991).
65
so for two reasons. First, as this Court’s precedent instructs, anyone familiar with
Maryland and the shapes of its subdivisions and waters can easily tell that quantitative
measurements based on shapes are not likely to be instructive. Id. Second, had the people
of the State intended to incorporate into the compactness provisions a test such as the Reock
test or to mandate particular shapes, they could easily have done so. And, they can yet do
so; for example, the Missouri Constitution was amended in 2020 to specify the shapes that
the mapmakers should try to attain in that largely rectangular state.55 It is not the Court’s
role to insert such provisions into the Maryland Constitution.56
In addressing alleged violations of Article III, §4, this Court has: expressed
skepticism about the usefulness of “a mathematical formulation” in assessing compliance
with Article III, §4, see 1982 Districting, 299 Md. at 688; made clear that an odd shape of
one district in a plan, in isolation, does not by itself evidence a violation, see id.; explained
that so long as a map is not proven to violate the constitutional provisions, the mapmakers
may draw lines to favor or disfavor an incumbent, id. at 687; and ordinarily required “an
55
The Missouri Constitution, Article III, §3, provides “Subject to the requirements
of subdivisions (1) and (2) of this subsection, districts shall be composed of contiguous
territory as compact as may be. Areas which meet only at the points of adjoining corners
are not contiguous. In general, compact districts are those which are square, rectangular,
or hexagonal in shape to the extent permitted by natural or political boundaries.” See
https://perma.cc/Z5EH-ENSK.
56
The Dissent states that “the [Court] misses an opportunity for this Court to refine
a compactness standard that will apply during the current era of high-powered computer
analytics and voter microtargeting used in [mapping].” Dissent at 5. The refinement of
Article III, §4 is a legislative function in the first instance and then a matter for the voters.
Indeed, the Dissent recognizes as much when it quotes the Supreme Court: “Provisions in
state statutes and constitutions can provide standards and guidance for courts to apply.”
Dissent at 32, quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019).
66
affirmative showing ... to demonstrate that such districts were intentionally so drawn to
produce an unfair political result, that is, to dilute or enhance the voting strength of discrete
groups for partisan political advantage or other impermissible purposes.” Id. at 687.
The Petitioners’ evidence concerning compactness did not establish that these four
districts violated Article III, §4.
Testimony Concerning the Three Challenged Districts in Anne Arundel County
Petitioners did provide some additional evidence concerning the other three districts
challenged on compactness grounds. All were located fully or partially in Anne Arundel
County. One of the Petitioners, Delegate Kipke, testified at the hearing and briefly gave
his analysis of the new boundaries of those three districts.57 As noted earlier, Delegate
Kipke was a member of the House Rules and Executive Nominations Committee and was
present during the joint hearing that the committee held with the Senate committee on the
LRAC plan. He did not ask any questions or make any comments during that hearing. Nor
did he ask any questions or make any comments during the floor debate prior to adoption
of that plan by the House of Delegates.
Districts 12 and 21
At the hearing before the Special Magistrate, Delegate Kipke was asked to compare
District 12 under the 2012 districting plan with the updated version of that district in the
2022 adopted plan. He noted that District 12 would now cross from Howard County into
57
Delegate Kipke also testified about the new boundaries of District 31, which was
one of the districts challenged in the petition in Miscellaneous No. 25, but is not a subject
of the Petitioners’ exceptions.
67
Anne Arundel County58 – that is, it contains one of the 15 county crossings in the adopted
plan. He also observed that the district’s senator and the delegate representing the smaller
Anne Arundel County portion of that district will likely be Howard County residents, and
that they would now have votes as members of the Anne Arundel County delegation.
With respect to District 21, Delegate Kipke testified that the version of the district
in the adopted plan was similar to its configuration in the 2012 plan and that it crossed from
Prince George’s County into Anne Arundel County. He stated that the senator and
delegates representing the district were all Democrats and residents of Prince George’s
County and that these legislators would have a vote in the Anne Arundel County
delegation. He said that the “practical effect” would be to “dilute” the vote of
representatives hailing from Anne Arundel County when the legislators met in the
delegation. He did not testify as to any particular partisan effect of the crossing.59
The Petition that initiated Miscellaneous No. 25 had alleged that both of these
districts demonstrated political gerrymandering – in the case of District 12, to protect an
incumbent member of the House of Delegates (Petition, ¶29) and in the case of District 21,
to help “flip” District 33 from Republican to Democratic legislators (Petition, ¶33).
58
Under the prior 2012 districting plan, District 12 crossed from Howard County
into Baltimore County.
59
In testimony presented to the General Assembly with respect to the plan
developed by the Governor’s commission, which was entered into evidence by stipulation
at the hearing before the Special Magistrate, Professor Persily remarked on the difficulty
of avoiding county crossings in Anne Arundel County, as that county is “in the center of
the state,” where “outlying districts converge to get adequate population to comply with
one-person, one-vote.” The plan developed by the Governor’s commission included three
districts that crossed into Anne Arundel County from other counties.
68
However, as to both districts, Delegate Kipke’s analysis did not refer to a partisan effect
but instead focused on the effect that the new district boundaries might have on the make-
up (by residence) of the members of the Anne Arundel County delegation – that is, the
“dilution” of the votes of legislators resident in Anne Arundel County in that delegation.
County delegations are not created by the State Constitution or statute. Rather, they
are creatures of the respective rules of the Senate and House of Delegates and are
denominated as “select committees.”60 In the context of legislative redistricting, this Court
has alluded to the role of a county delegation as acting essentially as the local legislative
body for a county without home rule. 2002 Districting, 370 Md. at 359. While the Anne
Arundel County delegation no doubt performs important functions, it does not function as
the local legislative body. Anne Arundel County is a charter county with home rule.61 In
2004, this Court held that the Anne Arundel County delegation was not subject to the
constitutional one-person, one-vote requirement. McMillan v. Love, 379 Md. 551, 570
(2004); see also 80 Opinions of the Attorney General 53 (1995).
The evidence with respect to Districts 12 and 21 amounted to a critique of their
shapes under the eye test and Mr. Trende’s questionable compactness comparison, and a
concern that a county crossing would dilute votes in the Anne Arundel County delegation.
60
See Department of Legislative Services, Maryland Legislator’s Handbook
Volume 1 (2018) at 22-23. The Maryland Legislator’s Handbook is available online at
https://dls.maryland.gov/pubs/prod/RecurRpt/Handbook_Volume_1_MD_Legislators_Ha
ndbook.pdf .
61
The same is true of the two other counties involved in the county crossings in
these districts – Prince George’s County and Howard County.
69
However, the shapes and scores are not by themselves evidence of a violation of Article
III, §4; a single county crossing is unremarkable in light of the population numbers
indicating the need for county crossings; the “towns” identified in the Petition are not in
fact political subdivisions – i.e., municipalities; and the fact that an otherwise compliant
plan “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.” 2012 Districting, 436 Md. at 133,
quoting 2002 Districting, 370 Md. at 221-22.
The fact that a redistricting plan changes the makeup of a county delegation does
not establish a violation of Article III, §4. The Petitioners did not introduce compelling
evidence that Districts 12 and 21 violated the constraints that the Constitution places on
the political branches when they draw redistricting maps.62
District 33
Delegate Kipke also testified about District 33, which lies entirely within Anne
Arundel County. He said that the mapmakers changed District 33 in such a way as to give
it “jagged” boundaries, that the district is no longer a “generic” central Anne Arundel
62
During her testimony before the General Assembly committees on January 18,
2022, Ms. Davis, the DLS staffer, stated that population from the Odenton area, previously
in District 21, had been moved to District 33, which had been split into three single-member
districts, one for “mostly Odenton,” one for the Broadneck area, and one for the rural or
central portion of Anne Arundel County. She stated that District 33 had added population
from Odenton to reduce the population in District 32. Although Ms. Davis solicited
questions from the legislators about the map, the committee members did not ask her to
elaborate on District 21 or any other district. Nor were any questions about these districts
posed to the members of the LRAC who had been invited to the hearing to answer
questions.
70
County district, and that it now has been divided into three single-member delegate
subdistricts. He did not otherwise analyze the effect of the change in its boundaries.
Delegate Rachel Muñoz, an incumbent Republican delegate from that district, also
testified at the hearing. She had been appointed to fill a vacant House seat in District 33 in
November 2021. She testified that the new boundaries of District 33 in the adopted plan
no longer included her in that district and now placed her neighborhood in adjacent District
31. Petitioners introduced a map showing the line and argued that the line was
“surgical[ly]” drawn that way to remove a sitting Republican delegate from District 33.
Petitioners did not except to the Special Magistrate’s recommendation concerning District
31.
With regard to Petitioners’ allegation that District 33 was designed to dilute the
votes of Republicans, an exhibit that the Petitioners introduced into evidence after the
State’s case, without explanation by any witness, purports to show, by precinct, and without
totals, the movement of Republican and Democratic voters in and out of the District. Also,
the parties stipulated to voter registration data by district before and after the LRAC plan.
Petitioners represent that these exhibits show that the percentage of registered Democrats
in the District has increased by 3%, from approximately 38% to approximately 41%, and
registered Republicans have declined, from 38% to 35%. An exhibit prepared by Mr.
Trende, but that he was not asked to analyze, shows that the district, as configured now, is
comprised of voters who voted heavily for Governor Hogan, a Republican, in 2018. The
evidence of intended dilution of Republicans’ opportunity to elect candidates of their own
party therefore is not compelling. In any event, “an intentional effort to district so as to
71
create a balance between two primary partisan political parties does not violate” the federal
constitution.63 1982 Districting, 299 Md. at 673-74.
The assertion that the District 33 line was “surgically” drawn in order to remove
Delegate Muñoz from the district seemingly poses a closer question: the map itself permits
an inference that the mapmakers bumped the line out to remove only a small area from the
district. The record, however, does not compel that inference.64 In any event, the issue is
once again resolved by the fact that Maryland’s Constitution assigns the drawing of maps
to the political branches and not to this Court. Accordingly, the fact that a plan “may have
been formulated in an attempt to ... help or injure incumbents or political parties, or to
achieve other social or political objectives, will not affect its validity.” 2002 Districting,
370 Md. at 322; see also 2012 Districting, 436 Md. at 134 (stating that, within the
constraints of State and federal law, “[t]he political branches may pursue a wide variety of
63
With regard to District 33, the Dissent states that “[i]t is time for this Court to
adopt a standard to apply for extreme partisan gerrymandering ….” Dissent at 55. The
Petitioners did not introduce any evidence to suggest that a 3% swing, in a district that now
comprises a large number of voters who voted Republican in the last gubernatorial election,
is “extreme.” Even so, it is not the Court’s role to legislate districting standards. See
footnote 56.
64
The map also permits an inference that the line that allegedly targeted the area
that includes Delegate Muñoz’s neighborhood gave due regard to a natural boundary. The
jagged line follows a river immediately below that area and follows Ritchie Highway to its
immediate east. More to the point is that the adopted plan puts the Delegate’s residence in
District 31, which contains a higher percentage of registered Republicans than District 33.
Given the conflicting inferences, and Ms. Davis’ testimony that population from
Odenton was added to District 33 to reduce the population in District 32, the evidence as
to District 33 is not compelling.
72
objectives, including ... aiding political allies or injuring political rivals”). The facts to
which Delegate Muñoz testified thus did not state a claim of a constitutional violation.
In sum, the Petitioners did not present compelling evidence that Districts 12, 21, or
33 violated Article III, §4.
2. Contiguity and Due Regard to Natural Boundaries
The Petitioners faulted just one district with respect to the criteria of contiguity and
due regard for natural boundaries – District 27. Under the adopted plan, District 27
encompasses parts of Calvert, Prince George’s, and Charles counties and is divided into
three single-member subdistricts. Subdistrict 27A is split between Charles and Prince
George’s counties; subdistrict 27B is split between Calvert and Prince George’s counties;
and subdistrict 27C lies completely in Calvert County. Under the prior 2012 districting
plan, District 27 had encompassed parts of the same three counties and had also been
divided into three subdistricts, although the boundaries had shifted under the adopted plan
due to population changes. As noted above,65 the populations of all three counties had
increased, but the increases in Charles and Prince George’s counties were significantly
greater, both in percentage terms and absolute numbers, than the increase in Calvert
County.66
65
See Part II.B of this opinion.
66
The parties stipulated to a “malapportionment report” that showed, for each
existing district and subdistrict, its deviation under the 2020 census figures from the “ideal”
population for the particular type of district. As of the 2020 census, the existing subdistrict
27A deviated from the ideal for a single-member subdistrict by 15.48%; subdistrict 27B by
3.98%; and subdistrict 27C by 4%.
73
At the joint committee hearing on the LRAC plan in the General Assembly, Ms.
Davis of DLS testified that District 27 “continues to be in three counties ... and is right
where the three counties converge.” She stated that subdistrict 27A “picks up more of
Charles County to accommodate for the growth in that county.” She further testified that
the three single-member subdistricts were intended to “make sure that each county has the
possibility to elect their own representation.” She stated that the boundaries of District 29,
which lies along the Patuxent River, and of District 28, a small portion of which reaches
that river, were “changed minimally for population balancing purposes.”
At the hearing before the Special Magistrate, Delegate Mark Fisher, the lead
Petitioner in Miscellaneous No. 25 and the delegate who represents subdistrict 27C,
testified as to his concerns about District 27. He testified that, while his own subdistrict
is located entirely in Calvert County, the portions of subdistrict 27B in Prince George’s
County and Calvert County are divided by the Patuxent River. He further testified that
there is no bridge across that river within that subdistrict so that a person driving from one
side of the subdistrict to the other would have to leave the subdistrict to get to the other
side. He said that, currently, the senator representing District 27 is from Prince George’s
County. He opined that, under the adopted plan, only one delegate is likely to be from
Calvert County, which has also been the case under the prior 2012 districting plan. He
stated his view that subdistrict 27B was drawn without regard to natural boundaries and
that Calvert County, as a commissioner county dependent on its State delegation to
introduce local legislation in the General Assembly, ought to have two subdistricts of its
74
own.67 Delegate Fisher neither identified the parties to which the current legislators from
District 27 belonged nor provided any analysis that would suggest partisan
gerrymandering of the district.
In recommending that the Court deny the Petition in Miscellaneous No. 25, the
Special Magistrate found that the State had explained the need to cross county lines in
order to account for population shifts. He did not specifically address whether the absence
of a bridge over the Patuxent River within subdistrict 27B violated either the contiguity or
the due regard criteria of Article III, §4.
The Petitioners excepted to the Special Magistrate’s recommendation on the ground
that the district violated the contiguity and due regard criteria of Article III, §4,68 because
it is divided among three counties and because there is no bridge within subdistrict 27B
providing direct access between the two portions of that subdistrict.
In our view, the Petitioners did not present compelling evidence that the contiguity
and due regard criteria were violated in the re-design of District 27 generally or of
subdistrict 27B in particular. As for the county crossings, which were also part of the prior
67
Delegate Fisher stated that the population of Calvert County is over 90,000. As
noted earlier, that population is less than what would be needed to create a legislative
district, but is slightly more than the population of an “ideal” two-member district. See
Part II.B of this opinion.
68
The Petition had originally alleged that District 27 also failed to give due regard
to the boundaries of political subdivisions because it divided six “towns” as well as
encompassing parts of three counties. However, the “towns” identified in the Petition are
not actual political subdivisions – i.e., municipalities – and Petitioners did not press that
contention before us. The Petition did not allege a lack of compactness as to District 27;
in fact, Mr. Trende conceded that it is “reasonably compact.”
75
approved plan and one of which also appeared in the plan of the Governor’s commission,
the Court has indicated that “[i]n the absence of evidence of invidious, impermissible
discrimination, the choice of where [a 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.” 2012 Districting, 436 Md. at 159.
As for the contiguity requirement, the Court has previously noted that the drafters
of the constitutional provision intended that no district cross the Chesapeake Bay, but that,
otherwise, “separation of two areas by water does not render the areas non-contiguous.”
2002 Districting, 370 Md. at 344. The bisection of subdistrict 27B by the Patuxent River
may pose a closer question on whether due regard was given to natural boundaries.
However, it is apparent that the prior 2012 plan similarly split the subdistrict and that one
driving from one side of the subdistrict to the other would have used the same bridges (then
in a different subdistrict of District 27) as now. The only difference is that population shifts
and the need to work in from the outside geographically in designing districts had shifted
district boundaries slightly so that the same bridges were in a different district rather than
in a different subdistrict. The configuration of districts in Southern Maryland was driven
by the above average increases in population, both in absolute numbers and percentage-
wise, in both St. Mary’s County (+8.2%) and Charles County (+13.7%). Both counties
occupy the southern edge of the State, and the mapmakers worked from the edges inwards.
That southernmost district had to borrow population from Calvert, which in turn had to
borrow population from neighboring counties.
76
In sum, the record does not contain compelling evidence that District 27 generally,
or subdistrict 27B in particular, violates the contiguity or due regard provisions of Article
III, §4.
3. Legislative Privilege
The Petitioners excepted to the Special Magistrate’s ruling sustaining the State’s
assertion of legislative privilege in response to certain discovery requests. The discovery
requests concerned the identity of the persons responsible for the design of the challenged
districts, who instructed those persons on the criteria to be used in doing so, any specific
instructions given concerning the challenged districts, and any criteria used with the
computer program that was used in the drawing of the districts.69
Legislative Privilege under Maryland Law
The legislative privilege applicable to State legislators and their staffs in Maryland
derives from the Maryland Constitution as well as from the common law. Article 10 of the
Maryland Declaration of Rights provides “[t]hat freedom of speech and debate, or
proceedings in the Legislature, ought not to be impeached in any Court of Judicature.” A
related provision of the Maryland Constitution provides legislators with immunity from
civil actions or criminal prosecution for actions or speech related to legislative activity.
Maryland Constitution, Article III, §18.70 Another underpinning of legislative privilege is
69
With respect to the computer program itself, the State did not assert legislative
privilege and identified for Petitioners the computer program that was used.
Article III, §18 provides that “[n]o Senator or Delegate shall be liable in any civil
70
action, or criminal prosecution, whatever, for words spoken in debate.”
77
Article 8 of the Declaration of Rights, which provides for the separation of powers of the
Legislative, Executive, and Judicial branches of State government.71 See Murphy v. Liberty
Mutual Insurance Co., 478 Md. 333, 370-82 (2022); see also Hamilton v. Verdow, 287 Md.
544, 553-54 n.3, 556 (1980).
With respect to the common law, this Court has recognized that the doctrine of
legislative immunity, like the doctrine of judicial immunity, is also historically rooted in
the English common law, which was adopted for Maryland in the Maryland Declaration of
Rights. See Maryland Declaration of Rights, Article 5; Gill v. Ripley, 352 Md. 754, 763
(1999) (“An absolute immunity for legislators, with respect to conduct and statements
made in the course of legislative proceedings, is as venerable as judicial immunity, having
been traced back to 1399.”). As noted by this Court in a civil fraud case involving a
Governor’s exercise of the legislative function of vetoing a bill, courts have deemed the
common law doctrine of legislative immunity to be broader than that conferred
constitutionally and have applied it where a particular constitutional provision did not
apply to conduct that was legislative in nature. Mandel v. O’Hara, 320 Md. 103, 112
(1990). There, the question was not whether Maryland law recognizes legislative
immunity under the common law but rather whether the exercise of a veto fell within it.
After explaining the policy reasons behind the doctrine as applied to legislators acting
within their legislative function, the Court stated: “There is no policy reason why
71
Article 8 provides “[t]hat the Legislative, Executive and Judicial powers of
Government ought to be forever separate and distinct from each other; and no person
exercising the functions of one of said Departments shall assume or discharge the duties of
any other.”
78
legislators should enjoy absolute immunity for their legislative acts but that a Governor
should have only a qualified immunity for his or her legislative function of vetoing or
approving legislation.” Id. at 134.
The Court of Special Appeals has had occasion to examine the constitutional
privilege that applies to State lawmakers on four occasions. In two instances, the
intermediate appellate court determined the breadth of an analogous common law
legislative privilege possessed by members of local legislative bodies and the extent to
which it could be asserted in response to a discovery request. See Montgomery County v.
Schooley, 97 Md. App. 107 (1993) (common law legislative privilege applicable to
discovery requests directed to member of county council); Floyd v. Baltimore City Council,
241 Md. App. 199 (2019) (common law legislative privilege applicable to discovery
requests directed to members of City Council).72 Although neither decision is binding on
this Court, the two decisions provide background on the origin of the doctrine of legislative
privilege and are informative on its application.
Schooley was a challenge to the adoption of a redistricting plan for the Montgomery
County Council pursuant to the County charter. The challengers sought to take the
deposition of a Council member concerning the adoption of amendments to the bill that
enacted the plan. The challengers stated that they were not seeking information about the
72
The other two cases concerned the aspect of legislative privilege that confers
immunity from prosecution. State v. Holton, 193 Md. App. 322, 338-62 (2010) (common
law legislative privilege of member of City Council provided immunity from criminal
prosecution), aff’d on other grounds, 420 Md. 530 (2011); Blondes v. State, 16 Md. App.
165 (1972) (constitutional provision and related statute provided for limited exception from
legislative immunity), overruled on other grounds, 273 Md. 435 (1975).
79
member’s “legislative intent,” but rather information “about the procedural aspects of the
enactment.” 97 Md. App. at 111. The County sought a protective order against the
deposition, asserting legislative privilege; the council member apparently took no position
on the request for a protective order. The challengers insisted that the deposition should
go forward with the member asserting the privilege on a question-by-question basis. The
circuit court denied the motion for a protective order, and the County appealed.
In a scholarly opinion by then-Chief Judge Wilner, the Court of Special Appeals
vacated the circuit court’s denial of the protective order and remanded for that court to
explore whether there was any area of inquiry that would not be subject to the privilege.
In sketching the scope of the common law legislative privilege applicable to local
legislators, the intermediate appellate court traced the history of the legislative privileges
applicable to members of Congress and to State legislators to the common origin of those
privileges in the English Bill of Rights. The court noted that legislative privilege has “long
been regarded as an important protection of the independence and integrity of the
legislature and, in this country, as also reinforcing the core doctrine of separation of
powers.” Schooley, 97 Md. App. at 114 (citations and internal quotation marks omitted).
The legislative privilege is to be read broadly to serve that purpose; it applies “not only [to]
words spoken in debate but anything generally done in a session of the [legislature] by one
of its members in relation to the business before it.” Id. (citations and internal quotation
marks omitted).
The Court of Special Appeals further noted that one aspect of legislative privilege
is a testimonial privilege that protects a legislator from questioning other than in the
80
legislative body itself. 97 Md. App. at 116 (citing Gravel v. United States, 408 U.S. 606(1972)). The intermediate appellate court summarized the testimonial privilege:
… a legislator, even if not a party to the action and thus not subject to
any direct consequence of it, cannot be compelled to explain, other than
before the legislative body of which he is a member, either his legislative
conduct or the “events that occurred” in a legislative session.
Id. at 117.
In Floyd, an opponent of a new zoning map adopted by the Baltimore City Council
alleged irregularities in its adoption and filed a “Petition for Enforcement of the Open
Meetings Act.” 241 Md. App. at 206. After denial of the City’s motion to dismiss, the
plaintiff sought the testimony of two Council members and a staff member. The City
asserted legislative privilege and moved to quash the subpoenas to the council members
and to limit the staff member’s testimony to compliance with the Act. The circuit court
granted the motion and, following trial of the case, ruled in favor of the City because the
plaintiff had failed to produce sufficient evidence of a willful violation of the Act. Id.
On appeal, the plaintiff alluded to the requirement that she had to prove a “willful”
violation of the Act and argued that, because the council members were “uniquely
positioned and qualified to elucidate the proceedings” in question, the assertion of
legislative privilege severely prejudiced her in pursuing her claim. The Court of Special
Appeals reprised its analysis and holding in Schooley and reached the same conclusion,
affirming the circuit court’s discovery ruling. It stated that “even if we perceived a tension
between the doctrine of legislative privilege and the requirements of the [Open Meetings]
81
Act, a judicial carve-out of an exception to the application of that doctrine in such cases
would be inappropriate” and was a matter for the General Assembly. 241 Md. App. at 214.
Consistent with these principles, confidentiality is a core feature of the drafting
process before a bill is filed. See Department of Legislative Services, Maryland
Legislator’s Handbook Volume 1 (2018) (“DLS Handbook”) at p.71.73 There is no
question that the privilege applies to the information sought by Petitioners, as they seek
non-public information concerning the drafting of legislation. The question is whether that
confidentiality – the legislative privilege – should be set aside in this instance.
The Redistricting Process and Privileges
As explained earlier, under the Maryland Constitution, each of the three branches
of State government can be involved in the drafting of a redistricting plan. The Executive
Branch – i.e., the Governor – is commanded by the Constitution to draft a plan; the
Legislature has discretion to draft its own plan; and the Judicial Branch – this Court – may
ultimately (as has happened twice) draft a plan as a back stop when a plan drafted by one
of the other branches falls short of the constitutional requirements.
The Constitution requires some transparency in the redistricting process, as Article
III, §5 directs the Governor to hold public hearings on the Governor’s plan, which might
otherwise be drafted completely in private.74 Transparency is already built into the
73
See footnote 60 above.
74
Indeed, the failure of the Governor to hold public hearings led this Court to
invalidate the first redistricting plan in the modern history of Maryland state redistricting.
See 1973 Districting.
82
legislative process, which involves public committee hearings and votes on proposed
legislation and public proceedings on the floor of each house to debate and vote on
proposed legislation. See Maryland Constitution, Article III, §21 (doors of Legislature to
be open); GP §§3-101(f), (j), 3-102 (State Open Meetings Act applicable to legislative, as
well as “quasi-legislative,” functions of a public body); see also Avara v. Baltimore News
American, 292 Md. 543, 553 (1982) (State Open Meetings Act applies to legislative
conference committee).
The deliberations of each branch are also protected to some extent by an evidentiary
privilege – the Governor by executive privilege and, as indicated in the Mandel decision
described above, also by legislative privilege; and this Court by the judicial privilege that
protects its deliberations.75 As noted above, the legislative privilege applicable to members
of the General Assembly and their staffs similarly protects them from questioning about
the performance of their legislative duties, other than in the legislative body itself. See
DLS Handbook at 71.
Our review of the past redistricting decisions of this Court and the reports of the
special masters appointed in those cases reveals no instance in which matters covered by
If the Governor creates a committee by executive order, it will be subject to the State
Open Meetings Act. Maryland Code, General Provisions Article (“GP”), §3-101 et seq.
75
The basis and boundaries of judicial privilege are a bit amorphous, perhaps
because of the infrequency with which it needs to be asserted. See, e.g., In the Matter of
Certain Complaints under Investigation by an Investigating Committee of the Judicial
Council of the Eleventh Circuit, 783 F.2d 1488, 1518-20 (11th Cir. 1986); In re United
States, 463 F.3d 1328, 1332 n.4 (Fed. Cir. 2006); see generally Charles W. Sorenson, Jr.,
Are Law Clerks Fair Game? Invading Judicial Confidentiality, 43 Val. U. L. Rev. 1, 47-
50 (2008).
83
the constitutional legislative privilege, executive privilege, or the common law judicial
privilege were part of the decision in those cases.76 In each instance, the Court and the
special master analyzed the plan in question in the same manner that this Court typically
analyzes other pieces of legislation – looking to the actual terms of the plan and at the effect
of the plan and any alternative plans offered by challengers, without inquiry into the
specific motives of any individual drafter. See, e.g., 2002 Districting, 370 Md. at 339-43,
347 (describing special master finding merit in one challenger’s objection to the adopted
plan and rejecting an alternative plan proposed by another challenger on the basis that the
alternative plan “advances partisan interests,” but not basing that finding on testimony as
to individual motives). So, too, did the Special Magistrate in this case.
As with other legislation, the issue is not whether a sponsoring legislator’s personal
motives were noble or nefarious, but what does the legislation actually provide? The
sponsoring legislator’s motives or communications with staff are not probed – or even
considered relevant; after all, it is the body, not the individual legislator, that ultimately
adopts legislation. See Baltimore Retail Package Stores Ass’n v. Board of License
Commissioners, 171 Md. 426, 430 (1937); 2A Sutherland, Statutes and Statutory
Construction (7th ed.), §§48.12, 48.17. In the specific context of reviewing legislative
resolutions related to redistricting, this Court has functioned no differently.77
76
None of those decisions mentions any discovery requests for privileged material
or assertions of legislative privilege, and the analyses of the plans in question do not refer
to anything that would have been privileged.
77
In his dissent, Judge Gould cites a case concerning the invocation of the Fifth
Amendment privilege against self-incrimination in a civil context and, by analogy,
84
Thus, this Court typically looks first to the plain language of legislation and
frequently to its legislative history – which does not involve breaching legislative privilege.
Here the joint resolution describes the plan, which is graphically represented by maps (as
to the accuracy of which there appears to be no dispute). Although there is no requirement
in the State Constitution that the Legislature hold hearings before introducing a resolution
proposes that the Court draw an adverse inference from the State’s assertion of legislative
privilege. For example, he would infer, from the State’s claim of legislative privilege in
response to a request for information about instructions given to mapmakers, that any such
instructions violated the State and federal constitutions. Dissent (Gould, J.) at 5. However,
there are significant distinctions between the two contexts that render the analogy inapt.
One difference between the Fifth Amendment privilege and the legislative privilege
is that the Fifth Amendment privilege embodies a notion of potential incrimination and
thus goes to the content of the information requested. By contrast, the legislative privilege
does not turn on whether the information is potentially incriminating or otherwise adverse
to the one who claims it. Thus, it is reasonable to infer – at least in the context of a civil
case – that the information protected from disclosure when a witness invokes the Fifth
Amendment privilege is adverse to that witness. The same cannot be said about the
invocation of legislative privilege. It is not inherent in the nature of the privilege that the
information it protects is necessarily adverse to anyone.
Another difference is that, unlike the Fifth Amendment privilege, the purpose of the
legislative privilege is not to protect an individual legislator, but rather to advance a public
interest. It is rooted not in individual rights, but in separation-of-powers principles
applicable to the branches of State government. See Hamilton v. Verdow, 287 Md. 544,
554, 556 (1980) (regarding executive privilege, noting that “[a]s it has roots in the
constitutional doctrine of separation of powers, a similar privilege extends to the judicial
and legislative branches as well.”). For that reason, too, the State’s assertion of the
privilege, by itself, does not imply that members or staff of one of the other branches of
government, whether executive or legislative, acted illegally in some way.
That is particularly so in this case, where the Petitioners, equipped with data on the
partisan make-up of the various districts and with an expert witness who had opined on
partisan gerrymandering claims in other states, nonetheless introduced no evidence or
analysis based on that data that the LRAC plan would dilute the votes of any discrete group
of voters in the challenged districts. Instead, their evidence focused on the physical
configuration of a few districts.
85
embodying a plan, the LRAC held 16 open meetings following release of the census data.
Despite the abbreviated timeline of this cycle, the legislative committees to which the
resolutions were referred held two public hearings at which the members had the
opportunity to, and were told that they should, ask questions of the chair of LRAC and, at
one hearing, the director of LRAC’s staff. Two Petitioners in this case were members of
the House committee to which the joint resolutions were referred and they attended both
hearings; one Petitioner asked questions. There were floor debates in both houses, during
which members could – and did at some length – ask questions of the member presenting
the resolution that ultimately passed. Some of those questions were similar to the questions
posed by Petitioners in their discovery request.
Therefore, if the preparation of the LRAC districting maps falls within the
legislative conduct protected by the Speech and Debate Clause, inquiries into that process
belong in the Legislative Branch and not in the Judicial Branch. That is particularly so
when the parties who seek to inquire into legislative motives are themselves members of
the legislative branch; it is not for this Court to assess the adequacy of the opportunity of
legislators to seek information during the legislative process, whether in the committee
hearings or in floor debate. Put another way, two of the Petitioners in Miscellaneous No.
25 had the opportunity to question the LRAC chair, a staff member, and the sponsor of the
legislation in the joint committee hearing on the bill. Every delegate had the opportunity
to ask questions during the floor debate in the House. One member did engage in an
86
extended discussion posing questions to the House majority leader, an LRAC member,
about the LRAC’s process, staff, and meetings.78
The LRAC map was drafted by DLS – an agency of the General Assembly – and
was introduced, debated on, and adopted as legislation. The drafting of that legislation fell
within the legislative conduct protected by the Speech and Debate Clause. Therefore,
under State law, inquiries into DLS’s drafting process properly belonged in the General
Assembly.
Legislative Privilege under Federal Common Law
Petitioners rely primarily on a federal district court opinion on a discovery dispute
in a case concerning a federal constitutional challenge to Congressional redistricting.
Benisek v. Lamone, 241 F. Supp. 3d 566 (D. Md. 2017).79 The plaintiffs in Benisek had
challenged the Congressional districts that the Governor had proposed, and the General
Assembly had approved, after the 2010 census. As described by the federal district court,
their complaint alleged “in essence that the Plan’s redrawing of the Sixth District’s
boundaries constituted unlawful retaliation in violation of their rights under the First
Amendment and Article I [of the United States Constitution].” 241 F.Supp.3d at 570. To
succeed on their claims, the federal district court concluded, the plaintiffs would have to
78
The Dissent surmises that the Petitioners may have concluded that asking
questions in committee would be pointless because they would “not change any votes.”
Dissent at 26. Whether or not that is so, the Petitioners were uniquely positioned to request
the information and chose not to do so.
79
The Supreme Court later vacated the district court’s opinion on the merits. See
Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
87
prove, among other things, that the map drawers had the “specific intent to impose a burden
on [them]” because of how they voted or their political affiliation. Id. (internal quotation
and citation omitted). Accordingly, the plaintiffs sought to subpoena and depose members
of the Governor’s redistricting advisory committee, including several sitting state
legislators. The proposed deponents filed motions to quash on the grounds that legislative
privilege shielded the information that the plaintiffs were seeking; the plaintiffs in turn
filed motions to compel. Id. at 570-72.
In addressing those motions, the federal district court held that the members of the
advisory committee, including the non-legislators, enjoyed a qualified legislative privilege
under federal common law that could be denied “where important federal interests are at
stake.” 241 F. Supp. 3d at 574. Applying a five-factor test80 to balance the competing
interests of the litigants, the court concluded that federal legislative privilege did not protect
conversations and other communications between and among the legislators and some
legislator-staff communications. Id. at 575-77.
The Special Magistrate stated that the Benisek discovery ruling was inapposite to
this case because (1) that case was an action in federal court asserting that the
Congressional redistricting process violated federal law and (2) the Supreme Court had
80
The five-factor standard, which was derived from the deliberative process
privilege for executive branch actors, requires a court to weigh: (1) the relevance of the
evidence sought; (2) the availability of other evidence; (3) the seriousness of the litigation;
(4) the role of the State, as opposed to individual legislators, in the litigation; and (5) the
extent to which the discovery would impede legislative action. Benisek, 241 F. Supp. 3d
at 575.
88
ultimately vacated and remanded the case with instructions to the lower court to dismiss
the action. See Rucho v. Common Cause, 139 S. Ct. 2484 (2019).
We agree that the Benisek district court ruling is inapposite to this case, given the
context in which it was made and in light of the Supreme Court’s later holdings in that
case. The issue arose in that case when, in 2017, six years after the adoption of the
Congressional map, the Benisek plaintiffs asked the federal district court to issue a
preliminary injunction against the election official defendants to enjoin them from holding
the 2018 Congressional election under that map. See Benisek v. Lamone, 138 S. Ct. 1942,
1943 (2018). The federal district court denied that motion and stayed further proceedings
pending the Supreme Court’s disposition of another districting case. Id. In seeking to
establish that they had exercised reasonable diligence, as required of a party seeking a
preliminary injunction, the plaintiffs attributed their delay to the State defendants’
opposition to their discovery requests. The Supreme Court found that the plaintiffs’ delay
was instead attributable to the fact that they had waited until 2016 to allege their retaliation
claim. Id. at 1944. The Court stated: “Plaintiffs’ newly presented claims – unlike the
gerrymandering claim presented in the 2013 complaint – required discovery into the
motives of the officials who produced the [map].” Id. (emphasis added). It thus appears
that a gerrymandering claim, by itself, does not defeat the legislative privilege under the
federal common law and entitle a plaintiff to discovery into the motives of those who
produced the map. Later, in Rucho, the Supreme Court vacated the lower court’s decision
that the Benisek plaintiffs had proven their case on the merits. In doing so, the Court
89
rejected the use of specific intent as an element of a constitutional challenge to a district.
Rucho, 139 S. Ct. at 2504.
Thus, it is at best unclear whether the holding concerning the federal common law
privilege applicable to State lawmakers in Benisek survives the vacatur of that decision by
the Supreme Court. It may well be that a federal court would apply that five-factor test
with respect to privileges asserted by any of the State actors involved in redistricting when
a plaintiff has alleged a claim, such as invidious racial or ethnic discrimination, that
implicates the mapmakers’ specific intent. But that is distinct from the question that was
before the Special Magistrate and is now before this Court. Petitioners did not allege such
claims, and the Benisek discovery ruling does not apply here.
We conclude that the Special Magistrate properly sustained the State’s assertion of
legislative privilege in response to the Petitioners’ discovery requests.
G. A Word on the Dissenting Opinions
We have already addressed, in previous sections of this opinion, the two issues
discussed in Judge Gould’s dissenting opinion81 and many of the points made by Chief
Judge Getty’s dissenting opinion.82 Chief Judge Getty’s dissenting opinion almost entirely
relates to the districts challenged in Miscellaneous No. 25 and briefly discusses the
challenge made in Miscellaneous No. 27; he apparently has no quarrel with our disposition
of the petitions filed in Miscellaneous Nos. 24 and 26. In this section, we address certain
81
See footnotes 31 and 77 above.
82
See footnotes 25, 34, 51, 56, 63, and 78 above; see also footnote 98 below.
90
issues raised by Chief Judge Getty’s dissenting opinion that are salient to Miscellaneous
No. 25, to the extent they have not been addressed earlier in this opinion.
1. The Alleged Discrepancy Between the Parties’ Stipulation and the Planning
Data
The Dissent contends that Joint Exhibit F, part of the Stipulation of Facts that the
parties presented to the Special Magistrate, is inaccurate. The Dissent asserts that the
stipulation does not correlate with the Department of Planning data categorizing adjusted
population figures from the 2020 Census. There are at least three reasons why that
assertion lacks merit.
The Parties Stipulated to Joint Exhibit F
Joint Exhibit F was provided to the Special Magistrate as part of a stipulation entered
into by the parties. It contains extensive data concerning adjusted population figures for
the districts and subdistricts in the adopted plan broken down by certain racial and ethnic
groups, voting age population, party registration, and other criteria. It was introduced as
background information that was not in dispute and was not the subject of any extended
discussion during the hearing before the Special Magistrate. The Dissent suggests that the
Special Magistrate, instead of focusing on the material facts that the parties contested,
should have spent the limited time available to him questioning and recomputing the
stipulated evidence.
No Allegation of “Discrepancies” in the Data was Made by Anyone Until Now
Not only did no party to this case question the accuracy of the data in Joint Exhibit
F, no member of the Court has previously raised any issue about that data. No question
91
was posed to the parties either before, at, or even after oral argument; the issue appears for
the first time in the Dissent. In essence, the Dissent would have the Court base a decision
on the Dissent’s belated (and, as we shall see, flawed) assertion of “discrepancies” in data
to which these ably-represented parties had stipulated without giving them the opportunity
to dispel its concerns. It faults the parties and Special Magistrate for failing to answer a
question that was never asked.
The Dissent’s Charts and Computations are Inaccurate
The Dissent includes 14 charts related to the eight districts that are challenged in
Miscellaneous No. 25 and asserts that the numbers in those charts, and computations that
the Dissent makes based on those numbers, demonstrate that there are “discrepancies”
between Joint Exhibit F and the adjusted population data published by the Department of
Planning.
But the real discrepancy appears to be in the labels that the Dissent uses in its charts
versus the numbers actually included in the charts under those labels and in the
computations the Dissent makes following the charts. The Dissent labels the columns of
each chart as “Percentage of Total Adjusted Population” for various racial groups, ending
with a catch-all column for “Percentage of Total Adjusted Population: Other.” Each chart
includes a row labeled “Department of Planning” that the Dissent represents to be
percentages provided in the Department of Planning’s adjusted population data for these
various groups, and another row labeled “Exhibit F” under the same columns. The
implication is that each column presents an apples-to-apples comparison of the Department
of Planning data with that in Joint Exhibit F. However, a closer examination of the actual
92
Department of Planning data reveals that the Dissent’s charts and computations
mischaracterize that data and that the Dissent’s charts and computations do not provide an
apples-to-apples comparison.
As each of the Dissent’s charts specifies certain racial categories of the adjusted
population and a catch-all “other” category, one would assume that these percentages in
the rows attributed to the Department of Planning data should add up to 100% of the total
adjusted population. But, as it turns out, none of them do. For example, on p. 96 of the
Dissent, there is a chart that, for subdistrict 12A, purports to list the breakdown of the
adjusted population of that subdistrict in the Department of Planning data under categories
labeled “White,” “Black,” “Hispanic Origin,” “Asian,” and “Other.” If one adds the
percentages for each of those categories in the row labeled “Department of Planning,” one
obtains a total of 94.17% (46.75% White + 23.84% Black + 8.85% Hispanic Origin +
14.05% Asian + 0.68% Other = 94.17%). The Dissent’s summary of the Department of
Planning data for subdistrict 12A thus leaves out more than 5% of the subdistrict’s adjusted
population.
Similarly, directly following the chart for subdistrict 12A, the Dissent lists adjusted
population numbers for that district for the same racial categories. Those figures total
81,435 people (40,425 White + 20,615 Black + 7656 Hispanic + 12,147 Asian + 592 Other
= 81,435). However, the actual Department of Planning data indicate that the adjusted
population for that subdistrict is 86,473.83 The numbers presented by the Dissent
83
See Maryland Department of Planning, Maryland 2022 Legislative Districts
with 2020 Total Adjusted Population, available at https://perma.cc/7B95-4Q7E.
93
undercount the subdistrict’s adjusted population, as reported by the Department of
Planning, by more than 5,000 people.
A similar pattern holds true for all 14 sets of charts and computations in the
Dissent.84 Thus, the Dissent’s comparisons in its charts, and the computations that appear
below each chart, all involve a consistent undercount by the Dissent in the figures it
attributes to the Department of Planning compared to the Department of Planning’s actual
data.
84
The following summarizes the undercount in the Dissent’s charts and
computations, by percentages and numbers of people, compared to the actual Department
of Planning (“MDP”) data:
Undercounts in Dissent’s Charts and Computations
District Percent of Adjusted pop Undercount of adjusted pop
in Dissent charts in Dissent computations
compared to MDP data compared to MDP data
Subdistrict 12A 94.17% -5,038
Subdistrict 12B 93.86% -2,787
District 21 96.36% -5,664
District 22 96.69% -4,523
District 23 95.46% -8,989
District 24 96.79% -4,362
Subdistrict 27A 94.29% -2,508
Subdistrict 27B 94.27% -2,599
Subdistrict 27C 93.72% -2,859
Subdistrict 33A 93.06% -2,924
Subdistrict 33B 94.33% -2,580
Subdistrict 33C 94.54% -2,425
Subdistrict 47A 97.21% -2,540
Subdistrict 47B 98.37% -742
See Dissent at 96-106 and compare with Maryland Department of Planning, Maryland
2022 Legislative Districts with 2020 Total Adjusted Population, available at
https://perma.cc/7B95-4Q7E.
94
Where are the people missing from the Dissent’s summaries of the Department of
Planning data? They actually do appear in the data itself; the Dissent has simply
overlooked them. When one takes a closer look at the Department of Planning’s data, it
becomes evident why the Dissent’s summaries of the Department’s data do not add up to
100% and thus undercount the adjusted population for various racial and ethnic groups, as
well as the total adjusted population. The Department’s spreadsheets have separate
columns for people who identify themselves as belonging to one racial group (“One Race”)
and for people who identify themselves as belonging to more than one racial group (“Two
or More Races”). People in the latter category – i.e., those who identify with more than
one racial category – were excluded from the Dissent’s summaries of the Department’s
adjusted population data.85
For example, the percentages that the Dissent has included under the label
“Percentage of Total Adjusted Population: Black” in its charts is actually the Department
of Planning’s number for “Percent of Total Adjusted Population – Black or African
American Alone” (emphasis added) – i.e., those who identify themselves as being only
Black or African American. The Dissent makes the same mistake in the figures that it
represents to be the Department of Planning’s figures for the “White,” “Asian,” and
“Other” categories in its charts and computations. The Dissent’s charts and computations
85
Also excluded from the Dissent’s charts are the adjusted population data for two
specific racial groups that appear in the Department of Planning data – (1) “American
Indian and Alaska Native Alone” and (2) “Native Hawaiian and Other Pacific Islanders
Alone.” Although the Department of Planning numbers for both of these categories are
generally small, the Dissent does not include them in its column labeled “Other” – or
anywhere else in its charts and computations.
95
take no account of people who identify as belonging to more than one racial group, even
though the Department of Planning – like the Census – actually includes figures for those
individuals in its adjusted population data.86
The Dissent asserts that the “discrepancies” that it perceives suggest that the adopted
plan violates the prohibition against racial and ethnic discrimination. Dissent at 90, 106.
We are willing to accept that the Dissent’s undercounts of minority population numbers in
the rows it labels “Department of Planning” in its charts are attributable to an oversight.
How those undercounts by the Dissent would establish a violation of federal districting
86
The numbers in the rows in the Dissent’s charts labeled “Exhibit F” were apparently
derived from the spreadsheets stipulated to by the parties as Joint Exhibit F. If one adds
the percentages in the various categories in those rows, one finds that they total slightly
more than 100% in each instance. That may be due to the fact that a person who identified
with more than one racial group is included Joint Exhibit F in each group the person
identified with.
The Dissent notes that the figures under the column labeled “Hispanic Origin” in its
charts are identical in each instance for its rows labeled “Exhibit F” and “Department of
Planning.” The Dissent is seemingly perplexed that these figures do not exhibit the same
“discrepancy” as the other racial categories. Dissent at 94. It seems likely that figures for
“Hispanic Origin” are unaffected by the “More than One Race” category because the
question on the census questionnaire concerning Hispanic Origin is a completely separate
from the question on that questionnaire about how a person identifies by race – where
“more than one race” is an option. See United States Census Bureau, Decennial Census of
Population and Housing Questionnaires and Instructions, available at
https://perma.cc/N9AW-RUS3.
In any event, while these seem likely reasons for the differences in the figures in the
Dissent’s charts that it perceives as “discrepancies,” we do not have the benefit of what
may be a simple explanation as those who seem to doubt the stipulated figures never asked
the question when the parties were before us – or even afterwards – until now. What we
do know for sure is that what the Dissent presents as its own summaries of the Department
of Planning data do not present a complete and accurate breakdown of the Department’s
adjusted population numbers and provide no basis for contending that there are
“discrepancies” in Joint Exhibit F.
96
requirements by mapmakers using accurate data is inexplicable. And the Dissent does not
even venture an explanation. At any rate, the Dissent’s misinterpretation of the Department
of Planning data does not support voiding the adopted plan.
2. Alleged Lack of Transparency in Resolving the Discovery Dispute
The Dissent alleges that the Special Magistrate decided the discovery dispute and
the application of legislative privilege “out of public view.” Dissent at 28. That
characterization is unfair to both the Special Magistrate and the parties.
On February 17, 2022, the Special Magistrate conducted a remote to discuss
discovery and other matters. During that live-streamed conference, the State advised that
issues involving legislative privilege might arise during discovery. In a promptly-issued
scheduling order posted the next day on the Court’s website, the Special Magistrate
required the parties to advise him of any discovery disputes by March 8. The parties in
fact did so on March 3 by joint letter conveyed by email. The Special Magistrate who, like
the parties, was operating on an extremely tight deadline, asked the parties to submit
memoranda to him by email on the issue. The parties did so immediately and served each
other with their respective memoranda. Shortly after receiving the memoranda, the Special
Magistrate allowed the parties to make the same points orally in a virtual meeting on March
8. The Special Magistrate promptly ruled on the issue in a March 10 order that recited the
arguments of the parties and the reasoning of the Special Magistrate.87 That order was filed
87
Indeed, the Dissent cites portions of that order that explicitly quote arguments made
by Petitioners in the legal memoranda submitted to the Special Magistrate. Dissent at 24,
28. That order was publicly posted when it was issued, shortly after the discovery dispute
97
and posted on the Court’s website that same day. The Special Magistrate retained the
parties’ memoranda. Presumably by inadvertence, the memoranda were apparently were
not filed in MDEC by either the parties or the Special Magistrate.
In filings concerning the Petitioners’ exceptions in Miscellaneous No. 25, both
parties again briefed the issue in elaborate detail. Those filings have been publicly
available on MDEC system and on the Court’s website since they were filed.
We agree that it would have been better for the initial memoranda emailed to the
Special Magistrate to have been formally filed on MDEC as well. They have been retrieved
from the Special Magistrate’s files and, although duplicative of filings already in the
record, they will be added to the public record. And we agree that, although the virtual
meeting concerning the discovery dispute resembled a prehearing court conference in a
civil case that might not occur in open court, it ideally would have been held, in this case,
in a format that was simultaneously accessible by the public. However, contrary to the
characterization by the Dissent, this was not an effort to “shield” the issue or its resolution
from the public. The public was notified of the issue, the respective arguments of the
parties, and the resolution when the Special Magistrate posted his order less than a week
after the issue first arose.88
arose. There is simply no factual basis for the Dissent’s suggestion that either the Special
Magistrate or the parties concealed this issue from the public.
88
The Dissent also asserts that the Special Magistrate – and this Court – considered
the issue “without traditional briefing.” Dissent at 18 n.12. However, as reflected in the
Special Magistrate’s order, the parties thoroughly briefed the issue before him and did so
again in the exceptions and response to exceptions filed with the Court.
98
3. The Alleged Evidence Relied Upon by the Dissent
The Dissent states that it “analyse[s] the plan on the record before the Court.”
Dissent at 7 n.5. The Dissent does not address the adequacy of the testimony actually
presented at the hearing before the Special Magistrate, does not mention either the expert
witnesses or the Petitioners who testified, and only briefly refers to the testimony of a non-
petitioner delegate who appeared as a witness. Specifically, while alluding to “extreme
partisan gerrymandering,” the Dissent does not cite to any facts in the record that would
establish that the design of any of the challenged districts effected such a result.
Instead, the Dissent relies on many “facts” that do not appear in the record before
Special Magistrate, were not brought up by the Court or counsel at the oral argument in
this case, were not raised in the Petitioners’ exceptions, and accordingly were never subject
to cross-examination, rebuttal, or explanation. It further appears that a significant portion
of the Dissent is devoted to relitigating failed challenges to past redistricting plans, the facts
of which are not part of the record of this case. And the Dissent devotes considerable space
to recounting past challenges alleging racial gerrymandering when no such claims were
made by the Petitioners in this case.
The Dissent emphasizes that we have original jurisdiction of this matter. That is
true. But to say that we have original jurisdiction to review a plan does not mean that we
originate objections to the plan. It does not mean that we are a free-roaming fixer of any
ill we perceive. The framers of the State Constitution, like those of the federal Constitution,
created a government of separate branches and defined powers that, ultimately, means a
limited government. Our original jurisdiction in this case under Article III, §5, is triggered
99
by the filing of a petition, not by our own desire to redo redistricting. A petition contains
allegations, as those that resulted in this case did, and our original jurisdiction means that
we are the trial court charged with deciding the merits of the petition based on the evidence
presented in support of, and in rebuttal of, the petition in light of the governing law. In this
case, there were petitions containing specific allegations. The parties introduced evidence
for and against those allegations and ably tried the case. It is our job to decide that case
based on those allegations and that evidence. It is not to devise claims not made and refer
to evidence not introduced to reach a result that we prefer.
The Dissent’s discomfort with the redistricting process created by the Maryland
Constitution – which assigns line-drawing to the political branches and provides a limited
role for the Court – is understandable. However, this Court’s role is not to relitigate the
case on facts not raised by the parties; instead, it is to address the challenges that have been
presented under the law and precedents that govern redistricting in this State.
V
Miscellaneous No. 26
The Petition
In Miscellaneous No. 26, Petitioners alleged that the adopted plan’s use of single-
member delegate districts in some places and multi-member delegate districts in others
violated their rights under various provisions of the Maryland and federal constitutions,
both facially and as applied. Specifically, the Petition alleged that “[a]llowing
multimember districts to exist and be apportioned for the Maryland House of Delegates
violates the ‘one person, one vote’ principle, both as a logical prima facie violation and as
100
a violation as applied in the Plan.” Further, the Petition alleged that “multimember districts
are employed exclusively under the Plan so as to allow for consolidation of partisan
political power and advantage to the majority party,” and that the “failure of the Plan to
have uniformly sized single member House districts” violates both constitutions.89
As relief, the Petitioners proposed that the Court order the General Assembly to
adopt a plan that “specifically incorporates uniform single member House of Delegates
districts” and, if the General Assembly did not do so, that the Court order that a new plan
be prepared by “a special magistrate, Court-ordered expert, or in any other method or
manner deemed appropriate by this Court.”90
The Hearing before the Special Magistrate
The Petitioners did not introduce live testimony at the hearing before the Special
Magistrate. Instead, their counsel introduced an affidavit of Patricia Shoemaker, one of
the Petitioners.91 In that affidavit, she states that her residence in Hampstead had
previously been in a district entirely located in Carroll County and that, in that district, she
89
The Petitioners in Miscellaneous No. 26 also adopted by reference “the averments
and objections” to the adopted plan and the “legal and factual bases” for those objections
made by the petition in Miscellaneous No. 25. They offered no further elaboration or
additional evidence with respect to those claims and, accordingly, there is no need to repeat
our analysis of those claims in this section of this opinion.
90
According to the allegations of the Petition, Delegates Brenda Thiam and Wayne
Hartman, the two legislator petitioners in Miscellaneous No. 26, would each represent
single-member districts under the adopted plan. Patricia Shoemaker, a registered voter
who is a petitioner in Miscellaneous No. 26, would reside and vote in a single-member
delegate district under the adopted plan.
91
Otherwise, these Petitioners simply reiterated that they were adopting the evidence
introduced by the Miscellaneous No. 25 petitioners.
101
had the opportunity to vote for one State senator and three delegates. As a result of the
adopted plan, her residence will be in a subdistrict of a legislative district that crosses the
county line into Baltimore County and thus she will have the opportunity to vote for a State
senator, but only one delegate.
Referring to the Shoemaker affidavit, Petitioners’ counsel noted that some Carroll
County residents will now vote in District 42C for one delegate, while other Carroll County
residents in Westminster will vote for three at-large delegates. He asserted that the State
had not articulated reasons for the distinction. At the hearing, counsel stated that the
Petitioners were not contesting the constitutionality of Article III, §3 of the Maryland
Constitution (which specifically authorizes the use of multi-member delegate districts) –
thereby apparently withdrawing the facial constitutional challenge alleged in the petition –
but maintained that the use of multi-member districts in the adopted plan violated other
constitutional provisions – thereby maintaining the “as applied” constitutional challenge to
the adopted plan.
In response, the State introduced the testimony of its expert, Professor Lichtman,
who observed that the Petitioners had not come forward with any facts to support their
allegation that the plan used a mixture of single-member and multi-member districts for
partisan advantage. He testified that he had conducted his own analysis as to whether the
plan would confer an advantage on Democrats and concluded that, given the percentage of
Democrats in Maryland, the plan would result in their under-performance when compared
with nine other states with multi-member legislative districts.
102
Recommendation of the Special Magistrate
As indicated above, following the hearing, the Special Magistrate submitted a report
to the Court in which he recommended that the Petition in Miscellaneous No. 26 be denied.
He noted that the Supreme Court has held that multi-member legislative districts are not
per se unconstitutional, even when used in combination with single-member districts. See
White v. Regester, 412 U.S. 755, 765 (1973). He also noted that allowing a mix of multi-
member and single-member districts “can serve a useful purpose of giving minority groups
a better opportunity to elect one of their own.” But he suggested that the issue of disparate
voting power between a voter in a three-member district and a voter in a one-member
district was a “fair one” for consideration whether the part of Article III, §3 of the Maryland
Constitution authorizing the mixture of single-member and multi-member districts should
be amended or repealed.
Petitioners’ Exceptions to Recommendation of the Special Magistrate
In their exceptions to the Special Magistrate’s recommendation that the Court deny
the Petition, Petitioners again disclaimed any challenge to the facial constitutionality of
Article III, §3. Instead, they stated, they were arguing that §3 was unconstitutional as
applied in this plan.92 Further, they stated that they were not asking the Court to order the
92
Petitioners relied on a North Carolina case that held that a provision of the North
Carolina constitution that appeared to implicitly recognize the use of multi-member state
legislative districts did not “authorize use of both single-member and multi-member
districts in a manner violative of the fundamental right of each North Carolinian to
substantially equal voting power” under another provision of that state’s constitution.
Stephenson v. Bartlett, 562 S.E.2d 377, 394 (2002). As best we can tell from that decision,
there was no provision of the North Carolina constitution analogous to Article III, §3, that
explicitly authorized the use of single-member and multi-member districts.
103
adoption of a map composed entirely of single-member districts, but instead had
alternatively asked that the Court order the preparation of a plan “in any other manner,”
which, they stated, could include the multi-member districts when justified by a compelling
state interest.
Analysis
Multi-member legislative districts are expressly permitted by Article III, §3. They
do not violate equal protection principles per se, but they may do so as applied, as when
drawn “invidiously to minimize or cancel the voting potential of racial or ethnic
minorities.” See 1982 Districting, 299 Md. at 673-74 (citations omitted) (referring to the
Fourteenth Amendment); see also 1992 Districting, 331 Md. at 606 (discussing multi-
member districts in the context of the Voting Rights Act). Petitioners bear the burden of
establishing such a claim. 2012 Districting, 436 Md. at 143-44. Petitioners made no such
claim and introduced no evidence in support of such a claim. In the absence of such a
claim supported by sufficient evidence, the Maryland Constitution expressly permits a mix
of single-member and multi-member districts.
Likewise, the use of single-member districts in some places and multi-member
districts in others does not on its face violate either the Maryland Constitution (which
expressly permits that use) or the federal Constitution. To the contrary, single-member
districts are sometimes created to ensure compliance with the Voting Rights Act. See 1992
Districting, 331 Md. at 608. At other times, as Mr. Aro testified before the General
Assembly, subdistricts are sometimes used to preserve representation for a locality when
population shifts require a district to cross subdivision boundaries. In those cases, a
104
subdistrict ensures that the people in the crossed-over area “would not be overwhelmed by
an [] at-large district.” In any event, the Supreme Court has observed, with regard to
bicameral legislatures, that “[o]ne body could be composed of single-member districts
while the other could have at least some multimember districts.” Reynolds v. Sims, 377
U.S. 533, 577 (1964). The Supreme Court further noted that “[s]ingle-member districts
may be the rule in one State, while another State might desire to achieve some flexibility
by creating multimember or floterial districts.” Id. at 579. In 2002, this Court created and
adopted a plan that used a mix of single-member and multi-member districts. See 2002
Court Redistricting Plan, 369 Md. at 601-49 (order specifying Court plan).
In short, the Maryland Constitution permits mapmakers to use a mix of single- and
multi-member districts, and it does not condition the practice on the determination of a
compelling state interest. While the Governor’s Executive Order directed his appointed
commission to use single-member districts to the extent possible,93 and other states’
constitutions might contain such a requirement, adding such a requirement to the Maryland
Constitution lies beyond the role of this Court.
With regard to the Petitioners’ argument that Article III, §3 was unconstitutional as
applied in the plan, they introduced no evidence to support their allegation of a systematic
use of single-member and multi-member districts to achieve an unfair partisan advantage.
93
COMAR 01.01.2021.02C(1)(d)(ii). Notably, the Governor’s commission
determined that it was unable to reach a consensus on the universal use of single-member
subdistricts in its plan. It ultimately reached a compromise that included a mix of three-
member and single-member delegate districts. See Report of the Special Magistrate,
Appendix II (Final Report of the Maryland Citizens Redistricting Commission at pp. 8-9).
105
If, by incorporating all of the evidence presented in Miscellaneous No. 25 into their case,
they intended to rely on any of that evidence to support that claim, they did not identify it.
Even without the testimony of the State’s expert to the effect that the delegate subdistrict
lines did not confer a partisan advantage, Petitioners’ conclusory allegation that those lines
constituted an impermissible “gerrymander” was speculative at best.
Summary
The Petition and evidence in Miscellaneous No. 26 did not establish by compelling
evidence that the plan adopted by the General Assembly violated either the Maryland
Constitution or the federal Constitution.
VI
Miscellaneous No. 27
The Petition
Petitioner Seth E. Wilson filed a pro se petition challenging the adopted plan only
as to subdistrict 2A, a two-member delegate district that lies largely in Washington County
and crosses into Frederick County.94 In his petition, he also protested the adjustment of
the population attributed to Washington County for purposes of redistricting pursuant to
Maryland Code, State Government Article, §2-2A-01. That statute was enacted in 2010
as part of the No Representation Without Population Act95 and provides for the assignment
of incarcerated individuals to their actual domiciles for purposes of redistricting. As a
94
His petition also appears to complain about the 2012 version of that district and
expresses a preference for the districting lines drawn in 2002.
95
Chapters 66, 67, Laws of Maryland 2010. See footnote 12 above.
106
result, prisoners who are incarcerated in Washington County but hail from other
jurisdictions or from out of state and who would have been attributed to Washington
County under prior law no longer were counted in that manner for purposes of
redistricting.
Mr. Wilson contended that the Maryland Constitution does not permit the State to
adjust a county’s population under the Act when the adjustment would require the drawing
of a district across county lines. He also asserted that Article III, §4 of the Maryland
Constitution and, by extension, the Fourteenth Amendment to the United States
Constitution do not permit the State to make that adjustment when it would result in the
drawing of multi-member subdistricts.
For relief, Mr. Wilson asked that the Court order that three single-member House
subdistricts be created within Senate District 2, with two of the subdistricts entirely within
Washington County. He asked that the Court declare the No Representation Without
Population Act of 2010 “null and void” and that the incarcerated individuals excluded
from the count for Washington County be added back into the count for purposes of
redistricting.
The Hearing Before the Special Magistrate
Mr. Wilson did not submit any testimony or other evidence at the hearing before
the Special Magistrate. However, he did attend the hearing and present argument.
Recommendation of the Special Magistrate
As indicated above, the Special Magistrate recommended in his report that the
Petition be denied. The Special Magistrate noted that Washington County had sufficient
107
population to have a Senate district and associated House districts entirely within its
borders. However, he also noted that the combined population of Garrett and Allegany
counties was significantly less than what was necessary to create an “ideal” Senate district
– i.e., one that would that satisfy the constitutional criterion of “substantially equal
population” in comparison to other Senate districts. He also noted that those drawing the
districting maps had little choice but to start at the State’s external boundaries and work
toward the interior – in the case of Western Maryland, moving from west to east – to avoid
painting themselves into a corner where they could not comply with the constitutional
criteria. For that reason also, District 2 crossed into Frederick County.96
The Special Magistrate noted that the Supreme Court had approved the use of both
single-member and multi-member districts in state legislative districting and that this
Court had used such a mix when it created its own plan in 2002. Finally, he cited the
96
From the 2020 census, the Special Magistrate concluded that the combined
population of Garrett County and Allegany County was well short of the population of the
“ideal” Senate district (131,391), and that the deficit would need to be made up by
extending the boundary of District 1, which encompassed those two westernmost counties,
into Washington County, the nearest adjoining county to the east, to add the necessary
population. That, in turn, resulted in extending the boundary of District 2 from Washington
County into Frederick County, in order to pick up the necessary population for District 2.
In the General Assembly, Ms. Davis testified at the joint committee hearing on January 18,
2022, that population loss in the westernmost counties required the extension of District 2
across the county line. She stated that subdistrict 2A includes the City of Thurmont, a
municipality, and goes to, but not across, the Carroll County line.
Hypothetically, we suppose, a challenger could take issue with the mapmakers’
practice of beginning in the west of the State instead of somewhere else, but no Petitioner
has questioned that practice. Quite likely, given the barrier posed by the Chesapeake Bay
and the heavy concentration of population in the counties on its western shore, the result
would be the same: a cluster of districts in those counties, and subdivision crossings, both
there and to the west.
108
authorization in Article III, §3 of the Maryland Constitution. The Special Magistrate
concluded that “[t]here is no legal impediment to including multi-member districts, even
when the district or part of it includes residents of another county, at least when that
becomes necessary to assure population equality.”
Finally, the Special Magistrate noted that a claim similar to the one made by Mr.
Wilson concerning the No Population Without Representation Act had been rejected by
the Supreme Court. Fletcher v. Lamone, 831 F. Supp. 2d 887, 897 (D. Md. 2011) (three-
judge court), aff’d, 567 U.S. 930 (2012).
Petitioner’s Exception to the Recommendation of the Special Magistrate
In his exception to the Special Magistrate’s recommendation, Mr. Wilson stated that
the Special Magistrate had “fundamentally misstated, misconstrued, or misunderstood” his
claims. He contended that the adopted plan failed to give “due regard” to the boundaries
of political subdivisions in creating a two-member district that crossed from Washington
County into Frederick County instead of creating three single-member subdistricts, with
two of those subdistricts entirely within Washington County. He reiterated his contention
that the statute that redistributes prison population in accordance with domicile for
purposes of redistricting violates Article III, §4 when applied in districts that cross county
lines.
Analysis
Everyone appears to agree that it was necessary for legislative District 2 to cross
from Washington County into Frederick County as a result of the declining population in
Western Maryland. It is evident that House subdistrict 2B was drawn to coincide, more or
109
less, with the boundaries of Hagerstown, thereby honoring the prescription of “due regard”
for political subdivision boundaries. Hagerstown does not extend into Frederick County,
so the crossing would not occur in that subdistrict. Instead, it occurs in the two-member
subdistrict 2A.
Mr. Wilson’s preference for three single-member districts instead of one single-
member district and one two-member district might well be our preference as well if the
task of drawing the districts were assigned to this Court. However, the Constitution in
Article III, §3 clearly authorizes the political branches to adopt the latter configuration.97
Mr. Wilson has not provided any compelling evidence that any of the federal or State
constitutional criteria were violated by doing so.
With regard to the No Representation Without Population Act, nothing in the text
of that Act suspends its application when the adjustment of the census figures to reflect
inmates’ actual domiciles results in the drawing of a legislative district that crosses county
lines. Nor do the State and federal constitutions so require. As the federal district court
has explained in reference to this statute, “a State may choose to adjust the census data, so
long as those adjustments are thoroughly documented and applied in a nonarbitrary fashion
and they otherwise do not violate the Constitution.” Fletcher, 831 F. Supp. 2d at 894-95,
(discussing Karcher v. Daggett, 462 U.S. 725, 732 n.4 (1983)). The General Assembly’s
decision to exclude from the population count inmates currently incarcerated in a
jurisdiction where they were never domiciled and were present only against their will is
97
See the discussion of Article III, §3 in Part V of this opinion.
110
hardly unreasonable. Mr. Wilson has neither alleged nor proved that the State applied the
statute to Washington County’s population count in an arbitrary manner.98
Summary
The Petition and evidence in Miscellaneous No. 27 did not establish compelling
evidence that the configuration of subdistrict 2A violated either the Maryland Constitution
or the federal Constitution. The constitutional provisions did not require that the plan
include three one-member delegate subdistricts in District 2 simply because the district
crossed a county line.
VII
Conclusion
The Court’s well-established case law on challenges to legislative redistricting sets
a high bar for the challenger even when the schedule is not as compressed as it was on this
occasion. The constitutional assignment of redistricting to the political branches and the
presumption of the validity that we must apply require it to be so. The Petitioners in these
cases did not clear that bar. Yet it must be acknowledged that some of the allegations in
the Petitions raise meaningful questions about the basis for the location of boundaries of
several districts and of the appropriate use of subdistricts for the election of members of
98
Chief Judge Getty’s dissenting opinion would grant the Petition in Miscellaneous
No. 27 based on the Dissent’s “question … whether the Democratic Performance index is
at play” in the configuration of District 2. Dissent at 107. However, the Petition did not
allege any specific partisan effect of the configuration of the subdistricts in District 2 and
the voter registration data in the record reveals that Republican registration exceeds
Democratic registration in both subdistricts by substantial margins. The Dissent’s
speculation provides no basis for invalidating the adopted plan as a whole or subdistrict 2A
in particular.
111
the House of Delegates. Clearer expression of the basis for the location of the boundaries
of districts would have promoted not only this Court’s confidence that it has decided the
case correctly on an adequate record, but also the public’s trust in its government.
Nonetheless, the Petitioners’ evidence fell short of the proof needed to establish the
unconstitutionality of a redistricting plan.
For the reasons set forth in this opinion, we conclude that:
(1) the Petitioners in Miscellaneous No. 25 did not present compelling evidence that
the adopted plan subordinated the requirements of Article III, §4 to partisan
gerrymandering and other political concerns, as alleged in the Petition in that case.
(2) the Petitioners in Miscellaneous No. 26 did not present compelling evidence that
the use of a mix of multi-member and single-member districts in the adopted plan violated
Article III, §4, or other provisions of the Maryland and federal constitutions.
(3) the Petitioner in Miscellaneous No. 27 did not present compelling evidence that
the adjustment of population numbers required by statute and the use of adjusted numbers
in the designation of subdistricts in District 2 violated Article III, §4 of the Maryland
Constitution and did not establish that those subdistricts violated the Fourteenth
Amendment to the United States Constitution.
112
Argued: April 13, 2022 IN THE COURT OF APPEALS
OF MARYLAND
Misc. Nos. 21, 24, 25, 26, 27
September Term, 2021
IN THE MATTER OF 2022
LEGISLATIVE DISTRICTING
OF THE STATE
*Getty, C.J.
Watts,
Hotten,
Booth,
Biran,
Gould,
McDonald, Robert N.
(Senior Judge, Specially Assigned)
JJ.
Dissenting Opinion by Gould, J., which
Getty, C.J. and Biran, J. join
Filed: August 31, 2022
*Getty, C.J., now a Senior Judge, participated in
the hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to Md. Const., Art. IV, § 3A, he also
participated in the decision and adoption of this
opinion.
I respectfully dissent. Article III, Section 5 of the Maryland Constitution provides,
in part:
Upon petition of any registered voter, the Court of Appeals shall have
original jurisdiction to review the legislative districting of the State and may
grant appropriate relief, if it finds that the districting of the State is not
consistent with requirements of either the Constitution of the United States
of America, or the Constitution of Maryland.
Given the political nature of the legislative map-drawing function, this Court has
recognized that our constitutional mandate does not allow us to substitute our policy
judgments for that of the Executive and Legislative branches. Rather, our role “is limited
to assessing whether the principles underlying the compactness and other constitutional
requirements have been fairly considered and applied in view of all relevant
considerations.” Matter of Legislative Districting of State, 299 Md. 658, 688 (1984). This
Court cannot, however, determine whether the “constitutional requirements have been
fairly considered and applied” unless we know which constitutional requirements were
considered and applied.
Whether one agrees with his analysis or not, Judge Getty has raised serious,
colorable issues with respect to the legislative redistricting plan adopted by the General
Assembly. So too, in my view, did the petitioners in petition numbers 25 and 27. That
being the case, for the reasons expressed below, I believe that the Majority misallocated
the burdens of production and persuasion, and misapplied the legislative privilege. In my
view, instead of the order issued on April 13, 2022, this Court should have kept the hearing
open, ordered the State to choose between: (i) answering the four questions as to which the
State asserted legislative privilege or (ii) suffering the consequence of adverse inferences,
and reconvened the hearing promptly to consider the petitioners’ exceptions in light of the
State’s response or lack thereof to such order. Thus, when this Court voted on April 13,
2022, although I found merit in much of Judge Getty’s analysis, the deference this Court
owed to the political and policy choices of the General Assembly left me reluctant on April
13, 2022 to disregard the General Assembly’s plan without first giving the State another
opportunity to provide the information necessary for us to conduct a proper review.
1
The Maryland Rules do not include any rules that govern petitions filed under
Article III, section 5 of the Maryland Constitution. Chief Judge Bell, however, provided
this analytical framework for reviewing such petitions:
When the plan adopted by the Governor or Legislature is challenged, it
becomes our lot to review it for constitutionality. We first look at the plan
on its face, in light of the challenges, to see whether, and to what extent, the
federal and state legal requirements have been met. When, from the petitions
and the answers alone, we perceive deviations that do not appear to be
permissible, but for which there may be some explanation that could serve to
justify them, we have appointed a special master, thus affording the State and
the petitioners the opportunity to present evidence and argument to supply
that explanation. Following those proceedings, if we conclude that the
deviations are within a permissible range or for a permissible purpose, we
have approved the plan. On the other hand, if we are satisfied that, despite
the proffered explanation, the deviations are constitutionally impermissible,
we have but one choice: declare the plan unconstitutional and void. The
former is exemplified by the 1982 and, as held by the majority, 1992 plans.
As indicated, we declared the 1972 Plan unconstitutional, albeit for
procedural, rather than substantive, default.
In re Legislative Districting of State, 370 Md. 312, 322-23 (2002). Since Chief Judge
Bell’s articulation of the allocation of the burdens of production and persuasion, this Court
has not consistently applied it. But neither has this Court expressly overruled it. In my
2
view, Chief Judge Bell had it exactly right—when a prima facie case is alleged in the
petition that the plan suffers from one or more constitutional infirmities, the proponent of
the map should be called upon to furnish evidence to enable this Court to fulfill its
constitutional mandate to review the plan.
That threshold was met with respect to petition numbers 25 and 27, notwithstanding
that some of the facts alleged therein were based on “information and belief.”1 Thus, the
burden should have shifted to the State to produce evidence and provide an explanation for
the perceived constitutional infirmities.2 Instead, the Majority allowed the State to hide
behind an unsubstantiated assertion of legislative privilege. To establish clear guidance
for the next redistricting cycle, this Court should exercise its rulemaking authority to codify
the allocation of burdens of production and persuasion articulated by Chief Judge Bell
twenty years ago.
1
Our initial order in Misc. No. 21 set forth the pleading requirements for such
petitions: the petitions were required to state the “objection to the plan[,]” the “particular
part or parts of the plan” alleged to be in violation of the law, “the factual and legal basis
for such claims[,]” and the relief requested. Our order did not require a petitioner to present
the evidence supporting the alleged factual basis; nor did it preclude allegations made on
information and belief.
2
The allocation of burdens for which I advocate here is analogous to the burdens
imposed in confidential relationships. “When a confidential relationship is established, the
burden is then upon the trusted party to show that the challenged transaction was freely,
fairly made and that no unfair or unreasonable advantage was taken of the confiding party
in the confidential relationship.” Desser v. Woods, 266 Md. 696, 708-09 (1972) (citations
omitted). Given the enormous trust reposed by Maryland voters in their elected
representatives, and the constitutional obligation imposed on this Court, the approach
adopted in cases involving confidential relationships is appropriate here.
3
2
The discovery dispute was limited to the State’s assertion of legislative privilege
over petitioners’ requests for four pieces of information. The petitioners asked for:
(1) who was responsible for the actual drawing or construction of the
specific legislative districts Petitioners [have] challenged;
(2) if a computer program was used, what criteria was the program
instructed to use to draw the legislative districts Petitioners [have]
challenged;
(3) who provided instructions to the actual map drawer(s) regarding
what factors or other criteria were to be used in drawing the legislative
districts Petitioners [have] challenged; and
(4) what specific instructions were given to the map drawer(s)
regarding the various legislative districts Petitioners [have] challenged.
From my review of the record, it does not appear that the petitioners demanded the
answers to these four questions in a particular format. There was, as far as I can tell, no
request to take depositions or subpoenas for any legislative files. The answers to these four
questions could have been easily ascertained by the State’s counsel, conveyed to petitioners
in a letter, and embodied in the joint stipulation the parties submitted. No testimony was
requested or required. The provision of such information would not have exposed any
member (or staff personnel) of the legislative branch to civil or criminal liability or to
provide testimony. Thus, it seems rather obvious that the State could have furnished the
requested information without compromising the values that animate the legislative
privilege.3
3
One of the cases discussed by the Majority, Floyd v. Baltimore City Council, 241
Md. App. 199 (2019), involved a claim that a comprehensive rezoning plan violated the
Open Meetings Act, Md. Code Ann. (2014, 2018 Supp.), General Provisions §§ 3-301, et
seq. The defendant city moved to quash subpoenas to two Council members based on
legislative privilege, and sought to curtail the scope of testimony of a member of the
4
3
The separation of powers doctrine enshrined in Article 8 of the Declaration of Rights
is, and should be, zealously guarded, and as pointed out by the Majority, the legislative
privilege serves a key function in so doing. But that is not the only value at stake here.
This Court also has a constitutional obligation to review the legislative redistricting plan
when a petition is filed under Article III, section 5.
A proper balance of the competing interests can be struck by taking a page from the
civil litigation playbook when the Fifth Amendment right against self-incrimination is
invoked. A civil litigant is permitted to assert the Fifth Amendment privilege to justify a
refusal to provide discovery, but not without consequence. Kramer v. Levitt, 79 Md. App.
575, 587 (1989). One consequence is that the jury will be entitled to draw adverse
inferences. Id.In my view, the exercise by this Court of similar discretion would have been
appropriate here. If the State wanted to hide behind legislative privilege to avoid
disclosing, for example, the “specific instructions [that] were given to the map drawer(s)
regarding the various legislative districts Petitioners [have] challenged[,]” then it would
Council’s staff. Similar to the petitioners here, the plaintiff in Floyd argued that the
assertion of legislative privilege effectively gut the “force and purpose” of the Open
Meetings Act. Id. at 213. The Court of Special Appeals, however, was unconvinced
because “questions specifically related to compliance with the Act would not be protected
by legislative privilege and appellant was able to pursue these questions with [the staff
member].” Id. at 214. The same reasoning applies here with the narrowly drawn questions
over the which the claim of legislative privilege was fought.
5
have been reasonable for this Court to infer that such instructions were inconsistent with
the requirements of the United States Constitution and the Maryland Constitution.
Conclusion
For the reasons explained above, on April 13, 2022, I would have provided the State
the opportunity to provide, on an expedited basis, the limited information responsive to the
four outstanding discovery requests. If the State had provided the information, I would
have favored reconvening the hearing to entertain the exceptions in light of the new
information. If the State had declined to provide the information, then I would have
favored drawing adverse inferences against the State and ruling accordingly.
Chief Judge Getty and Judge Biran have authorized me to represent that they join
in this dissent.
6
Argued: April 13, 2022 IN THE COURT OF APPEALS
OF MARYLAND
Misc. Nos. 21, 24, 25, 26, 27
September Term, 2021
IN THE MATTER OF 2022
LEGISLATIVE DISTRICTING
OF THE STATE
*Getty, C.J.
Watts,
Hotten,
Booth,
Biran,
Gould,
McDonald, Robert N.
(Senior Judge, Specially Assigned)
JJ.
Dissenting Opinion by Getty, C.J.,
which Biran and Gould, JJ., join.
Filed: August 31, 2022
*Getty, C.J., now a Senior Judge, participated in
the hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to Md. Const., Art. IV, § 3A, he also
participated in the decision and adoption of this
opinion.
“A fairly apportioned legislature lies at the very
heart of representative democracy.”
Chief Judge Robert M. Bell
Court of Appeals of Maryland
In re Legislative Districting of State, 370 Md.
312, 319 (2002).
“The partisan gerrymanders in these cases
[North Carolina and Maryland] deprived citizens
of the most fundamental of their constitutional
rights: the rights to participate equally in the
political process, to join with others to advance
political beliefs, and to choose their political
representatives. In so doing, the partisan
gerrymanders here debased and dishonored our
democracy, turning upside-down the core
American idea that all governmental power
derives from the people. These gerrymanders
enabled politicians to entrench themselves in
office as against voters’ preferences. They
promoted partisanship above respect for the
popular will. They encouraged a politics of
polarization and dysfunction. If left unchecked,
gerrymanders like the ones here may irreparably
damage our system of government.
* * *
In giving such gerrymanders a pass from judicial
review, the majority goes tragically wrong.”
Justice Elena Kagan
Supreme Court of the United States
Rucho v. Common Cause, 139 S. Ct. 2484, 2509
(2019) (Kagan, J., dissenting).
The Constitution of Maryland grants this Court “original jurisdiction to review the
legislative districting of the State . . . .” Md. Const. art. III, § 5.1 It is an awesome
responsibility. It is rare for this Court to be granted original jurisdiction. The fact that the
people of this State, through the ratification of a constitutional amendment in 1972, assign
the entire review of decennial districting to this Court signifies the importance to the people
that these districts be fair, devoid of overt partisan gerrymandering, and created with full
public transparency. In these cases, the Court has failed to uphold these profound
responsibilities. For reasons I shall explain, I respectfully dissent.
The actions of political leaders to redraw legislative districts in a design to benefit
their incumbency and the electoral performance of their political party has deep roots in
American history. In 1812, Massachusetts Governor Elbridge Gerry drew a noncompact
district to give his Democratic-Republican party an undue advantage. The salamander
shape of the Gerry district was satirized in a political cartoon that became the origin of the
term “gerrymander.”
The rallying cry for the proponents of the 2022 legislative districting plan was that
“it ensures continuity of representation by keeping the majority of Marylanders in their
current district.”2 That phrase sounds altruistic, as if the highest priority of the mapmakers
1
All references to “Constitution” are to the Constitution of Maryland, unless otherwise
indicated. All references to “Article III” or “Art. III” are to Article III of the Constitution
of Maryland, unless otherwise indicated.
2
See Senate Proceedings No. 6, Floor Debate on Senate Joint Resolution 2, Remarks by
Senator Nancy King, Chair of the Senate Reapportionment and Redistricting Committee,
at 8:48, https://mgaleg.maryland.gov/mgawebsite/FloorActions/Media/senate-6-, archived
at https://perma.cc/RZ5V-RZ6H.
2
was a concern that the citizens of Maryland might be confused if their legislative district
lines were changed. But that altruism is a pretext for the actual priority in this plan, which
is incumbent protection on a scale of extreme partisan gerrymandering.
What about where district lines are changed in a manner that is unfavorable to an
incumbent? The policy of protecting incumbents due to their “community of interest” is
not uniformly applied. It is important to note that not every incumbent is protected, but
instead, it is only those favored by the current legislative leadership.
To prevent overt partisan gerrymanders in Maryland, the Constitution establishes a
rubric in Article III, § 4 that has been the subject of this Court’s deliberations once every
ten years over the last fifty years. These constitutional requirements are simply stated:
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.
Art. III, § 4.
As we are engaged in our sixth cycle of districting jurisprudence, we review with
original jurisdiction the “adopted plan” enacted by the Maryland General Assembly
through Senate Joint Resolution 2 following the 2020 decennial census. In this cycle, the
petitions filed by registered voters under Article III, § 5 primarily challenge the
compactness prong of § 4. Upon the assertion of legislative privilege by the General
Assembly over the process upon which the adopted plan was created, the petitions also
challenge the lack of transparency and assert the public’s right to know the factors upon
which the General Assembly determined the district lines in the adopted plan.
3
Democracy—literally, “rule by the people”3—is undermined by the lack of
compactness in a legislative districting plan: noncompactness leads to the
underrepresentation of minorities and ample opportunities for partisan gerrymandering. A
historical review of the State’s districting demonstrates just that. Neither the Attorney
General, who defends the 2022 plan as passed by the General Assembly, nor the Majority,
whose decision today approves that plan, can be confident that it conforms to the
requirements of Article III, § 4.
As I will describe, the laissez-faire standard on compactness as articulated by the
Majority is, in reality, no standard at all. The Petitioners in Misc. No. 25 (“Petitioners”)4
have established by compelling evidence that certain districts in the adopted plan are not
compact. The Attorney General, hiding behind the legislature’s assertion of legislative
privilege, offers little to justify the noncompact districts except to assert that, under this
Court’s prior districting jurisprudence, where district lines are drawn does not matter.
Instead, the Attorney General repeatedly reiterates that if districts in the current plan are
consistent with shapes previously “blessed” by this Court in prior districting cycles, the
compactness inquiry is over. Following this rationale, the Majority skirts past this Court’s
fundamental responsibility and fails to reassert the firm standard on compactness
established in the 1982 Districting. 299 Md. 658. Such a firm standard is necessary to
3
See Democracy, Encyclopedia Britannica, https://www.britannica.com/topic/democracy,
archived at, https://perma.cc/HKY4-D4JH.
4
My discussion pertains principally to the challenges levied in Misc. No. 25. Accordingly,
I shall refer to “Petitioners” with the understanding that, unless otherwise indicated, I mean
only the Petitioners in that case, and not those in Misc. Nos. 24, 26, and 27.
4
protect the public. Thus, the Majority misses an opportunity for this Court to refine a
compactness standard that will apply during the current era of high-powered computer
analytics and voter microtargeting used in the mapping of Maryland’s legislative districts.
Under our original jurisdiction, this Court also has the obligation to ensure that the
public is fully informed during the process of redrawing legislative districts and that all
elements of that process, whether by the Governor, the General Assembly or even by this
Court, are transparent and open to public access. The closest analogy to this principle of
disclosure arises from our public information act cases, where we have acknowledged a
“legislative intent that citizens of the State of Maryland be accorded wide-ranging access
to public information concerning the operation of their government.” Kirwan v. The
Diamondback, 352 Md. 74, 81 (1998) (quoting The A.S. Abell Publ’g Co. v. Mezzanote,
297 Md. 26, 32 (1983)).
For the first time in our districting cases, the General Assembly has asserted
legislative privilege over the process used in determining the boundaries for the state
legislative districts. The only reasonable explanation for the assertion of this privilege is
that the General Assembly engaged in the identical process used for the 2012 Districting.
As we know from the federal case of Benisek v. Lamone, 138 S. Ct. 1942 (2018), the 2012
state legislative districts were derived from a “Democratic Performance Index” database
for voter microtargeting used in the computer mapping for districting software Maptitude.
See Benisek v. Lamone, 266 F. Supp. 3d 799, 809 (D. Md. 2017), aff'd, 138 S. Ct. 1942(2018).
5
The Majority accedes to the assertion of legislative privilege for staff actions that
occurred totally outside of “their legislative conduct [] or events that occurred in a
legislative session.” Amended Order of Special Magistrate Regarding Discovery, at *9
(March 11, 2022). As I explain, infra, in the section on transparency, I fundamentally
disagree with the Majority’s opinion because it condones the use of legislative privilege to
evade a discovery request for data, for which there is a limited exception, as opposed to the
deliberative process, which is privileged. Further, for an issue so critical to protecting the
rights of Maryland voters, the General Assembly should embrace transparency in the
districting process instead of asserting privilege to conduct a secret process that shields
from the public the actual data and manipulations of district lines that resulted in the
adopted plan.
The Court’s eschewal of rigorous review is particularly troubling in light of the fact
that, in Rucho v. Common Cause, the Supreme Court deferred the “political question” of
partisan gerrymandering to the states. 139 S. Ct. 2484, 2509 (2019). State courts of last
resort are the gatekeepers for the protection of the public’s voting rights. Under Rucho,
the magnitude of our responsibility under the Constitution’s original jurisdiction is
heightened. It is our duty to ensure that, under Maryland’s form of democracy as guided
by our Constitution, it is the voters who select the members of the General Assembly—not
the Senators and Delegates ensuring incumbency by selecting their own microtargeted
voters.
The Majority likewise fails to adhere to our firm standards for compactness by
deferring to a nonstandard of “flexibility” to the General Assembly through an overbroad
6
deference instead of applying the constitutional principles of Article III, § 4 as articulated
by this Court as early as 1982.
In dissent, I can see no path that justifies the adopted plan and agree with U.S.
Supreme Court Justice Elena Kagan that partisan gerrymandering “deprive[s] citizens of
the most fundamental of their constitutional rights: the rights to participate equally in the
political process, to join with others to advance political beliefs, and to choose their
political representatives.” Rucho, 139 S. Ct. at 2509 (Kagan, J., dissenting); see also Ariz.
State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 824 (2015) (internal
citation omitted) (noting that the districting process provides an opportunity to “restore the
core principle of republican government, namely, that voters should choose their
representatives, not the other way around”).
I would sustain certain of the Misc. No. 25 Petitioners’ exceptions and hold that
Petitioners produced compelling evidence demonstrating that numerous challenged
districts in the adopted plan are violative of Article III, § 4’s requirement that districts be
compact in form and give due regard to the boundaries of political subdivisions.5
5
I join in Judge Gould’s well-written dissent. I, too, would have held open the Special
Magistrate’s evidentiary hearing. See Gould, J., Dissent at 1–2. However, given the April
13, 2022 Order, I analyze the plan based on the record before the Court.
7
INTRODUCTION
Redistricting and reapportionment in the General Assembly is a historically
contentious process.
A. Maryland’s History of Apportionment
Until the Supreme Court of the United States issued its landmark decision in Baker
v. Carr, 369 U.S. 186 (1962), the legislative districts in Maryland were defined by the
boundaries of each county. Historically, every county had one Senator and at least one
Delegate. Additional Delegates were apportioned to counties based upon the population
of the county. Baltimore City, which contained a large percentage of Maryland’s
population, was granted additional Senators and Delegates.
For example, in the period just before the reform necessary under the one person,
one vote standard, apportionment in the General Assembly was controlled by the
Constitutional Amendment of 1956. See 1956 Md. Laws, ch. 99, ratified November 6,
1956. Under that plan, Baltimore City was divided into six legislative districts, each
apportioned one Senator and six Delegates. For the remainder of the state, the county
boundaries comprised the legislative districts and each county had one Senator. In counties
with multiple Delegates, the Delegates ran at-large in multi-member districts within the
county.
The 1956 Amendment provided for the following apportionment of Delegates: Two
Delegates per County—Calvert, Caroline, Charles, Howard, Kent, Queen Anne’s, and St.
Mary’s Counties; Three Delegates per County—Cecil, Garrett, Somerset, Talbot and
Worcester Counties; Four Delegates per County—Carroll, Dorchester, Harford, and
8
Wicomico Counties; Six Delegates per County—Allegany, Anne Arundel, Baltimore,
Frederick, Montgomery, Prince George’s, and Washington Counties.
During the first half of the twentieth century, population increases in the State’s
urban areas did not result in increased legislative representation. As a result, the General
Assembly experienced lengthy periods of severe malapportionment. Then-President of the
Senate William S. James6 remarked that “[i]n the areas of fair representation, the General
Assembly flunked all tests. . . . The groundwork was laid for intervention by the courts to
order fair legislative apportionment[—]a task beyond the capacity of legislators.”
Maryland Dep’t of Leg. Servs., Under the Dome: The Maryland General Assembly in the
20th Century, 4–5 (2001).
Baker v. Carr forced states to abandon county boundaries as legislative district lines
and apportion substantially equal population in each district to comply with the principle
of one person, one vote. By constitutional amendment in 1969, and in response to Baker
v. Carr, the notion that districts be “compact in form” was first added to Article III, § 4.
See 1969 Md. Laws, ch. 785, ratified November 3, 1970. The modern language of the
provision, discussed in more detail infra, came by constitutional amendment in 1972. See
1972 Md. Laws, ch. 363, ratified November 7, 1972.
6
William S. James, Md. State Archives,
https://msa.maryland.gov/megafile/msa/speccol/sc3500/sc3520/001500/001556/html/155
6bio.html, archived at https://perma.cc/J8G6-DFQC.
9
B. Modern Districting
Following the first post-Baker reapportionment, this Court began forming its
districting jurisprudence.7 Despite the use of the term “modern,” the districting processes
of 1972 and 2022 are vastly different.
In early districting cycles, districts were hand-crafted by spreading out large paper
maps on the floor, tallying population totals from census blocks using a handheld
calculator, and shading census blocks using colored pencils. “Old-time efforts, based on
little more than guesses, sometimes led to so-called dummymanders—gerrymanders that
went spectacularly wrong. Not likely in today’s world.” Rucho, 139 S. Ct. at 2512–13
(Kagan, J., dissenting).
Make no mistake, districting has immeasurably changed over the last two decades.
Today, geographic information system (“GIS”) mapping programs, such as Maptitude,
generate population totals and other demographic data in milliseconds with the drag of a
cursor over a new census block. As Justice Kagan explained:
Mapmakers now have access to more granular data about party preference
and voting behavior than ever before. County-level voting data has given
way to precinct-level or city-block-level data; and increasingly, mapmakers
avail themselves of data sets providing wide-ranging information about even
individual voters. Just as important, advancements in computing technology
have enabled mapmakers to put that information to use with unprecedented
efficiency and precision. While bygone mapmakers may have drafted three
7
I adopt citations to previous districting decisions of this Court similar to those used by
the Majority: In re Legislative Districting, 271 Md. 320 (1974) (“1973 Districting”); In re
Legislative Districting, 299 Md. 658 (1984) (“1982 Districting”); Legislative Redistricting
Cases, 331 Md. 574 (1993) (“1992 Districting”); In re Legislative Districting of State, 370
Md. 312 (2002) (“2002 Districting”); and In re 2012 Legislative Districting, 436 Md. 121(2013) (“2012 Districting”).
10
or four alternative districting plans, today’s mapmakers can generate
thousands of possibilities at the touch of a key—and then choose the one
giving their party maximum advantage (usually while still meeting
traditional districting requirements).[8] The effect is to make gerrymanders
far more effective and durable than before, insulating politicians against all
but the most titanic shifts in the political tides.[9] These are not your
grandfather’s—let alone the Framers’—gerrymanders.
Rucho, 139 S. Ct. at 2513 (Kagan, J., dissenting).
In recent years, voter records, data, and social media proved to be the new front of
elections. Democratic and Republican entities alike host enormous repositories designed
to identify and target voters based on hundreds of sources of information. Indeed, over
three hundred demographic and psychographic attributes are maintained on nearly every
household in the United States. Demographic information, such as political affiliation,
residential address, zip code, marital status, number of children, age, gender, religious
affiliation, voting history, household income, and social media presence inform the
microtargeting of voters and, with advanced statistical analysis and mapping programs,
8
In Rucho, amici cautioned that modern day mapmakers “can use software to generate
tens of thousands of possibilities, all precisely engineered based on hyperlocal voting data,
allowing partisan actors to select the single map that exhibits the greatest partisan
advantage.” Brief for Political Science Professors as Amici Curiae Supporting Appellees,
Rucho, 139 S. Ct. 2484, 2019 WL 1167919, at *24. “These tools enable mapmakers to
reduce the risk that they have drawn anything less than a maximally-partisan map, which
in turn enable them to create more durable and aggressive partisan gerrymander.” Id. at
*24–25.
9
The exceedingly effective and durable gerrymanders Justice Kagan describes are
technologically designed to survive swings in the popular vote. Voters drawn into these
districts cannot save themselves; their “elected representatives” chose them, and there
exists no effective recourse.
11
transform voter data into exponentially more effective, extreme partisan gerrymanders.
This information is used to microtarget and track voters.
Amici in Rucho warned that:
As powerful as current methods are, predictive modeling and other
large-scale analytical tools will become more potent in the near future. New
technologies and data sources, such as augmented voter files and modern
machine-learning algorithms, will make it easier for mapmakers to predict
the decision-making habits of Americans in a more nuanced and accurate
way than ever before. When applied to the process of redistricting, new data
analysis techniques will enable partisan mapmakers to create gerrymanders
that are even more biased, more durable, and more capable of withstanding
the effects of “wave” election years.
Brief for Political Science Professors as Amici Curiae Supporting Appellees, Rucho, 139
S. Ct. 2484, 2019 WL 1167919, at *25.
Courts of last resort in other states have increasingly turned to court consultants for
advice and assistance in their judicial review of legislative districting plans because of these
advancements in an age of highly sophisticated mapping programs and voter
microtargeting. This Court used such an expert in 2002, and it is disappointing that the
Court in the instant cases did not use an independent expert to help understand the data
underlying the plan presented to the Court especially because, as shown infra, the statistical
reports given to the Special Magistrate contain contradictory demographic data from the
reports that were distributed to the public through the Department of Planning and General
Assembly “Redistricting” websites.
The Majority’s decision today cements in our jurisprudence the notion that
Maryland’s “compact in form” is a toothless constitutional requirement that abandons the
standard adopted by this Court in 1982 and supplants it with total deference to the General
12
Assembly regardless of the district’s contours. Armed with granular data on Maryland’s
households and microtargeting of voters, the General Assembly can use mapping
technology that surgically carves the most precise partisan districts. This Court stands idly
by and, with the intentionally designed and sharply gerrymandered district lines, sentences
the voters of this State to death by a thousand partisan paper cuts. Slowly, but surely—
unchecked by this Court—extreme partisan gerrymanders will become increasingly more
prevalent and durable.
DISCUSSION
I begin with the Court’s constitutional mandate “upon petition of any registered
voter”: “the Court of Appeals shall have original jurisdiction to review the legislative
districting of the State and may grant appropriate relief, if it finds that the districting of the
State is not consistent with requirements of either the Constitution of the United States of
America, or the Constitution of Maryland.” Art. III, § 5. The Court is duty-bound by this
broad grant of jurisdiction to review all aspects of the challenged districting. Any
constitutional infirmity discovered during review—whether or not raised by a particular
petition challenging the legislative districting—will invalidate the plan. To otherwise turn
a blind eye repudiates our role as non-partisan, neutral arbiters of the law.
I agree with the Majority’s summation of the burdens of proof that govern various
stages of the districting process. See Maj. Slip Op. at 44–46. I part ways, however, with
the Majority’s conclusion that there exists no compelling evidence of a violation of Article
III, § 4 on the issues of compactness, contiguity, or due regard. The Special Magistrate’s
13
conclusion that the Petitioners failed to meet their burden is a conclusion of law, which this
Court reviews de novo. 2012 Districting, 436 Md. at 179.
I would sustain certain of the Petitioners’ exceptions and hold that “compelling
evidence demonstrates that the plan has subordinated mandatory constitutional
requirements to substantial improper alternative considerations.” 1992 Districting, 331
Md. at 614. Where, as here, that occurs, the burden shifts to the State to produce “sufficient
evidence” to demonstrate that the plan is compliant with the requirements of Article
III, § 4. 2012 Districting, 436 Md. at 137–38. Because the State’s showing falls woefully
beneath the bar of “sufficient evidence,” I would hold that the State failed to meet its
burden. Accordingly, I would reject the plan. I shall explain.
A. Legislative Privilege and Transparency in Districting
Inextricably woven throughout the 2022 Districting is the General Assembly’s lack
of transparency in creating the legislative districting plan and absolute assertion of
legislative privilege. Both frustrate this Court’s constitutional mandate to determine
whether the plan complies with the provisions of Article III, § 4.
I cannot think of anything in the Majority Opinion that is more consequential than
its decision to allow the General Assembly to formulate districting plans in secret under
the guise of legislative privilege. For this districting cycle, and those to follow, the
assertion of absolute, legislative privilege will keep the public in the dark as to how the
General Assembly designs legislative districts. As I relate the issues concerning the
General Assembly’s approach to drawing new legislative districts with high-powered
14
computer programs in backroom secrecy, ask yourself: Is this how Maryland redistricting
is supposed to work?10
1. Original Jurisdiction
This Court alone is charged with determining whether the districting of the State is
constitutionally sound. Art. III, § 5. In the realm of apportionment, under our
constitutional arrangement, “the function of the courts is limited to assessing whether the
principles underlying the compactness and other constitutional requirements have been
fairly considered and applied in view of all relevant considerations.” 1982 Districting, 299
Md. at 688; see also 2002 Districting, 370 Md. at 361 (same); 2012 Districting, 436 Md.
at 154–55 (same).
Implicit in this constitutional mandate is the ability to evaluate the information and
decision-making process by which legislative districts are drawn. If the Court is not
provided information about how the General Assembly designed the districts, and the Court
cannot require the State to produce such information, it cannot fulfill its constitutional duty.
By invoking legislative privilege, the State deprives this Court of its ability to assess
whether “constitutional requirements have been fairly considered and applied in view of
all relevant considerations.”
10
Justice Kagan posed a similar rhetorical question as it concerned congressional
districting: “As I relate what happened in those two States [North Carolina and Maryland],
ask yourself: Is this how American democracy is supposed to work?” Rucho, 139 S. Ct. at
2509 (Kagan, J., dissenting).
15
“The ultimate purpose of the judicial process is to determine the truth.”11 Norman
v. Borison, 418 Md. 630, 652 (2011) (quoting Adams v. Peck, 288 Md. 1, 5 (1980)). On
the relatively infrequent occasions where this Court exercises original jurisdiction, the
responsibility becomes ours to seek out the truth of a dispute. Our truth-seeking function
is thwarted where, as here, the Majority turns a blind eye toward the withholding of critical
information under the guise of legislative privilege. On this alone, because the broad
invocation of legislative privilege precludes the Court from satisfying its constitutional
duty to exercise its truth-seeking original jurisdiction, I would reject the plan.
2. Legislative Privilege
These cases mark the first time that this Court has considered whether the General
Assembly may invoke legislative privilege over the process of legislative districting. As
best I can tell, the General Assembly has not previously invoked legislative privilege in
this context. To put it bluntly, despite five decades of districting challenges, the Court has
never had occasion to consider the propriety of this invocation. Until now. And at this
fork in the road, the Majority has no quarrel with the General Assembly’s regression from
public transparency.
11
This concept is borne from “litigation privilege,” which, unlike the legislative privilege,
immunizes individuals from statements made at trial to “foster the ‘free and unfettered
administration of justice.’” Norman v. Borison, 418 Md. 630, 651–52 (2011) (quoting
Keys v. Chrysler Credit Corp., 303 Md. 397, 404 (1985); see also O’Brien & Gere
Engineers, Inc. v. City of Salisbury, 222 Md. App. 492, 509 (2015) (“[T]he truth of a
dispute is decided by a neutral fact-finder in a judicial proceeding where each party,
ordinarily through counsel, advocates his position by presenting evidence, challenging his
opponent’s evidence through cross-examination and otherwise, and arguing in favor of
what the party sees as the just result.”).
16
While the Majority sustains the assertion of legislative privilege, I do not believe
the privilege is applicable here. The privilege stems from Article 10 of the Maryland
Declaration of Rights, the “speech and debate clause,” which provides “[t]hat freedom of
speech and debate, or proceedings in the Legislature, ought not to be impeached in any
Court of Judicature.” The privilege is construed in pari materia with the corollary federal
provision contained in Article I, Section 6 of the federal constitution. See Blondes v. State,
16 Md. App. 165, 175 (1972).
The speech and debate clause extends “to things generally done in a session . . . by
one of its members in relation to the business before it.” Hutchinson v. Proxmire, 443 U.S.
111, 126 (1979) (internal quotation omitted and emphasis in original). Thus, it is clear
there must be a discernable connection between the business of the legislature and the
assertion of privilege. As the Supreme Court put it:
Legislative acts are not all-encompassing. The heart of the Clause is
speech or debate in either House. Insofar as the Clause is construed to reach
other matters, they must be an integral part of the deliberative and
communicative processes by which Members participate in committee and
House proceedings with respect to the consideration and passage or rejection
of proposed legislation or with respect to other matters which the
Constitution places within the jurisdiction of either House. . . . [T]he courts
have extended the privilege to matters beyond pure speech or debate in either
House, but “only when necessary to prevent indirect impairment of such
deliberations.”
Gravel v. United States, 408 U.S. 606, 625 (1972) (internal citation omitted and emphasis
added).
In addition to these interpretations of the legislative privilege, the Legislative Desk
Reference Manual, maintained by the Department of Legislative Services, confirms that
17
the privilege is not as far-reaching as the Majority permits. See Maryland Dep’t of Leg.
Servs., Legislative Desk Reference Manual, 29–32 (2018),
http://dlslibrary.state.md.us/publications/OPA/I/LDRM_2018.pdf, archived at
https://perma.cc/6VGK-FWK3. The Legislative Desk Reference Manual refers to
“Legislative Immunity” that “extends to words spoken or votes taken in committee
hearings and proceedings, and to the contents of committee reports,” but does not “extend
to acts that are not an integral part of the legislative process, even if taken as part of the
legislator’s duties.” Id. at 29.
The Majority relies on two decisions of the Court of Special Appeals to reach its
overbroad conclusion that legislative privilege applies here: Montgomery County v.
Schooley, 97 Md. App. 107 (1993), and Floyd v. Baltimore City Council, 241 Md. App.
199 (2019).12
With regard to the former, the Majority clings to the assertion that “a legislator, even
if not a party to the action and thus not subject to any direct consequence of it, cannot be
compelled to explain, other than before the legislative body of which he is a member, either
his legislative conduct or ‘the events that occurred’ in a legislative session.” Schooley, 97
Md. App. at 117. The Majority passingly refers to Marylanders for Fair Representation v.
Schaefer, 144 F.R.D. 292 (D. Md. 1992), upon which Schooley relies. Schaefer,
importantly for our purposes, seemingly placed a temporal limitation on when the
12
I note that the Majority’s decision to sustain the assertion of legislative privilege creates
exceedingly important precedent without the benefit of traditional briefing as is customary
in other cases proceeding before this Court. Instead, the Special Magistrate made a
recommendation to the Court based on arguments conducted in a private hearing.
18
legislative privilege attaches to acts of legislators: the three-judge panel “would flatly
prohibit their depositions from being taken as to any action which they took after the
redistricting legislation reached the floor of the General Assembly . . . .” Schaefer, 144
F.R.D. at 305 (emphasis added). The discovery requests at issue here pertain to factual
material created before the introduction of Senate Joint Resolution 2 in either chamber of
the General Assembly.
As to the latter, the Majority relies on Floyd to suggest that a “judicial carve-out of
an exception to the application” of legislative privilege “would be inappropriate” and best
left to the General Assembly. 241 Md. App. at 214. This may be true when the legislative
privilege conflicts with the requirements of the Open Meetings Act, as was the case in
Floyd. However, with respect to legislative districting, a weightier topic—which sets the
foundation for our representative democracy and is enshrined in our constitution, not
statute—this Court should consider whether an exception is warranted. I would hold that
it is.
A distinction lies between the General Assembly’s prerogative to invoke legislative
privilege for shielding its deliberative process and the public’s right to know, in this
context, how legislative districting plans are drawn and what, if any, outside data or
influences impacted the process.
3. Democratic Performance Index as a Basis for the 2022 Plan
To fully understand Petitioners’ argument and discovery request, I must first explain
the events giving rise to Benisek v. Lamone, in which Maryland voters challenged partisan
gerrymandering in the 2012 congressional districting. Evidence adduced over the course
19
of that litigation revealed the manner in which the General Assembly enacted the 2012
congressional districts. The National Committee for an Effective Congress (“NCEC”)13
“was specifically charged with drawing a map that maximized ‘incumbent protection’ for
Democrats and changed the congressional delegation from 6 Democrats and 2 Republicans
to 7 Democrats and 1 Republican, and it was given no other instruction as how to draw the
map.” Benisek v. Lamone, 266 F. Supp. 3d 799, 823 (D. Md. 2017) (Niemeyer, J.,
dissenting), aff’d, Benisek, 138 S. Ct. 1942 (2018).
To achieve this result, an NCEC analyst “used a proprietary metric created by
NCEC called the Democratic Performance Index . . . , which indicates how a generic
Democratic candidate would likely perform in a particular district.” Id. (Niemeyer, J.,
dissenting). As explained by NCEC, the Democratic Performance Index “is an accurate
cornerstone on which campaigns build their vote goals and paths to victory. [The
Democratic Performance Index] is backed with the NCEC’s extensive repository of actual
candidate performance—the most comprehensive archive of its kind spanning back to the
early 1980s.” About Us, National Committee for an Effective Congress,
https://ncec.org/about/, archived at https://perma.cc/ZU9H-BVYA. NCEC “select[s],
integrat[es], format[s], and audit[s] election results as well as demographic data for almost
every precinct in the country.” Id.13
NCEC is a “a stalwart supporter of progressive candidates” that “support[s] candidates
and campaigns with data and analysis to plan campaign strategies.” About Us, National
Committee for an Effective Congress, https://ncec.org/about/, archived at
https://perma.cc/ZU9H-BVYA.
20
And, Benisek revealed that NCEC undertook similar calculations to apply in state
legislative districting: “NCEC also calculated separate versions of the [Democratic
Performance Index] specific to federal and state races—with the federal [Democratic
Performance Index] ‘only us[ing] federal races’ and the state [Democratic Performance
Index] ‘only us[ing] state races’—to better account for ‘ticket splitting.’” 266 F. Supp. 3d
at 823 (Niemeyer, J., dissenting). The NCEC analyst, working in conjunction with
“Maryland’s Democratic House Delegation and their staff,” prepared several draft maps
before “[u]ltimately, Maryland’s Democratic members of the U.S. House Delegation
proposed and forwarded to the state Democratic leadership at least two [NCEC] maps.”
Id. at 824 (Niemeyer, J., dissenting).
The Petitioners are caught in a classic “Catch-22.”14 They presume, based upon the
evidence developed in Benisek, that the presiding officers in 2022 continued the same
practice used in 2012 to rely upon outside consultants who use a “Democratic Performance
Index” to methodically and precisely design Senate and House districts to protect
incumbents and expand opportunities to pick up additional seats. Their petitions assert,
based upon “information and belief,” that these practices caused extreme partisan
gerrymandering in violation of the Maryland Constitution. The “Catch-22” is that, if the
presiding officers assert legislative privilege to shield discovery of any outside consultants
14
“Catch-22” is a term made popular by author Joseph Heller in his 1961 novel of the same
name. A catch-22 is a dilemma that cannot be solved due to contradictory rules or
limitations that result in circular logic. See Baltimore Cty. v. Baltimore Cty. Fraternal Ord.
of Police Lodge No. 4, 439 Md. 547, 583 (2014) (McDonald, J., dissenting).
21
and Democratic performance algorithms, then Petitioners are precluded from proving their
case.
The effect of the Democratic Performance Index in the current plan is revealed by
reference to a district’s competitiveness. During floor debate in the Senate, and relying on
“Dave’s Redistricting,” Senator Michael J. Hough explained that this plan reduces the
number of competitive Senate districts to only four: Districts 4, 34, 37, and 42. Senate
Proceedings No. 6, Floor Debate on Senate Joint Resolution 2, January 19, 2022, at 23:50,
https://mgaleg.maryland.gov/mgawebsite/FloorActions/Media/senate-6-, archived at
https://perma.cc/RZ5V-RZ6H (“Senate Proceedings No. 6”). In these four districts, all
four incumbents are members of the Republican Party. No competitive district has a
Democratic incumbent facing a serious challenge by a Republican, which effectively locks
in a supermajority of 32 Democratic Senators.15 Senator Hough continued, “[i]t’s very
obvious that the goal of this map was very simple: take any districts that were competitive,
or that the [Republican] Party would have a chance at winning, and shore them up and
make them noncompetitive. That is partisan gerrymandering 101.” Id. at 24:42.
If Senator Hough is correct, and this map is so microtargeted that only 4 of 47 Senate
districts are competitive, 43 of the State’s 47 Senate Districts are controlled in the party
primary. The state election laws allow the political parties to determine who can vote in
their primaries and the two principal parties hold “closed” party primaries. See Maryland
15
See Membership Profile, Maryland General Assembly,
https://mgaleg.maryland.gov/pubs-current/current-member-profile.pdf, archived at
https://perma.cc/9EBM-F2SP.
22
Code (2003, Repl. Vol. 2022), Election Law Article (“EL”) § 8-202. Unaffiliated voters
cannot “crossover” to participate in a party primary, which is allowed in states with “open”
primaries. Id.
The result is that those 43 districts subject to extreme partisan gerrymandering are
noncompetitive except in the party primary. When a party primary decides the election
due to the underlying microtargeting, then the general elections become irrelevant and, in
effect, the unaffiliated and third-party voters, who together make up 22% of Maryland
voters, are disenfranchised.16
4. Petitioners’ Discovery Request and the Invocation of Legislative Privilege
Here, the Petitioners seek factual information that is not protected by legislative
privilege. Petitioners propounded the following discovery requests:
(1) who was responsible for the actual drawing or construction of the specific
legislative districts Petitioners have challenged;
(2) if a computer program was used, what criteria was the program instructed
to use to draw the legislative districts Petitioners have challenged;
(3) who provided instructions to the actual map drawer(s) regarding what
factors or other criteria were to be used in drawing the legislative districts
Petitioners have challenged; and
16
Based upon voter registration statistics in April 2022, at the time of oral argument in
these cases, third-party and unaffiliated registrations totaled 924,949 voters (Unaffiliated—
831,254; Libertarian—16,954; Green Party—6,350; The Working Class Party—3,595; and
Other—43,492). For reference, total active registration in Maryland is 4,114,208, made up
of 54% Democratic Party (2,228,432); 24% Republican Party (984,131) and 22% third-
party and unaffiliated voters (924,949). See Summary of Voter Registration Activity Report,
Maryland State Board of Elections, April 2022,
https://elections.maryland.gov/pdf/vrar/2022_04.pdf, archived at https://perma.cc/LF9G-
3V85.
23
(4) what specific instructions were given to the map drawer(s) regarding the
various legislative districts Petitioners have challenged.
Amended Order of Special Magistrate Regarding Discovery, at 4–5 (March 11, 2022)
(“Special Magistrate’s Discovery Order”) (quoting from memorandum by counsel for
Misc. No. 25 Petitioners, “Strider L. Dickson[,] Memorandum Concerning Applicability of
Legislative Privilege to Petitioners Discovery Requests, at 2, 3”).
The Petitioners’ propounded discovery requests do not seek disclosure of
“legislative conduct or the ‘events that occurred’ in a legislative session.” Schooley, 97
Md. App. at 117. The information sought does not strike at the heart of the deliberative
process. Instead, I find this Court’s decision in Hamilton v. Verdow instructive. 287 Md.
544 (1980). There, grappling with executive privilege, we observed that not all assertions
of the executive privilege are treated equally. See id. at 563. More often, depending on
whether the privilege is asserted “for potential evidence at a criminal trial, or where there
is an allegation of government misconduct, or where the government itself is a party in the
underlying litigation,” courts will “engage in a balancing process, weighing the need for
confidentiality against the litigant’s need for disclosure and the impact of nondisclosure
upon the fair administration of justice.” Id. at 563–64 (footnotes omitted).
I, too, would draw a distinction when it comes to the legislative privilege in the
context of districting. In districting, the State is a party to the litigation and the impact of
nondisclosure has an irreversible negative impact upon the fair administration of justice.
Because it is of unique importance, a careful balancing test must be applied to weigh the
applicability of the privilege. See Hamilton, 287 Md. at 565 (“[C]ourts weigh[] the
24
government’s reasons for non-disclosure against the need for discovery, sometimes
upholding the claim of privilege in its entirety, sometimes rejecting the claim in its entirety,
and sometimes requiring the production of some but not all of the materials sought.”).
Here, I would carefully limit the applicability of the privilege to the deliberative process,
legislative conduct, and the events occurring in a legislative session, not factual data
underlying formulation of the plan.
To be sure, as Hamilton explains, a balancing process may be of great utility where
the information sought contains factual material. 287 Md. at 564–65. Certain documents
“consisting only of compiled factual material or purely factual material contained in
deliberative memoranda and severable from its context would generally be available for
discovery,” while opinions and recommendations are more likely protected by privilege.
Id.What the Majority fails to appreciate is that, no matter the type of privilege at
issue—legislative or executive—in camera review exists to evaluate the legitimacy of an
assertion of privilege.17 Here, exercising our original jurisdiction as a trial court, the Court
should have reviewed the information sought and made a threshold determination. “The
in camera inspection may be utilized to determine whether the material is privileged, to
sever privileged from non-privileged material if severability is feasible, and to weigh the
17
In fairness, the occurrence of in camera review is an “intrusion upon the privilege” in
and of itself. Hamilton, 287 Md. at 566. Therefore, it is not automatic upon every assertion
of privilege. “The burden is on the party seeking production to make a preliminary showing
that the communications or documents may not be privileged or, in those cases where a
weighing approach is appropriate, that there is some necessity for production.” Id. I would
say, at a minimum, the Petitioners satisfied this initial burden to warrant in camera review.
25
government’s need for confidentiality against the litigant’s need for production.”
Hamilton, 287 Md. at 567. Had this occurred, and the Court reviewed the information
sought by Petitioners, perhaps the outcome of these cases would have turned on very
different grounds. But, only the General Assembly will ever know.
Utilizing Schooley, the Majority suggests that a member of the legislature may only
be compelled to explain himself or herself before the legislative body in which he or she is
a member. 97 Md. App. at 117. The Majority effectively says that Petitioners
metaphorically “missed the boat” by failing to obtain answers to their questions in the
legislature. The Majority takes issue with Petitioners for not asking any questions at the
abbreviated public hearings on the districting plan. However, when a legislative initiative
is a “party call”—i.e., leadership directs all party members to vote affirmatively on a
measure, thereby greasing the skids for the bill’s rushed passage—opponents know that
they will not change any votes in the minority party and will be steamrolled in the
legislative process. Therefore, they will defer any questioning at committee hearings and
wait until the floor debate hoping to, at the least, score some points in the arena of public
opinion.
The Majority’s determination that the districting process was fair and transparent
relies upon an exchange that occurred in the Senate Reapportionment and Redistricting
Committee’s joint hearing with the House Rules and Executive Nominations Committee:
Delegate Kathryn Szeliga, a member of the House Rules and
Executive Nominations Committee, asked [Chairman] Aro and Ms. Davis
who had drawn the maps and whether public money was spent on outside
consultants. Ms. Davis testified that making the plan involved a number of
aspects so that the staff varied with the particular task, that DLS and LRAC
26
members’ staffs worked on it, that some DLS staff worked on the bill-
drafting aspects and others on the map-drawing, and that outside consultants
had not been hired. [Chairman] Aro stated that DLS’s budget takes the map-
making process into account and that consultants were not hired. The Senate
committee gave the bill concerning the LRAC plan a favorable report.
Maj. Slip Op. at 36 (footnotes omitted).
In a technical sense, the response given by Chairman Aro and Ms. Davis, a DLS
staffer, is correct: DLS created the materials presented to the General Assembly—
preparing the legislative district maps drawn on Maptitude, drafting the bills introduced as
Senate Joint Resolution 2 and House Joint Resolution 2, and crafting the corresponding
fiscal and policy notes. No public money was used on outside consultants because “NCEC
provides its data and analysis to progressive candidates at no cost to them.” About Us,
National Committee for an Effective Congress, https://ncec.org/about/, archived at
https://perma.cc/ZU9H-BVYA (emphasis in original). Accordingly, this exchange does
not answer the question as to whether data provided by outside consultants was used in
preparing the maps. What remained unanswered after this exchange was what underlying
data, if any, was implemented in providing a foundation for the line drawing and census
tract descriptions later completed by DLS.
To demonstrate extreme partisan gerrymandering, Petitioners propounded
discovery seeking to show that the NCEC’s Democratic Performance Index guided the
drawing of the districts during 2022 Districting. The State invoked legislative privilege.
At this impasse, on March 5, 2022, the parties jointly notified the Special Magistrate of a
discovery dispute. That notice is not publicly available. The Special Magistrate heard
arguments from Petitioners and the State at a “remote meeting” on March 8, 2022. A video
27
record of that hearing is not publicly available. Seemingly, the parties briefed the issue
before the Special Magistrate. See Special Magistrate’s Discovery Order, at 5 (quoting
from memorandum by counsel for Misc. No. 25 Petitioners, “Strider L. Dickson[,]
Memorandum Concerning Applicability of Legislative Privilege to Petitioners Discovery
Requests, at 2, 3”). Those memoranda are not publicly available on Maryland Electronic
Courts (“MDEC”), which composes the record in these cases.18
Yet, relying on arguments made out of public view, the Special Magistrate made a
critical recommendation with far-reaching ramifications. As applied in the instant case,
the evidence needed to prove the level of gerrymandering is concealed from the public and
unavailable for the Petitioners to prove before the Special Magistrate. More broadly, the
Majority now cements the applicability of legislative privilege in our districting
jurisprudence. Under the Majority’s rationale, any future use of outside consultants in
districting, with high-tech map-drawing programs, is protected by an assertion of
legislative privilege—which, at its core, is intended to protect legislators in the exercise of
their duties during a legislative session. Given the extreme importance of districting, and
how it ought to be a fully transparent process,19 this Court should not sanction the
concealment of what I believe to be vital and nonprivileged information.
18
The Court is making an effort to complete the record, but as of this writing, submissions
and arguments to the Special Magistrate are unavailable to the public.
19
Take, for example, North Carolina. That state employs a public terminal where any
member of the public can design a districting plan using districting software and reference
data. See Public Redistricting Terminal, North Carolina General Assembly,
https://www.ncleg.gov/Redistricting/PublicTerminal, archived at https://perma.cc/DY7C-
28
The Majority attributes transparency for the adopted plan based upon the fact that
there were 16 public meetings held across the state by the members of LRAC. Maj. Slip
Op. at 32. But, if the General Assembly created the underlying map for the adopted plan
in secrecy, by an outside consultant utilizing the Democratic Performance Index, how is
the public served by that lack of transparency? Indeed, the public comment and testimony
is of no value at all where actual decisions are made in back rooms with outside consultants
and algorithms on Democratic performance that never receive the light of public scrutiny.
The Majority suggests that Ms. Davis conclusively settled this issue by her answers
throughout the legislative process. See Maj. Slip Op. at 36 n. 25. But Ms. Davis’ answers
in the legislative process do not satisfactorily answer the questions Petitioners had in
propounding the discovery at issue. Ms. Davis may have been correct—the General
Assembly did not procure outside consultants to draw the plan. However, Petitioners
sought information in discovery designed to ferret out whether, for example, outside
consultants produced example districting plans from which the General Assembly could
copy or outside consultants produced Democratic Performance Index data so the General
Assembly could draw a plan in conformity therewith. Without that information, this Court
and the voters cannot assess the foundation of the plan.
This is a Court that has always upheld the public’s right to know with a strict
interpretation of the “Sunshine Acts” concerning open meetings and access to public
information. The Majority fails to absorb the secrecy that occurred under the LRAC
78QK. All plans created using the terminal are public information and archived for public
access. Id.
29
process in drawing the adopted plan and then condones that secrecy by endorsing
legislative privilege to conceal data from the public. The formal sounding name of
LRAC—Legislative Redistricting Advisory Commission—gives the impression that this
is a legislative joint committee with all of the responsibilities of open meetings and public
access. But it is not. The LRAC held its meetings and made its decisions in secret. As
explained on the Senate Floor by LRAC member Senator Melony Griffith, the LRAC work
sessions were not advertised, not open to the public or streamed online, and not open to the
media because “ultimately this bipartisan group was not a public body, so I don’t believe
they were required to have that meeting held in public.” Senate Proceedings No. 6, at
58:28.
Meanwhile, the Majority values purported public input at public meetings and
testimony in floor debates. It simultaneously fails to recognize that sustaining the General
Assembly’s assertion of legislative privilege conceals the fact that the master plan for
legislative districts was developed in secret without any regard to the public’s right to know
the data used for the adopted plan. The sixteen public hearings held by LRAC and the
quickly arranged legislative hearings in January, upon which the Majority relies for
“transparency,” are actually a façade of window dressing that prevents the public from
legitimate input and hides from voters any knowledge of the real map-drawing process.
In all, this plan is bedeviled by an unrelenting lack of transparency. Petitioners’
third exception concerns the Special Magistrate’s discovery ruling, which had the effect of
denying Petitioners’ discovery requests. Misc. No. 25 Exceptions, at 34–40. I would
30
sustain Petitioners’ exception, overrule the Special Magistrate’s discovery ruling, and grant
the discovery requests propounded by Petitioners.
B. Constitutional Requirement that Districts be Compact in Form
Article III, § 4 requires that legislative districts be “compact in form[.]” To define
this constitutional requirement, better known as “compactness,” this Court—in the
1980s—considered how a handful of states interpreted similar compactness requirements
and sought to define the concept as it applied in Maryland. Compactness, we said, is “a
requirement for a close union of territory (conducive to constituent-representative
communication), rather than . . . a requirement which is dependent upon a district being of
any particular shape or size.” 1982 Districting, 299 Md. at 688. Since the 1982 Districting,
this Court has not meaningfully discussed the compactness requirement or elaborated on
this definition. The Court misses an opportunity here to refine one of the few constitutional
standards—one that serves to protect against partisan gerrymandering—in an era of high-
powered computer analytics used in the mapping of Maryland’s legislative districts.
I readily agree that to be “compact in form,” a district must encompass a “close
union of territory.” The crux of the State’s argument, which the Majority implicitly accepts
by its decision, is that where a challenged district’s lines are drawn is of no consequence
in determining whether a district is compact. This approach is not only illogical, but
untenable, in that it necessarily voids the constitutional requirement of compactness.
The Majority mischaracterizes our earlier observations concerning Maryland’s
geography to suggest that “an oddly shaped district does not in itself establish a violation”
of the compactness requirement contained in Article III, § 4. This Court’s pronouncement
31
is not as absolute as the Majority would have it. Instead, in the most egregious of cases, a
district’s shape can establish a violation of Article III, § 4. At the bare minimum, this
Court’s 1982 Districting decision embraces the notion that a showing of noncompactness
can constitute the “compelling evidence” required to shift, to the State, the burden of
proving the constitutionality of a challenged district.
1. Rucho and the Invitation to Consider Maryland’s Constitutional Provisions Anew
The 2022 districting cycle is unique. It is the first occasion for redistricting and
reapportionment in Maryland since Rucho. There, the Supreme Court of the United States
concluded that “claims of excessive partisanship” are nonjusticiable and beyond the
jurisdiction of federal courts. Rucho, 139 S. Ct. at 2491, 2506–07. Yet, the Court did not
“condemn complaints about districting to echo into a void.” Id. at 2507. To the contrary,
Rucho recognized that “[t]he States . . . are actively addressing the issue [of excessive
partisan gerrymandering] on a number of fronts. . . . Provisions in state statutes and state
constitutions can provide standards and guidance for state courts to apply.” Id.We have already recognized that the requirement of compactness enshrined in
Article III, § 4 is “intended to prevent political gerrymandering.” 1982 Districting, 299
Md. at 687. The Majority, by declining to enforce the compactness requirement here,
ignores the national trend that our sister states have embraced to tackle the scourge of
partisan gerrymandering. See, e.g., Rucho, 139 S. Ct. at 2507–08 (collecting examples).
Against this backdrop, I will turn to the first and only time this Court has meaningfully
considered the compactness requirement: the 1982 Districting.
32
2. Judicial Interpretation of the Compactness Requirement
a. 1982 Definition
This Court has previously explored the contours of compactness, which requires
that “[e]ach legislative district . . . be compact in form[.]” Art. III, § 4. During the 1982
Districting, we observed, as the Majority recognizes, that “compactness [is] a requirement
for a close union of territory (conducive to constituent-representative communication),
rather than . . . a requirement which is dependent upon a district being of any particular
shape or size.” 1982 Districting, 299 Md. at 688.
b. “Close Union of Territory” Necessarily Requires Consideration of District Lines
Under this Court’s existing definition of compactness—that a district be “a close
union of territory”—the shape or geographic placement of district lines is critical to this
Court’s analysis. Yet, at oral argument, counsel for the State repeatedly denied this basic
premise, arguing:
• “If the Court wants to know what types of shapes are permissible, it need look no
further than its very own map that it produced in 2002.” Oral Argument, Misc. No.
25, at 36:15–36:25.
• “[S]hape in and of itself, and particularly shape based on the Court’s prior districts,
cannot constitute compelling evidence.” Oral Argument, Misc. No. 25, at 38:59–
39:11.
• “[W]hen the compactness argument is based purely on shapes that have already
been sanctioned by this Court, then yes, I think they have to come up with something
more.” Oral Argument, Misc. No. 25, at 42:17–42:30.
33
Counsel for the State further engaged the Court in the following colloquy
concerning the Court’s inquiry into compactness:
[THE COURT]: So what you’re saying is that if the shapes are consistent
with prior shapes, the inquiry is over, we’re done?
[COUNSEL FOR THE STATE]: Unless there’s something else going on
here.[20]
Oral Argument, Misc. No. 25, at 42:35–42:45.
The State argues that once this Court has “blessed”21 a district with irregular
contours, by approving or constructing a particular shape, it must always accept that shape
in future districting cycles.22 One of the benefits of decennial districting, aside from
20
There may be something else going on here—the use of the Democratic Performance
Index. But the State, under the assertion of legislative privilege, conceals whether
“something else is going on here.”
21
Counsel for the State argued: “You can’t get behind the legislative privilege simply
because you don’t like a shape on a map that is based on a shape that this Court has already
blessed.” Oral Argument, Misc. No. 25, at 1:02:27–1:02:37.
22
Without advocating for a “least change approach” or identifying by name the concept of
“core retention”—the notion that voters should be kept in the same districts each cycle—
the State’s argument implies such principles are valid guideposts for this Court’s approval
of the plan. “[T]he ‘least change’ approach necessarily enshrines the partisan advantage
adopted by the political branches [in prior districting cycles]. Its application undermines,
rather than fulfills, the promise of a truly representative government.” Johnson v.
Wisconsin Elections Comm’n, 971 N.W.2d 402, 420 (Wis. 2022) (Bradley, J. concurring),
rev’d by Wisconsin Legislature v. Wisconsin Elections Comm’n, 142 S. Ct. 1245 (2022)
(per curiam). In Maryland, this Court has never considered these principles as secondary
standards, much less as criteria rising to constitutional proportions.
Similarly, during debate on the House floor, Delegates dedicated considerable time
to the notion that when voters are grouped in a legislative district, they become a
“community of interest” worthy of preservation. We discussed communities of interest at
some length in our prior districting jurisprudence. In 2002 Districting, we reiterated those
prior decisions where we said that “the protection of non-official communities of interest”
could not overcome constitutional requirements of Article III, § 4. 370 Md. at 322.
34
updating districts with regard to census numbers, is that the Court can look at the past
districts and improve them to the benefit of Maryland’s voters. We can evaluate the
districts of 2002 and 2012 and adjust so that minorities have better opportunities for
electoral success and to make the districts more competitive so that voters have choices.
But instead, the General Assembly has become beholden over the last twenty years to voter
microtargeting because it makes for less competitive districts and favors incumbents in
party leadership. Regrettably, the Majority fails to recognize this national phenomenon in
voter microtargeting and relegates Maryland voters to the adverse consequences of districts
drawn to protect incumbents and stifle competitiveness.
Returning to this Court’s discussion of the compactness requirement, I now turn to
the fault in the State’s argument.
3. Noncompactness as Proof of Constitutional Violation or “Compelling Evidence”
Relying on our recognition that Maryland’s “geography inhibits the geometric
fashioning of districts of symmetrical compactness,” 1982 Districting, 299 Md. at 687, and
our observation that the compactness requirement does not serve “to promote aesthetically
pleasing district configuration forms,” id., the Majority asserts that “an oddly shaped
district does not in itself establish a violation of Article III, §[]4.” Maj. Slip Op. at 14. I
agree that in most cases, a district’s shape—alone—does not establish a violation.
However, the Majority’s pronouncement is overbroad. Under our caselaw, evidence of
noncompactness can: (1) in egregious cases, establish proof of a violation of Article III,
35
§ 4; or (2) constitute the “compelling evidence” required of Petitioners to shift the burden
of proving compliance with Article III, § 4 to the State.
The Majority faults Maryland’s geography—the fact that it “is oddly shaped and is
not easily divided into regular geometric shapes”—as a blanket excuse for skirting our
established definition of compactness. Maj. Slip Op. at 18. In doing so, the Majority
details: the footprint of the Chesapeake Bay, “rivers and harbors” that make for an
“irregular” shoreline, “a thin area of land” attaching Garrett County and Allegany County
to the eastern parts of the State, and the fact that the District of Columbia “juts into two
counties.” Id. at 16–17.
However, as I shall explain, the majority of the challenged districts do not coincide
with, or even come near, the complained-of state boundaries. Instead, they are districts in
the heart of the State that the General Assembly has drawn to create their own zig-zag
patterns and appendages. The Prince George’s County districts that do border the District
of Columbia arguably provide the best opportunity to create compact districts. Affording
due regard to the county boundary provides a straight line with which the General
Assembly could have, but did not, create “regular geometric shapes.” Id. at 16.
a. Proof of a Constitutional Violation
Egregiously drawn districts—those “of extremely irregular size or shape”—permit
the Court to conclude that such a district is unconstitutionally noncompact with “a glance
at the districting map.” 1982 Districting, 299 Md. at 680 (citation omitted). The Majority
asserts that “an oddly shaped district does not in itself establish a violation of Article III,
§4.” Maj. Slip Op. at 14. But that is not faithful to what this Court previously said: “Oddly
36
shaped or irregularly sized districts of themselves do not, therefore, ordinarily constitute
evidence of gerrymandering and noncompactness.” 1982 Districting, 299 Md. at 687(emphasis added). We continued, “an affirmative showing is ordinarily required to
demonstrate that such districts were intentionally so drawn to produce an unfair political
result, that is, to dilute or enhance the voting strength of discrete groups for partisan
political advantage or other impermissible purposes.” Id. (emphasis added). Generally,
“irregularity of shape or size of a district is not a litmus test proving violation of the
compactness requirement.” Id.We did not say that a district’s shape may never evince noncompactness. Though
not in every case, or even most cases, we left open the door that a district could be drawn
so egregiously that its odd or irregular shape could establish a violation of Article III, § 4.
And rightfully so. A hypothetical district beginning in Maryland’s western-most Garrett
County and narrowly twisting and turning to encompass parts of St. Mary’s County or
Worcester County could be so egregiously noncompact as to establish a violation of Article
III, § 4. See generally Schrage v. State Board of Elections, 430 N.E.2d 483 (Ill. 1981)).
And, this understanding is consistent with what this Court said in 1982 after
surveying other states’ approaches to the compactness requirement. 1982 Districting, 299
Md. at 676–87. Looking to the interpretation of compactness as discussed in our sister
states, including Rhode Island, New York, Pennsylvania, Missouri, New Jersey, and
Colorado, caused us to recognize that compactness “must be applied in light of, and in
harmony with,” the other requirements of Article III, § 4. Id. at 680; see also id. at 688
(emphasis omitted) (“[I]n determining whether there has been compliance with the
37
mandatory compactness requirement, due consideration must be afforded, as the cases
almost uniformly recognize, to the ‘mix’ of constitutional and other factors which make
some degree of noncompactness unavoidable, i.e., concentration of people, geographic
features, convenience of access, means of communication, and the several competing
constitutional restraints, including contiguity and due regard for natural and political
boundaries, as well as the predominant constitutional requirement that districts be
comprised of substantially equal population.”).
Therefore, while “it cannot ordinarily be determined by a mere visual examination
of an electoral map whether the compactness requirement has been violated,” we made
clear that “in some instances involving districts of extremely irregular size or shape[,] a
glance at the districting map may permit the conclusion that a district is not constitutionally
compact.” 1982 Districting, 299 Md. at 680 (citing Schrage, 430 N.E.2d 483 (Ill. 1981)).23
To be sure, only the extreme district will meet this high bar and provide proof of a
constitutional violation. But our precedent has not foreclosed Petitioners from establishing
23
In 1982 Districting, this Court discussed Schrage in relation to a challenged Maryland
district, District 17. 299 Md. at 680. We observed that the Illinois court found the Illinois
“district to be noncompact . . . because of its unwieldy size.” Id. (citing Schrage, 430
N.E.2d at 489). The Illinois district “involved a challenge to a state legislative district of
extremely irregular size, running in excess of 125 miles through 20 townships, 6 counties,
parts of 4 congressional districts, 2 Appellate Court districts, and 5 formerly apportioned
state delegate districts.” Id. In comparing District 17 to the Illinois district deemed
noncompact, we said, “District 17 is but a fraction of the size of the district involved in
Schrage and we see no parallel between the two districts. Moreover, we note that District
17 is widest at its center, while the district condemned in Schrage was most narrow at its
center (typical of the so-called dumbbell shape).” Id. at 689. This discussion confirms our
Court’s willingness to find, at minimum, evidence of noncompactness by reference to a
district’s physical boundaries, as I shall explain more, infra.
38
a constitutional violation—i.e., noncompactness—by reference to egregiously odd-shaped
districts.
b. “Compelling Evidence”
More commonly, evidence of noncompactness in a legislative districting plan
constitutes the “compelling evidence” necessary to shift the burden of justifying
constitutionality to the State. There can be no doubt that the constitutional requirements
of Article III, § 4—including compactness—are mandatory. 2002 Districting, 370 Md. at
356 (“These requirements are mandatory and not ‘suggestive[.]’”); 1982 Districting, 299
Md. at 681 (“Like compactness and contiguity, the ‘due regard’ requirement is of
mandatory application . . . .”). In satisfying the mandatory compactness requirement, “due
consideration” shall still be afforded to the constitutional and other factors. 1982
Districting, 299 Md. at 688.
Even though the compactness requirement, in some instances, may yield to other
considerations, such noncompactness must be justified. In those cases, where a level of
noncompactness is incorporated into the plan, the burden falls to the State to show the
necessity in drawing a noncompact district. Noncompactness will not necessarily
invalidate a districting plan. But, any constitutional “deviations must be undergirded by
‘valid considerations[.]’” 2012 Districting, 436 Md. at 178.
With respect to compactness, the judiciary’s role is not “to determine whether a
more compact district could have been drawn”; our function is to “to determine whether
the principles underlying the requirement of compactness of territory have been considered
and properly applied considering all relevant circumstances.” 1982 Districting, 299 Md.
39at 680–81 (citations omitted). But, if the Court cannot inspect the State’s rationale behind
deviations from compactness for other constitutional requirements, we cannot be said to
have considered all relevant circumstances. Turning a blind eye to what this Court is
constitutionally mandated to review grants the General Assembly a license for
“[i]ndiscriminate districting”: “little more than an open invitation to partisan
gerrymandering.” 2012 Districting, 436 Md. at 178 (quoting Reynolds v. Sims, 377 U.S.
533, 578–79 (1964)).
This is not to say that every district must achieve perfect compactness—the ideal of
which, “in geometric terms, is a circle.” 1982 Districting, 299 Md. at 676. Still, if a
petitioner produces compelling evidence of noncompactness, as here, the State must, by
“sufficient evidence,” justify which other constitutional or federal requirements dictate that
outcome.
As this Court did in 1982 on the principle of compactness, now is the time to look
to how our sister states have defined the contours of “extreme partisan gerrymandering”24
and forge a judicial standard by which to address it in Maryland. For example, as the
Supreme Court of Ohio put it:
Gerrymandering is the antithetical perversion of representative
democracy. It is an abuse of power—by whichever political party has control
to draw geographic boundaries for elected state and congressional offices and
engages in that practice—that strategically exaggerates the power of voters
who tend to support the favored party while diminishing the power of voters
who tend to support the disfavored party. Its singular allure is that it locks
24
As defined in Black’s Law Dictionary, it is “[t]he practice of dividing a geographical
area into electoral districts, often of highly irregular shape, to give one political party an
unfair advantage by diluting the opposition’s voting strength.” Gerrymandering, Black’s
Law Dictionary 830 (11th ed. 2019).
40
in the controlling party’s political power while locking out any other party or
executive office from serving as a check and balance to power.
Adams v. Dewine, __ N.E.3d__, __ (Ohio 2022), 2022 WL 129092 at *1. Or, the Supreme
Court of North Carolina, when it said that a partisan gerrymander
deprives a voter of his or her fundamental right to substantially equal voting
power. This fundamental right encompasses the opportunity to aggregate
one’s vote with likeminded citizens to elect a governing majority of elected
officials who reflect those citizens’ views. When on the basis of partisanship
the General Assembly enacts a districting plan that diminishes or dilutes a
voter’s opportunity to aggregate with likeminded voters to elect a governing
majority—that is, when a districting plan systematically makes it harder for
one group of voters to elect a governing majority than another group of voters
of equal size—the General Assembly infringes upon that voter’s fundamental
right to vote.
Harper v. Hall, 868 S.E.2d 499, 552 (N.C. 2022).
Inherent in any definition this Court could craft is the notion that a severe lack of
compactness demonstrates that a districting plan is an extreme partisan gerrymander.
The Majority gives no weight to the various methods of measuring a district’s
compactness. See Maj. Slip Op. at 65. The Reock, Schwartzberg, and Polsby-Popper
tests,25 the Majority says, have not “previously figured prominently in this Court’s review
of a redistricting plan.” Id. This notwithstanding, in the Report of the Special Magistrate
(“2022 Report”), the Special Magistrate discussed each method and, in summarizing the
Petitioners’ challenges to certain districts, mentioned each respective score. See 2022
Report at 4–5, 19–23. In enforcing this Court’s interpretation of “compact in form”—that
25
Computer mapping programs used in districting contain algorithms to calculate these
scores. See “Maptitude includes like five different, six different—maybe even eight
different [compactness] measurements.” Benisek v. Lamone, 585 U.S. __ (2018), No. 17-
333, Joint Appendix, Vol. I, at 135 (deposition of Eric Hawkins).
41
districts constitute a “close union of territory”—I would consider various measures of
compactness as but one factor in the compactness analysis. To be clear, I do not believe
one test or a particular score establishes a dividing line between compact or noncompact
districts, but these test scores are helpful in evaluating the plan on a district-by-district
basis. For this reason, I reiterate each challenged district’s scores, infra.
C. District-by-District Analysis
The Petitioners deserve a district-by-district analysis that analyzes population
change, district demographics, and geographic considerations. Because the Special
Magistrate did not include any such analysis, I shall do so here.
1. The Special Magistrate’s Report
The following is the extent of the Special Magistrate’s consideration of Misc. No.
25, which focused largely on compactness:
The evidentiary hearing focused almost entirely on one aspect of
redistricting – that the districts be “compact.” It is clearly an important
element and, in some instances, may be dispositive because of its nexus to
gerrymandering. But it is not the only element, and historically has been
regarded as being subject to other considerations – predominantly equality
of population, the Federal Voting Rights Act and other supervening Federal
requirements, contiguity, and, although on its own not a Constitutional
consideration, trying to keep people in their home districts where they are
closer to the local needs and politics. Thus, in [2002 Districting, 370 Md. at
361] – the case in which the Court of Appeals drew the redistricting plan –
the Court acknowledged:
“that the redistricting process is a political exercise for
determination by the legislature and, therefore, that the
presumption of validity accorded districting plans applied with
equal force to the resolution of a compactness challenge [citing
1982 Districting, 299 Md. at 688]. Thus, we instructed, ‘the
function of the courts is limited to assessing whether the
principles underlying the compactness and other constitutional
42
requirements have been fairly considered and applied in view
of all relevant considerations, and not to insist that the most
geometrically compact district be drawn.”
There has been no unanswered assertion here that the LRAC Plan is
in violation of the equality of population requirement or the Voting Rights
Act. A comparison of the current plan with the one it replaces shows that an
attempt was made to keep voters in their current districts, with which they
are familiar, and to avoid crossing political or natural boundary lines except
when required to achieve or maintain population equality. Suggestions in
the petitions that political considerations played a role were all on
“information and belief” and were not supported by any compelling
evidence. Accordingly, the Special Magistrate recommends that Petition No.
25 be DENIED.
(Emphasis in original and footnote omitted).
I recognize that the Special Magistrate operated under difficult time constraints that
required abbreviated proceedings, due to the impending deadlines with the election
calendar for the 2022 Primary Election—an election already delayed by this Court’s
orders. See Maj. Slip Op. at 23–25. Additionally, the Special Magistrate was required to
hold hearings in and around the congressional redistricting case,26 which involved the
same attorneys from the State and counsel for Petitioners in the instant case.
Here, the Special Magistrate did not consider or articulate any meaningful analysis
of the challenged districts. An independent expert, similar to the experts employed by the
Special Master in 2002, would have helped the Court understand the data underlying the
plan before it. Instead, in the most general of terms, the Special Magistrate concluded that
the plan passed constitutional muster. The 2022 Report does not aid this Court acting with
26
See Kathryn Szeliga, et al. v. Linda Lamone, et al., C-02-CV-21-001816.
43
original jurisdiction. Thus, I will engage in a district-by-district review, beginning with a
description of each district. I will then turn to the data specific to each district.
2. Compactness Analysis of the Challenged Districts
a. Howard and Anne Arundel Counties
In the 2020 census, Howard County experienced the second largest population
increase in the State with a 15.8% population increase from the 2010 census. Howard
County’s total population is 332,317, setting the “ideal” number of Senate districts in the
County at 2.53. The population of Howard County has increased by almost 100,000
persons in the last two decades. In the 2000 census, Howard County’s population was
247,842, which then grew by 40,000 persons in the 2010 census, coming in at a total
population of 287,085.
In neighboring Anne Arundel County, the population is 588,261, increasing by 9.4%
from the 2010 census and setting the “ideal” number of Senate districts in the County at
4.46. In 2002, the population of Anne Arundel County was 489,656. At the time, Special
Master Robert L. Karwacki observed that Anne Arundel County had to share districts with
residents of other counties “because Anne Arundel [C]ounty ha[d] too much population for
four districts and not enough for five districts.” 2002 Districting, 370 Md. at 421. The
County’s population again rose in 2010 to 537,656.
The location of both Howard and Anne Arundel Counties in the center of the state
is optimal for attracting travelers and tourists, but presents a difficult scenario for districting
because of the pressures from the surrounding high-growth counties that need to share
44
population with another county. Therefore, both counties typically have the highest
number of boundary crossings of any county in the State; that is true with the adopted plan.
i. District 12
District 12 encompasses parts of Howard County and Anne Arundel County.
District 12 has a total adjusted population of 131,907, with 86,473 residents of Howard
County and 45,434 residents of Anne Arundel County. It is a long, noncompact district
that stretches from southcentral Howard County in the west and ending in Glen Burnie and
Marley Heights in Anne Arundel County in the east. District 12 divides the towns or
localities of Columbia, Elkridge, Linthicum, and Ferndale. This is an entirely new
configuration for District 12 because the 2012 Districting had a shared district between
Howard and Baltimore Counties and thus did not include any of Anne Arundel County.
45
District 12
The shape of District 12 resembles that of a hump-backed dragon. The legs and feet
of the dragon stretch ten miles down Governor Ritchie Highway (“Ritchie Highway”) in
Anne Arundel County from Brooklyn Park to Marley Heights and Freetown. Along this
stretch, the district narrows to only one-half mile wide (between Ritchie Highway, Md.
Route 2, and Arundel Expressway, Md. Route 10, at the head of the tributary of Furnace
Creek) before billowing out to the south to capture the Marley Heights and Freetown
neighborhoods down to the intersection of Mountain and Solley Roads. To the north of
the one-half-mile wide section, the district expands to encompass the west side of Furnace
Branch and Curtis Creek, including Thomas Point, and then intersects with and follows the
Baltimore City boundary adjoining Senate District 48 up to the Patapsco River, which
forms the northern boundary of Anne Arundel County.
46
The district then follows an irregularly-contoured swath to the west for
approximately twenty miles, crossing over I-295, I-95 and Md. Route 29 through many
suburban neighborhoods. The dragon’s humpback is a wider stretch of territory along the
I-95 corridor. The district broadens out to an almost seven-mile-wide area between the
Patapsco River at Ilchester to the commercial-industrial area along Coca-Cola Drive in
Hanover.
The district narrows again just east of the cloverleaf intersection of Columbia Pike,
Md. Route 29 and Clarksville Pike, where the district is only one-half-mile wide along
Bendix Road, to include the new building of the Circuit Court for Howard County. This
narrow intersection forms the neck of the dragon. Then, the dragon’s head flourishes out
in a broad fan shape to encompass several Columbia neighborhoods including Wilde Lake
and Harper’s Choice. I note that these meandering boundaries are the overall result of the
mapmaker’s pen and not attributable to Maryland’s odd-shaped geographical features, see
Maj. Slip Op. at 14, 18–19, except for the occasional alignment with Furnace Branch,
Curtis Creek, and the Patapsco River.
Based upon the narrowing and widening boundaries of this district and the long
linear stretch of suburban Maryland that it encompasses, there is no conceivable standard
under this Court’s districting jurisprudence by which District 12 is compact.
The Majority cites to the 2002 and 2012 configurations of District 12 as if legislative
districts from decade to decade are bound by stare decisis or the constitutional requirement
of compactness is subservient to the non-constitutional standard of “core retention”—
47
keeping voters in their same districts.27 In 2002, we made clear that the goal of core
retention, “may not, as we have seen, excuse a constitutional violation.” 2002 Districting,
370 Md. at 373. Moreover, we observed that core retention often conflicts “with the due
regard provision and, perhaps, the compactness requirement, in that it tends to perpetuate
the status quo. By incorporating this goal in a districting plan, subdivision crossings
already in existence will likely continue, or in the case of compactness, noncompactness
may be inevitable.” Id. at 374.
No registered voter challenged District 12 in 2002 or 2012 (in 2002 Districting, it
is only discussed in relation to county boundary crossings for Howard and Baltimore
counties). The Majority’s position that a noncompact district when challenged by
Petitioners in 2022 should survive due to the non-constitutional standard of core retention
is untenable.
The State’s best response at oral argument was that in the 2002 Districting, District
12 had “a very, very strange configuration” but was not altered by this Court when the plan
was adopted by Court order on June 21, 2002. Both the Majority and the State fail to
recognize the concepts articulated by Justice Kagan that I rely on throughout this opinion.
The nature of districting has changed through the application of highly sophisticated
computer mapping programs and voter microtargeting. To protect the rights of Maryland
27
The Special Magistrate also afforded the concept of core retention undue weight. See
2022 Report at 26. The Special Magistrate, in his analysis, asserts that the constitutional
requirement of compactness is “subject to other [non-constitutional] considerations”:
“trying to keep people in their home districts where they are closer to the local needs and
politics.” Id.48
voters, and here specifically the voters in District 12, this Court’s application of the
compactness standard must evolve closer to what we articulated in 1982 Districting.
“[C]ompact in form” must actually mean that a district encompasses a close union of
territory; we must adhere to that standard throughout the State.
Petitioners except to the Special Magistrate’s conclusion that District 12 is compact.
See Exceptions to the Report of the Special Magistrate, Misc. No. 25 (September Term,
2021) (“Misc. No. 25 Exceptions”), at 13–15. Petitioners introduced into evidence the
result of analyzing District 12 under widely used compactness metrics: “Reock (.138),
Polsby-Popper (.110), Inverse Schwartzberg (.332), and Convex Hull (.433).” Id. at 14.
These scores are but one consideration in the compactness analysis, but such low scores
support a finding that District 12 is not “compact in form,” as defined by this Court.
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 12 is compact. District 12 falls into the narrow category of
egregiously odd-shaped districts for which visual inspection alone constitutes proof that
the district violates Article III, § 4.
ii. District 33
District 33 is contained entirely within Anne Arundel County and has a total
adjusted population of 131,878. For the first time, three single-member subdistricts have
been created in District 33.
49
District 33
The entire district lacks compactness and the Delegate subdistricts 33A and 33C are
particularly irregular. While subdistrict 33B is compact, the other two subdistricts spin off
like a whirligig from the northern tip of District 33. For context, subdistrict 33B follows
the contours of the district from the 2012 Districting starting on the west side of Severna
Park and proceeding south through Crownsville and Crofton; it continues south of U.S.
Route 50 to capture a broad land area around Davidsonville.
The western whirligig from subdistrict 33B is the highly irregular subdistrict 33A
that straddles over Crain Highway twice to capture two residential areas near Waugh
Chapel Road; then heads north to encompass Gambrills, Piney Orchard, and Odenton; and
then skirts to the east of Fort George G. Meade. The outline of subdistrict 33A’s boundaries
resembles a miniature elephant, although the demographics favor a Democratic candidate
(48% Democratic registration) instead of a Republican (30% Republican registration).
50
The eastern whirligig from subdistrict 33B is the jagged pie-shaped subdistrict 33C,
which contains portions of the peninsula between the Severn and Magothy Rivers where
the Chesapeake Bay Bridge is located, although part of this area is shared with the
neighboring Delegate subdistrict 30A in an alignment that splits the communities of Arnold
and Severna Park. Subdistrict 33C starts at Sandy Point State Park and, to the south,
includes Whitehall and Saint Margarets. It also follows the north shore of the Magothy
River to include Cape St. Claire and the east side of Ritchie Highway in Arnold starting
north of Anne Arundel Community College (the community college campus is in the
adjoining District 30A). Proceeding north, it encounters District 31 at Cypress Creek
wherein subdistrict 33C then wedges itself through a one-mile stretch of Ritchie Highway
and zigzags to the opposite side of the highway. On the west side of Ritchie Highway,
subdistrict 33C travels as far north as Earleigh Heights, where it makes a small intersection
with subdistrict 33B along Benfield Boulevard. Of note, by following Cypress Creek along
the east side of Ritchie Highway, the district excludes a small “V”-shaped parcel of land
that contains the residence of an incumbent Republican Delegate, which will be discussed
infra.
The odd-shaped configurations of subdistricts 33A and 33C are not compact. The
boundaries of subdistrict 33A are entirely interior to the state so there is no justification for
the elephant-shaped outline due to Maryland’s odd geography. See Maj. Slip Op. at 14;
18–19. Even accounting for the necessary jagged outline of subdistrict 33C due to the
Severn and Magothy Rivers, the unusual intersections of Districts 30, 31 and 33 in this area
of Anne Arundel County belie the notion that the mapmakers were pursuing other
51
legitimate objectives than the constitutional requirement for compactness. As described
infra, the only rational explanation for the lack of compactness is the overt partisan
ramifications from the design of this district.
The adopted plan presents, for the first time in District 33, a division of three single-
member districts even though this Senate District totally encompasses county territory and
does not share a boundary crossing with an adjoining county. This creation of single-
member districts runs counter to the General Assembly’s historical approach to districting
in Maryland.
As described supra, prior to Baker v. Carr, and throughout most of Maryland’s
history, the district boundaries for Senate and House of Delegates districts were the county
boundaries. The number of Delegates per county ranged from two to six, and these
Delegates ran at-large within the county boundaries—i.e., in essence, every county was a
multi-member Delegate district.
After Baker v. Carr, the members of the General Assembly were intensely loyal to
the multi-member districts within the county boundaries. In fact, in the first Constitutional
Amendment ratified in 1969 to enact one person, one vote districting in Maryland, an
aversion to single-member districts was explicitly stated in this earlier version of Article
III, § 4 as ratified by the citizens in 1969:
Each legislative district shall consist of adjoining territory and shall
be compact in form. The ratio of number of Senators to population shall be
substantially the same in each legislative district; the ratio of the number of
Delegates to population shall be substantially the same in each legislative
district. Nothing herein shall be construed to require the election of only one
Delegate from each legislative district.
52
1969 Md. Laws, ch. 785, ratified November 3, 1970 (emphasis added).
Following this preference for multi-member Delegate districts, the policy used by
the General Assembly was almost uniformly as follows:
1. If a Senate district was entirely within a county’s boundaries, the three
Delegates ran at-large within the entire Senate district;
2. If a Senate district crossed over from one county into another, subdistricts
were considered to protect the voting rights of those voters in the county
with the smaller population; and/or
3. Subdistricts for the Delegates were also considered if necessary to
support the goals of the federal Voting Rights Act.28
This policy on the establishment of subdistricts for Delegates is cited by the
Majority as expressed during the January 18, 2022, testimony of Chairman Karl Aro in
response to a question about the LRAC approach to the creation of subdistricts:
[Chairman Aro] stated that the LRAC plan kept districts “pretty much where
they were” but, so as to give due regard to county boundaries, “if we had to
cross a line, and if at all possible,” a subdistrict was created to ensure that the
people in that area would not be “overwhelmed” in an at-large district.
Maj. Slip Op. at 35.
This policy was uniformly followed in Anne Arundel County prior to the 2002
Districting. For example, in the 1992 Districting, the plan respected Anne Arundel
County’s political boundary by placing four Senate districts entirely within the county and
containing only one crossover district where population was shared with Prince George’s
28
On the Eastern Shore, a majority minority district was created in the 1992 Districting for
District 37A that has been preserved in each subsequent districting since then.
53
County. In the four districts entirely within Anne Arundel County—Districts 30, 31, 32
and 33—the Delegates ran at-large in three-member Delegate districts.
The change in this uniform policy occurred in the 2002 Districting with District 30.
In response to a growing Republican presence by voter registration numbers in Anne
Arundel County, the Speaker of the House, Michael E. Busch, created for himself a
two-member Delegate subdistrict to surgically remove the Republicans and create a
Democratic preference within his subdistrict.29 The political design of that district was
successful and today retains its two Democrats as Delegates. District 33 was also made a
multi-member Delegate district for the first time with two Delegates representing
subdistrict 33A and a single-member district in 33B. In the 2012 districting, the
subdistricts were eliminated for District 33 and it returned to a three-member Delegate
district contained within one Senate district.
Now, in the adopted plan, this same approach of Delegate subdistricts when a
Senate District is totally within the county’s boundaries is being employed in District 33.
The Majority would accede to these manipulations of the line-drawing as an effort to
balance out competing political parties. Maj. Slip Op. at 71. “In any event, ‘an intentional
effort to district so as to create a balance between two primary partisan political parties
does not violate’ the federal constitution.’” Id. at 71–72 (quoting 1982 Districting, 299
Md. at 673–74).
29
See Senate Proceedings No. 6, Floor Debate on Senate Joint Resolution 2, Remarks by
Senator Edward R. Reilly, at 11:20.
54
The flexible standard pronounced by the Majority is outdated by the modern
districting process with highly sophisticated computer mapping programs and voter
microtargeting to ensure incumbent protection of candidates and to improve a partisan
political party’s performance. It is time for this Court to adopt a standard to apply for
extreme partisan gerrymandering and establish Maryland as an example that other states
can look to as they consider the legal consequences of districting.
Under the historical standard of only creating subdistricts where there are boundary
crossings, the burden shifts to the State to explain why single-member districts are
necessary when the Senate district is entirely within a county’s boundaries. Unfortunately,
the Court is deprived of the data that would show the rationale for this division of single-
member districts by the Majority’s overbroad interpretation of legislative privilege. See
supra, at 14–31.
Targeting of a Republican Delegate
Currently, District 33 is represented by two Republican Delegates and one
Democratic Delegate. Delegate Rachel Muñoz is one of the two Republican Delegates
who currently represents District 33. However, because of the adopted plan, Delegate
Muñoz’s neighborhood has been surgically drawn out of District 33 and is now a part of
neighboring District 31.
Delegate Muñoz resides in the Cypresspointe neighborhood in Severna Park, which
is a small residential neighborhood adjacent to Cypress Creek Road. The District 33
boundary line that trails the southern branch of Cypress Creek, perpendicular to Ritchie
Highway, falls just narrowly to the south of Delegate Muñoz’s neighborhood. The
55
boundary line, pictured below, harshly veers off Ritchie Highway into Cypress Creek, ticks
up to the north, and barely exorcises the Cypresspointe neighborhood from District 33.
In November 2022, just prior to the release of the LRAC draft maps, Governor
Lawrence J. Hogan, Jr. appointed Delegate Muñoz to fill a vacancy in District 33 created
by Delegate Michael Malone’s appointment to the Circuit Court for Anne Arundel County.
At oral argument, the Court questioned the timeline of Delegate Muñoz’s appointment in
comparison to the actual drawing of District 33’s boundary lines.
Counsel for the State could not answer the Court’s question but supplied a
supplemental response following oral argument, which identified that Governor Hogan
appointed Delegate Muñoz on November 4, 2021, and she was sworn in on November 8,
2021. The next month, the LRAC released the State’s plan to the public on December 20,
2021, after the appointment of Delegate Muñoz.
56
In this close-up image, Delegate Muñoz lives in the “V”-shaped portion formed by
Ritchie Highway and Cypress Creek. She is now separated by mere tenths of a mile from
the district she used to represent. Moreover, Cypresspointe is not a sprawling
neighborhood, making its impact on the total adjusted population of District 33—were it
to be included in District 33—exceedingly small.
In the floor debate, Senator Edward Reilly provided an overview of the attempts to
use the gerrymandering techniques of “packing” and “cracking” in District 33 in the
districting maps of 2002 and 2012. Senator Reilly described how District 33 is being
“cracked” in the adopted plan, particularly by the division of Severna Park which is being
strategically carved into 3 separate Senate districts for partisan advantage. See Senate
Proceedings No. 6, Floor Debate on Senate Joint Resolution 2, Remarks by Senator Edward
R. Reilly, at 12:35.
The State’s plan markedly alters the political make-up of District 33 in favor of
Democratic candidates. Petitioners’ exceptions state that the redrawing of District 33 has
resulted in an increase of registered Democratic voters from approximately 38% to 41%
and a decrease in registered Republican voters from approximately 38% to approximately
35%. Additionally, in thirteen of the twenty-three precincts or partial precincts taken out
of District 33, registered Republican voters outnumbered registered Democratic voters.
Further, in eleven of the thirteen precincts or partial precincts that moved into District 33,
registered Democratic voters outnumbered registered Republican voters.
The Majority responds to Petitioners’ challenge by again asserting the default
deference to the General Assembly in any partisan objective:
57
In any event, the issue is once again resolved by the fact that Maryland’s
Constitution assigns the drawing of maps to the political branches and not to
this Court. Accordingly, the fact that a plan “may have been formulated in
an attempt to . . . help or injure incumbents or political parties, or to achieve
other social or political objectives, will not affect its validity.” 2002
Districting, 370 Md. at 322; see also 2012 Districting, 436 Md. at 134
(stating that, within the constraints of State and federal law, “[t]he political
branches may pursue a wide variety of objectives, including . . . aiding
political allies or injuring political rivals”).
Maj. Slip Op. at 72–73 (alterations in original).
Again, I would ascribe the actions of the General Assembly to extreme partisan
gerrymandering. As explained above, the broad flexibility standard is no longer protecting
the citizens of Maryland and their ability to elect representatives of their own choosing,
particularly when districts are drawn with highly sophisticated computer mapping
programs and microtargeting based upon a Democratic Party voter performance index. See
supra, at 5, 19–20.
The Petitioners except to the Special Magistrate’s conclusion that District 33 is
compact. Misc. No. 25 Exceptions, at 16–20. Petitioners introduced into evidence the
result of analyzing District 33 under widely used compactness metrics: “Reock (.140),
Polsby-Popper (.140), Inverse Schwartzberg (.374), and Convex Hull (.568).” Id. at 17.
These scores are but one consideration in the compactness analysis, but such low scores
support a finding that District 33 is not “compact in form,” as defined by this Court.
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 33 is compact. Concluding that Petitioners have established
compelling evidence of this district’s noncompactness, I would require the State to provide
58
“sufficient evidence” that other Article III, § 4 criteria required the shape of the district as
drawn.
b. Prince George’s County
Under the demographic trends of recent decades, Prince George’s County became
a majority-minority county. However, recent history reflects that a lack of compactness in
the makeup of the County’s legislative districts has led to an underrepresentation of
minorities in the General Assembly. During the 2002 Districting, Special Master Robert
L. Karwacki noted that Prince George’s County had the second highest population growth
of any Maryland county in the 2000 census—from 729,268 persons in 1990 to 801,515 in
2000. At the time, Prince George’s County had the second highest percentage of Black
residents in the State and a total minority population percentage of 71.5%.
In 2010, Prince George’s County again saw an increase in population size to
863,420 persons. The County’s total minority population percentage increased to 78.7%.
In 2020, Prince George’s County’s population expanded from 2010 by 12%, now totaling
967,201 persons, with the County’s total minority population percentage increasing to
85.5%. Over the past twenty years, Prince George’s County has experienced an almost
15% increase in its minority population; however, this increase is not reflected in the design
of the County’s state legislative districts.
In 2002, the County Executive of Prince George’s County, Wayne F. Curry,30 filed
a petition in this Court challenging the validity of Governor Parris N. Glendening’s
Wayne K. Curry served as the Prince George’s County Executive from 1994 to 2002.
30
Wayne K. Curry, Md. State Archives,
59
districting plan. Mr. Curry’s petition contended that the plan “will dilute the voting
strength of [Blacks], Latinos, and other minority citizens in the State of Maryland generally
and in Prince George’s [County specifically]” in violation of state and federal law. Mr.
Curry’s petition explained that Prince George’s County is one of the two largest
jurisdictions in the State of Maryland and, collectively with Montgomery County, had a
minority population of more than 57%. Mr. Curry argued that Governor Glendening’s plan
intentionally sought to deny minority voters “an equal opportunity to participate in the
political process and to elect candidates of their choice.” Specifically, Mr. Curry’s petition
argued that the plan in Prince George’s County “pack[ed]” the Black population into only
four of the County’s eight Senate districts to “protect the reelection prospects of white
incumbents preferred by white voters.”
At Mr. Curry’s request, Dr. Richard H. Engstrom analyzed Prince George’s County
and prepared an expert report of his findings. Dr. Engstrom determined that “there is a
strong association between the racial majority within legislative districts in [Prince
George’s County] and the race of the representative or representatives serving those
districts.” Dr. Engstrom continued in observing that “[t]he opportunity for [Black voters]
to elect representatives of their choice in [Prince George’s County] legislative districts is
no doubt strongly dependent on being a majority of the potential electorate in those
districts.”
https://msa.maryland.gov/msa/mdmanual/36loc/pg/former/html/msa11645.html, archived
at https://perma.cc/3DFK-H9PQ. Term limits precluded Mr. Curry from running for
reelection in 2002. Mr. Curry died of lung cancer on July 2, 2014.
60
In comparing Mr. Curry’s proposed drawing of the legislative districts that he
submitted as part of his petition challenging Governor Glendening’s adopted plan, Dr.
Engstrom emphasized that Mr. Curry’s proposal “demonstrates that, consistent with
Maryland’s standards for compactness and respect for political subdivisions, more
reasonably compact majority-Black districts can be created in [Prince George’s County].”
Dr. Engstrom concluded that under Governor Glendening’s plan, “the fraction of senate
and house seats that will be tied to majority-Black (or majority-Hispanic) electorates is less
than the fraction of the population that is Black (or Hispanic).” While the Court ultimately
accepted only the due regard portion of Mr. Curry’s petition with regard to boundary
crossings, in hindsight, Mr. Curry’s argument and Dr. Engstrom’s findings that the voting
strength of minority citizens has been diluted in the State—specifically in Prince George’s
County—proved to be accurate.
The prognosis of minority underrepresentation offered in Mr. Curry’s petition and
the electoral analysis of his expert was prescient. In the 2002 election, with a 71.5%
minority population, the lack of noncompact districts led to only four of the eight Senate
districts in Prince George’s County electing minority Senators. The minority Senators
were Nathaniel Exum (District 24), Ulysses Currie (District 25), Gloria Lawlah (District
26), and Gwendolyn Britt (District 47). The non-minority Senators were John Giannetti,
Jr., (District 21), Paul G. Pinsky (District 22), Leo E. Green (District 23), and Thomas V.
“Mike” Miller (District 27).
In the challenges to the 2012 Districting, the underrepresentation of minorities was
again raised before this Court in the petition of Cynthia Houser. See Misc. No. 5,
61
(September Term, 2012). Ms. Houser alleged, in pertinent part, that: (1) “[d]istricts with
[Black] majorities are underpopulated” (as compared to the rural, Republican majority
districts that were overpopulated); (2) “Maryland discriminated against [the Black
population] by using multi-member districts to dilute [Black voters’] ability to elect
candidates of their choice”; and (3) “[Blacks] can constitute a compact minority group in
a significantly larger number of districts than under the current map[.]” Report of the
Special Master, 2012 Legislative Districting of the State (September Term, 2012) (“2012
Report”), at 64. The majority of Houser’s claims were brought under the Voting Rights
Act; this Court rejected those claims under the Gingles test. Thornburg v. Gingles, 478
U.S. 30, 50–51 (1986); see League of United Latin Am. Citizens v. Perry, 548 U.S. 399,
425–26 (2006) (denominating these factors as the “Gingles” factors, after the case in which
they were articulated).
However, the Houser petition also raised claims under the compactness and due
regard provisions, which the Special Master defined as “extremely skimpy regarding
alleged violations of Article III, § 4” and unsupported by the evidence presented. 2012
Report at 70. We upheld the Special Master’s determination that Houser failed to meet the
burden of proving these constitutional violations.
As a result, the lack of compactness in the Prince George’s County legislative
districts remained relatively unchanged, and the incumbents generally prevailed at the next
two gubernatorial elections of 2014 and 2018. Although the minority population had
increased to 78.7%, minority representation in the Senate delegation remained at only 50%.
In 2014, the minority Senators were Joanne C. Benson (District 24), Ulysses Currie
62
(District 25), C. Anthony Muse (District 26), and Victor Ramirez (District 47). The
non-minority Senators were James C. Rosapepe, (District 21), Paul G. Pinsky (District 22),
Douglass J.J. Peters (District 23), and Thomas V. “Mike” Miller (District 27).
In the gubernatorial election of 2018, the ratio of minority Senators remained the
same at 50%. The non-minority incumbents were all re-elected, and the minority Senators
elected in 2018 were Joanne C. Benson (District 24), Melony G. Griffith (District 25), Obie
Patterson (District 26), and Malcolm L. Augustine (District 47). Since 2018, two new
minority Senators have been added to the delegation. Ron L. Watson (District 23) was
appointed to replace Douglas J.J. Peters when he resigned on July 31, 2021, to become a
member of the Board of Regents, University of Maryland System. Michael A. Jackson
(District 27) was appointed on January 13, 2021, to fill the vacancy caused by the death of
Senate President Miller. While this has increased the percentage of minority Senators, with
the minority population from the 2022 census reaching 85.5%, the noncompactness of the
Prince George’s County districts still contribute to an underrepresentation of minorities
representing the voters of this county.
The Majority suggests that due regard for political subdivisions, namely
municipality boundaries, excuses some of the contours of the Prince George’s County
districts. See Maj. Slip Op. at 19. However, as I shall explore, municipal boundaries—
odd as they may be—do not coincide with the shape of district boundaries.
I will address the noncompactness of each of Prince George’s County’s legislative
districts individually.
63
i. District 21
District 21 encompasses a county boundary crossing that combines parts of Prince
George’s County with western Anne Arundel County. District 21 is focused around the
College Park area in the southwest, Laurel and Maryland City in the north, and a divided
Crofton in the southeast.
District 21
The composition of the district resembles that of a jagged-edged boomerang. The
southwestern arm of the boomerang encompasses the University of Maryland campus and
most of College Park. The boomerang’s arm then continues north, widening to cover
Hillandale, Calverton, and Beltsville. The boomerang’s center elbow falls right over West
Laurel and the southern part of Laurel. The boundary follows the Howard County line in
the north and then cuts east, crossing into Anne Arundel County, engulfing the Patuxent
Environmental Science Center, U.S. Army Fort George G. Meade, and the Tipton Airport.
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The arm in the southeast has two harsh points due to the carve out of the Crofton Country
Club and using Route 301 as its boundary line.
The odd-shaped configuration of District 21 is not compact. The boundaries of
District 21 are completely interior to the State, so there is no justification for the
jagged-edged boomerang outline due to Maryland’s unique geography. See Maj. Slip Op.
at 14, 18–19. Instead, it is designed to methodically and precisely carve out the
communities in Prince George’s County that have low Black voter populations and merge
them with low Black voter populations in Anne Arundel County. In College Park and West
Laurel, the Black population is less than 20%. In the same vein, the Black population is
less than 45% in Hillandale, Calverton and Beltsville. As the district approaches Anne
Arundel County, the Black population of Laurel is approximately 50%, but the other Anne
Arundel communities in District 21 have low Black populations. This section of the district
contains parts of Crofton, Gambrills, Maryland City, and Odenton. While these are
unincorporated places, the Department of Planning provides total population by race for
certain unincorporated places [footnote]. Crofton and Gambrills have less than 20% Black
population; Odenton has less than 30%; and Maryland City has less than 50%.
Here, the lack of compactness in the contours of District 21’s boundaries and the
methodical and precise separation of this district from the rest of Prince George’s County,
coupled with the boundary crossing into Anne Arundel County, creates a district that is
only 30% Black, and contributes to the historical pattern of the underrepresentation of
minorities in the state legislature. Petitioners except to the Special Magistrate’s conclusion
that District 21 is compact. Misc. No. 25 Exceptions, at 15–16. Petitioners introduced into
65
evidence the result of analyzing District 21 under widely used compactness metrics:
“Reock (.288), Polsby-Popper (.125), Inverse Schwartzberg (.354), and Convex Hull
(.504).” Id. at 15. These scores are but one consideration in the compactness analysis, but
such low scores support a finding that District 21 is not “compact in form,” as defined by
this Court.
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 21 is compact. Concluding that Petitioners have established
compelling evidence of this district’s noncompactness, I would require the State to provide
“sufficient evidence” that other Article III, § 4 criteria required the shape of the district as
drawn.
ii. District 22
District 22 is contained entirely within Prince George’s County. One Maryland
resident submitted written opposition to Senate Joint Resolution 2, which, in pertinent part,
compared District 22’s shape to the “Notre Dame Fighting Irish logo.”31 Letter from Brian
Griffiths to the Honorable Nancy King (January 14, 2022). I assume that Mr. Griffiths
meant a replication of the Notre Dame logo, but one drawn on an Etch-A-Sketch. Based
upon this representation, we agree that the design of District 22 resembles an inverse
Fighting Irish leprechaun.
31
Representative of the Fighting Irish’s “tenacious spirit . . . and [] determination[, t]he
leprechaun is recognized around the world today as the mascot of Notre Dame athletics
dating back to its design in the early 1960s.” Leprechaun, University of Notre Dame,
https://onmessage.nd.edu/athletics-branding/logos/leprechaun/, archived at
https://perma.cc/FG2K-SCZE.
66
District 22
The southern legs of the leprechaun branch out on either side of I-495 in a highly
asymmetrical pattern to carefully select certain residential subdivisions in the Glenarden
and Dodge Park municipalities. The district narrows to less than a mile wide at the
intersection of I-495, Annapolis Road, and Lanham-Severn Road (Md. Route 564), which
forms the waist of the leprechaun, but then widens to an almost 10-mile stretch forming
the body of the leprechaun. This section of the district then follows I-495 north and divides
the communities of Lanham and New Carrollton. The body of the leprechaun then extends
to the west to include Woodlawn, Greenbelt Park, and East Riverdale. The leprechaun’s
coattails flail out into District 24, encompassing Rolling View and Vista Raceway. Just
beyond East Riverdale the leprechaun’s fists take shape to cover Riverdale Park and
Hyattsville. The leprechaun’s more northern fist swirls and twirls in an odd, asymmetrical
configuration around the Mall at Prince George’s.
67
The defining characteristic of District 22 is that it methodically and precisely divides
each of the communities with a large Black population (Glenn Dale, Lanham and New
Carrollton have approximately 60% or greater Black populations) and offsets the minority
population with communities that have less than 40% Black populations, i.e., Riverdale
Park, East Riverdale, Hyattsville, and Berwyn Heights. It is without question that this
bizarre configuration of District 22 is not compact and was drawn specifically to exclude
minorities. Further, the boundaries of District 22 are wholly interior to the State, and,
therefore, there is no justification for the leprechaun-shaped outline due to Maryland’s
unique geography. See Maj. Slip Op. at 14, 18–19. The lack of compactness of these
carefully drawn boundaries reflects the mapmakers’ intent to separate the communities of
this district with low populations of Black residents from the rest of Prince George’s
County. This disregard for compactness results in a district that is only 44% Black and
contributes to the historical pattern of the underrepresentation of minorities in the state
legislature.
Petitioners except to the Special Magistrate’s conclusion that District 22 is compact.
Misc. No. 25 Exceptions, at 20–24. Petitioners introduced into evidence the result of
analyzing District 22 under widely used compactness metrics: “Reock (.448), Polsby-
Popper (.115), Inverse Schwartzberg (.340), and Convex Hull (.639).” Id. at 22. These
scores are but one consideration in the compactness analysis, but such low scores support
a finding that District 22 is not “compact in form,” as defined by this Court.
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 22 is compact. Concluding that Petitioners have established
68
compelling evidence of this district’s noncompactness, I would require the State to provide
“sufficient evidence” that other Article III, § 4 criteria required the shape of the district as
drawn.
iii. District 23
District 23 is contained entirely within Prince George’s County. District 23 is an
elongated, narrow strip that follows a large portion of the eastern boundary of Prince
George’s County. District 23 curves around and intersects with Districts 21, 22, 24, and
25 with intricately drawn cutouts along the district’s western boundary line.
District 23
The heart of this district is its southern section, which follows U.S. 301 from its
entry into Prince George’s County at the Anne Arundel County line for approximately 19
miles, through Bowie and Upper Marlboro, down to Rosaryville near the district’s
boundary with District 27. The southernmost section of District 23 encompasses
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Rosaryville, Duley, Croom, and Marlton. The district also tilts to the northwest for
approximately 10 miles from the U.S. 301 entry into Prince George’s County at the Anne
Arundel County line to include a large area of parkland (the Patuxent Research Refuge,
Longwood Park and National Capital Parks) and the unincorporated areas of Jericho Park
and Montpelier. Both Duckettsville and South Laurel are divided by the northern boundary
lines of District 23.
The boundaries of District 23 create an elongated strip approximately five to ten
miles wide for approximately 30 miles of Prince George’s County’s eastern boundary.
These boundaries are fully interior to the State, so there is no justification for this expansive
outline due to Maryland’s own geography. See Maj. Slip Op. at 14, 18–19. The
demographics of this district have changed significantly over the past decade. At one time,
the northern portion of the district had a majority white population, but many communities
that had less than 50% Black populations, such as Bowie, now contain predominantly
minority populations. Bowie went from 30% Black in 2002 to 48% in 2012 to 54% in
2020. In the southern part of this district, Rosaryville, Marlton, and Mitchellville are all
over 80% Black. The district is now 65% Black, so the rationale of preserving the racial
demographic through this extremely oblong district in prior districting cycles to protect
white incumbents, if it was ever justified, no longer exists to support the noncompact
configuration.
Petitioners except to the Special Magistrate’s conclusion that District 23 is compact.
Misc. No. 25 Exceptions, at 20–24. Petitioners introduced into evidence the result of
analyzing District 23 under widely used compactness metrics: “Reock (.236), Polsby-
70
Popper (.132), Inverse Schwartzberg (.363), and Convex Hull (.549).” Id. at 22. These
scores are but one consideration in the compactness analysis, but such low scores support
a finding that District 23 is not “compact in form,” as defined by this Court.
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 23 is compact. Concluding that Petitioners have established
compelling evidence of this district’s noncompactness, I would require the State to provide
“sufficient evidence” that other Article III, § 4 criteria required the shape of the district as
drawn.
iv. District 24
District 24 is contained entirely within Prince George’s County. The district is
nestled between Districts 22, 23, 25, and 47, with its southwestern boundary line bordering
the boundary of the District of Columbia.
71
District 24
The composition of District 24 bears a striking resemblance to that of a seahorse.
The seahorse’s head, making up the northern part of the district, lays over Hynesboro,
Seabrook, Glendale Heights, Homehurst, Hillmeade, High Bridge Estates, and Hillmeade
Manor. The towns or localities of New Carrollton, Westgate, Seabrook Acres, Glenn Dale,
Ducketsville, Springfield, and Collington are all divided by the boundary lines of the
seahorse’s head. Moving to the south of the seahorse’s head, District 24 swoops to the
west, encompassing Springdale and Lake Arbor.
The seahorse’s dorsal fin divides Woodmore and curves just to the west of the Six
Flags America amusement park. Both Dodge Park and Glenarden are divided in the
western portion of the seahorse’s keel. Its tail continues even further south, covering Seat
Pleasant and Coral Hills. The tail’s boundary line divides Capitol Heights, Marlow
Heights, and Suitland.
72
The common characteristic in District 24 is that all of the communities have over
50% Black populations. Moreover, the following significant number of communities have
over 90% Black populations: Capitol Heights, Coral Hills, Glenarden, Lake Arbor, Seat
Pleasant, Springdale, and Suitland.
Unlike Districts 22 and 23, District 24 is not located in the interior of the State.
Notably, the only portion of District 24’s boundary line that follows a clean line or edge is
the portion that shares its border with the District of Columbia. Accordingly, Maryland’s
own geography is no justification for District 24’s lack of compactness. This is a majority-
minority district that has 76% Black population for which there is no rationale for its
noncompact shape except for packing the population of the black communities and opening
up opportunities for white candidates in other parts of Prince George’s County.
Petitioners except to the Special Magistrate’s conclusion that District 24 is compact.
Misc. No. 25 Exceptions, at 20–24. Petitioners introduced into evidence the result of
analyzing District 24 under widely used compactness metrics: “Reock (.222),
Polsby-Popper (.083), Inverse Schwartzberg (.289), and Convex Hull (.571).” Id. at 22.
These scores are but one consideration in the compactness analysis, but such low scores
support a finding that District 24 is not “compact in form,” as defined by this Court.
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 24 is compact. Concluding that Petitioners have established
compelling evidence of this district’s noncompactness, I would require the State to provide
“sufficient evidence” that other Article III, § 4 criteria required the shape of the district as
drawn.
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v. District 47
District 47 is contained entirely within Prince George’s County. In the 2002
Districting, Baltimore City lost population and Prince George’s County gained sufficient
population to add an additional Senate District, thus the designation of District 47,
previously assigned to Baltimore City, was transferred to the new Prince George’s County
Senate District. District 47, as drawn, resembles the shape of the letter “G,” with its
western boundaries bordering Montgomery County and the District of Columbia, and its
interior eastern boundaries trailing a jagged, “G”-shape pattern through Prince George’s
County.
District 47: Delegate Subdistricts of 47A and 47B
The northern tip of the District 47 is north of the Washington Beltway (I-495) and
includes the Hillandale Forest neighborhood south of Hillandale. The district outline
follows the boundary with Montgomery County at times narrowing to a one-half mile wide
74
portion at Adelphi Road. It continues as a narrow strip along New Hampshire Avenue until
University Boulevard where it starts to expand to the east in an asymmetrical pattern. At
East-West Highway, an unusually-shaped appendage resembles someone raising their arm
to flex a muscle that circles around Northwestern High School campus and the Mall at
Prince George’s. This section following the Montgomery County boundary encompasses
portions of Adelphi, Langley Park, and Chillum.
The district forms an elbow at its westernmost tip at the intersection of Prince
George’s and Montgomery Counties with the boundary with the District of Columbia. It
then proceeds south adjoining the District of Columbia boundary, narrowing to less than
one mile at Queen’s Chapel Road, but then broadens out in two appendages that sweep out
to the east—one capturing Bladensburg and the second encompassing part of Landover.
In 2012, the Delegate subdistrict was created to form a majority-Hispanic district,
which as designed today is 68% Hispanic. The total district, depending upon which set of
data is correct, approaches 50% Hispanic. The unusual shape of the district raises the
question of whether a more compact configuration would actually increase the Hispanic
majority in this district.
Petitioners except to the Special Magistrate’s conclusion that District 47 is compact.
Misc. No. 25 Exceptions, at 20–24. Petitioners introduced into evidence the result of
analyzing District 47 under widely used compactness metrics: “Reock (.268), Polsby-
Popper (.127), Inverse Schwartzberg (.356), and Convex Hull (.473).” Id. at 22. These
scores are but one consideration in the compactness analysis, but such low scores support
a finding that District 47 is not “compact in form,” as defined by this Court.
75
I would sustain Petitioners’ exception and overrule the Special Magistrate’s
conclusion that District 47 is compact. Concluding that Petitioners have established
compelling evidence of this district’s noncompactness, I would require the State to provide
“sufficient evidence” that other Article III, § 4 criteria required the shape of the district as
drawn, and especially to provide data supporting that this district best defines an
opportunity for a Hispanic candidate’s electoral chances in Senate District 47.
c. Prince George’s County Districts are Noncompact, Causing the
Underrepresentation of Minorities in a County with 85% Minority Population
By synthesizing the data in Prince George’s County, as in the two charts below, we
get an overall picture of what is occurring in the Prince George’s County Senate districts.
But we do so with caution, because we do not know which demographic numbers are
correct—i.e., whether the correct numbers were given to the Special Magistrate in Exhibit
F or whether the correct numbers were given to the public, for review and scrutiny, on the
“Redistricting” page of the Department of Planning website. Nevertheless, we use the data
contained in Exhibit F, as that information is what the parties presented to the Court.
76
Four Traditionally Black Prince George’s County Senate Districts
District 2002 - Percentage 2012 - Percentage 2022 - Percentage
Black Population Black Population Black Population
District 24 91.17%[32] 85.25% 78.76%
District 25 81.48%[33] 85.80% 83.74%
District 26 81.24%[34] 78.72% 72.63%
District 47* 59.94%[35] 89.16% Subdistrict 47A
50.01%
Subdistrict 47B
23.44%
Hispanic Subdistrict 47A,
22.83% - Hispanic
39.86%
Subdistrict 47B Subdistrict 47B,
Hispanic[36] Hispanic
62.00% + 67.70%
32
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
24 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/Senate02_d24.pdf,
archived at https://perma.cc/9J89-P7FG.
33
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
25 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/senate02_d25.pdf,
archived at https://perma.cc/LV4G-A45B.
34
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
26 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/senate02_d26.pdf,
archived at https://perma.cc/EYP7-G96G.
35
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
47 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/Senate02_d47.pdf,
archived at https://perma.cc/GLH9-UTNV.
77
District 47 has historically contained a considerable percentage of Hispanic
population, unlike Districts 24, 25, and 26. Subdistrict 47B was created in the 2012
Districting as the first majority-Hispanic Delegate district in the State. See 2012
Districting, 436 Md. at 177. To accurately reflect the minority population in District 47, I
include those percentages as well.
36
The Department of Planning data for 2012 Districting provides no statistics concerning
the Hispanic population of District 47. This number is derived from a press release issued
by the Governor’s Office. See Governor O’Malley Introduces Proposed Legislative
Redistricting Map, January 11, 2012 (“Governor O’Malley Press Release”). (“For the first
time in Maryland’s history, [the Governor’s map] creates a single-member Hispanic district
in Prince George’s County, District 47B, which is over 62% Hispanic.”). In the 2012
Districting, the State offered the Governor O’Malley Press Release as State’s Exhibit 3.
78
Four Traditionally Non-Black Prince George’s County Senate Districts
District 2002 - Percentage 2012 - Percentage 2022 - Percentage
Black Black Black
District 21 31.87%[37] 29.65% 31.75%
District 22 46.21%[38] 51.48% 46.21%
District 23 45.28%[39] Subdistrict 23A 68.00%
54.71%
Subdistrict 23B
64.92%
District 27 39.33%[40] Subdistrict 27A Subdistrict 27A
57.42% 65.23%
Subdistrict 27B Subdistrict 27B
36.96% 37.73%
Subdistrict 27C Subdistrict 27C
13.74% 15.61%
From these charts, it is evident that, over the last two decades, the districts have
been designed around the protection of incumbents, particularly four white incumbents,
37
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
21 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/senate02_d21.pdf,
archived at https://perma.cc/567W-TDPM.
38
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
22 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/Senate02_d22.pdf,
archived at https://perma.cc/W7U9-EHEN.
39
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
23 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/senate02_d23.pdf,
archived at https://perma.cc/WBZ8-EYPN.
40
2000 Census Summary File One (SF1) – Maryland Population Characteristics District
27 Total, Md. Dep’t of Planning,
https://planning.maryland.gov/MSDC/Documents/redist/senate02/senate02_d27.pdf,
archived at https://perma.cc/SP2C-PTF8.
79
even though the Prince George’s County minority population has increased from 71.5% to
85.5%.
We will stop using the general term “noncompact” and instead use redistricting
terms to clarify what is going on here. Over the last two districting cycles, and currently
in this cycle, the Prince George’s County Black population has been and is “packed” into
four Senate districts. The other four districts are surgically designed to “crack” the Black
population in four of the incumbent white candidate districts. In addition, the two boundary
crossings in Prince George’s County are strategically designed to protect white
incumbents.
Not only are the Prince George’s County districts aligned in a manner that produces
an underrepresentation of minorities in the General Assembly, but the entire adopted plan
fails to provide proportionality for Maryland’s Black voting age population. In written
testimony submitted at the joint hearing held on January 18, 2022, before the Senate
Reapportionment and Redistricting Committee and the House Rules and Executive
Nominations Committee, Professor Nathaniel Persily testified that the State’s Black voting
age population is 31% but the adopted plan provides only 19% of Senate districts (9 of 47)
and 25% of House of Delegate districts (36 of 141) with a majority of black voting age
population. This pervasive underrepresentation of minorities in the adopted plan is, in part,
attributable to the lack of compactness in districts across the suburban Maryland
population. See 2022 Report, Appendix II, Final Report of the Maryland Citizen
Redistricting Commission, Addendum 2, Written testimony submitted by Professor
80
Nathaniel Persily regarding Senate Joint Resolution 3/House Joint Resolution 1 of the
Maryland General Assembly, January 18, 2022, at 5–6.
In sum, the lack of compactness in the Prince George’s County districts results in
the underrepresentation of minorities. Objectively, this constitutes the sort of “compelling
evidence” a petitioner must show to shift the burden to the State. Absent an adequate
response or justification for this noncompactness from the State, I would reject the plan.
D. Due Regard
“Due regard shall be given to natural boundaries and the boundaries of political
subdivisions.” Article III, § 4.
The political dynamic of modern districting in Maryland, up until this Court’s
decision in 2002, focused on the retention of legislative power in the hands of the state
legislators of Baltimore City. Just prior to the one person, one vote decision in Baker v.
Carr, Baltimore City represented fully 20 percent of the Senate with 6 of 29 Senators. In
the House of Delegates, Baltimore City was apportioned 6 Delegates for each of the 6
legislative districts for a total of 36 of 123 Delegates—almost 30% of the House
membership. With the county boundaries serving as the legislative districts of each county,
only Baltimore City was subdivided into legislative districts with all six lying entirely
within the city’s boundaries.
Under the 1972 constitutional amendment that established the modern
apportionment plan, Baltimore City had 11 Senate Districts again drawn entirely with the
city’s boundaries. A steep population decline has occurred in Baltimore City over the past
five decades, as shown in the chart below. Maryland’s political leaders sought to deflect
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the impact on legislative representation of this decline by establishing boundary crossings
into Baltimore County, especially in the 1992 Districting created by Governor William
Donald Schaefer, a former Mayor of Baltimore City.
Districting Population Senate Districts Within City Boundary
Boundaries Crossings
1972 905,759 11 11 0
1982 786,775 9 9 0
1992 736,014 10 5 5
2002 651,154 6 6 0
2012 620,961 6 5 1
2022 585,708 5 4 1
Baltimore City Districting, 1972 - 2022
In 1992, the Court issued a clear warning: the number of Baltimore City/Baltimore
County shared districts in that plan, which crossed the Baltimore City boundary, “came
‘perilously close to running afoul of’ the due regard provision.” 2002 Districting, 370 Md.
at 363 (quoting 1992 Districting, 331 Md. at 614). In 2002, Governor Glendenning ignored
the warning sent by this Court and instead proposed, and the General Assembly adopted, a
plan that again contained five districts with Baltimore City boundary crossings. This
provided Baltimore City with ten Senate districts either entirely or partially within the City
when the population count only justified six Senate districts. Upon reviewing challenges
to the plan, we observed that the plan’s shared districts constituted “an excessive number
of political subdivision crossings” and we redrew the correct apportionment of six Senate
districts entirely within the City’s boundaries. Id. at 368.
Thus, in 2002, the Court looked at the rationale behind county boundary crossings
and established a new standard on due regard. Due regard is no longer the most fluid
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consideration as once enunciated by this Court. In crafting a remedial districting plan of
our own, this Court eliminated all five of the Baltimore City/Baltimore County shared
districts. Id. at 374. The Court’s plan created two districts wholly within Baltimore County
and three districts contained within Baltimore City. Id. Reconstituting these districts
allocated “six fully self-contained districts” within Baltimore City, affording due regard to
Baltimore City’s political boundary. Id. at 375.
It is important to note that similar due regard factors were observed in 2002 for the
Senate districts in Montgomery County. The population count supported eight Senate
districts and all eight were drawn within the county boundary. See id. at 427. Yet the same
cannot be said as to the Court’s handling of boundary crossings in Prince George’s County.
Historically, the Court has approached Prince George’s County differently than other
populous political subdivisions. Here, the Majority upholds a districting plan that permits
three boundary crossings in Prince George’s County without justification for why these
three boundary crossings are necessary. In my description of District 21, which shares a
boundary crossing with Anne Arundel County, I question the overall effect of this
boundary crossing on the underrepresentation of minorities for Prince George’s County
voters.
Our 2002 and 2012 decisions should apply with equal force to Prince George’s
County districts. Prince George’s County, which is entitled to eight Senate districts, should
have seven districts entirely within the county boundary and only one district with a
boundary crossing. Yet, for reasons made clear above—namely incumbent protection to
the disadvantage of minority populations—Prince George’s County districts cross into
83
three other counties: Calvert, Charles, and Anne Arundel. In Baltimore City and
Montgomery County, this Court enforced Article III, § 4’s due regard requirement.
Finding no violation of the due regard provision here, the Majority doubles down on this
commitment to only respect those jurisdictions’ political boundaries.
1. Background of District 27
In 2002, Mr. Curry also challenged the constitutionality of District 27 and
subdistrict 27A. At the time, District 27 stretched across the Patuxent River and the
Mattawoman Creek, encompassing parts of four counties—Prince George’s County, Anne
Arundel County, Charles County and Calvert County. Due to its composition, Mr. Curry
contended that District 27 and subdistrict 27A failed to give due regard to natural
boundaries and boundaries of political subdivisions in violation of Article III, § 4 of the
Maryland Constitution.
In the Curry Petitioners’ Exceptions to the May 21, 2002 Report of the Special
Master, Mr. Curry maintained that Governor Glendening and the Governor’s Redistricting
Advisory Committee “had a single overarching goal – the protection of incumbents,
especially white Democratic incumbents – which they pursued zealously, even when it
conflicted with the law.” The Curry Petitioners’ Exceptions to the May 21, 2002 Report
of the Special Master, In the Matter of the 2002 Legislative Redistricting of the State of
Maryland, Maryland State Law Library, (“2002 Curry Exceptions”) at 5. “Perhaps the
most obvious legal violation within the area of the State affected by the Curry Plan is the
design of District 27, which is represented by Senate President [Miller,] a member of the
GRAC.” Id.
84
Mr. Curry continued:
Senator Miller’s new district combines enough heavily black communities in
southern Prince George’s County to make the district safely Democratic in
the general election, with enough white voters from three other counties –
Anne Arundel, Calvert, and Charles – to ensure that he cannot be effectively
challenged in the Democratic primary by a[ Black] candidate . . . . To
achieve this dual protection – against black Democratic challengers in the
September primary and against white Republican challengers in the
November general election – the district flouts the Maryland Constitution, in
two ways. First, it traverses two natural boundaries – the Patuxent River
(which defines Prince George’s County’s eastern border) and Mattawoman
Creek (which defines much of its southern border). Second, the district grabs
pieces of four counties – Prince George’s, Anne Arundel, Calvert (where the
incumbent Senator resides), and Charles.
2002 Curry Exceptions at 5–6 (Emphasis in original).
In identifying that District 27 encompassed parts of four counties, Mr. Curry
emphasized that Senate President Miller had recently moved his place of residence from
Clinton in Prince George’s County to Chesapeake Beach in Calvert County. Because the
new residence was outside the boundaries of the district that he represented, Senate
President Miller’s change in residence also grabbed the attention of local media outlets, as
he was hailed as a “longtime Democratic power in Prince George’s County[.]” See Daniel
LeDuc & Matthew Mosk, Miller Says Move Was Personal, Not Political, Wash. Post, Oct.
15, 2000, at M5 (“Miller Move”).
Notably, Senate President Miller’s new residence in Calvert County was actually in
District 29, not in District 27, i.e., the district that he represented, but Senate President
Miller commented at the time that
he’s maintaining his voting registration and driver’s license address at his old
home in Clinton, where his family has operated a store for years. ‘Not one
but two of my children live there. I own the house. All my mail is delivered
85
there,’ he said. ‘My family business is in Clinton. My law office is in
Clinton. I’m in Clinton every single day of my life.’
Id.
Recognizing this Court’s decision in Blount v. Boston, 351 Md. 360 (1998), where
we held that incumbent Senator Clarence W. Blount had not abandoned his original
domicile41 even though he had changed his primary place of abode, President Miller
described Clinton as where he “continues his political activities and legal career in Prince
George’s and now has a home in Calvert.” Miller Move, at M5.
In addition to identifying the peculiar location of Senate President Miller’s home
within District 27, Mr. Curry also drew attention to Senate President Miller’s actions in
relation to the 2002 Districting. “Although the State named Senator Miller on its initial
witness list, he never showed up to testify and defend the configuration of his district,
opting instead to make his views known by placing ex parte phone calls to two Members
of this Court.”42 2002 Curry Exceptions, at 6. In closing, Mr. Curry emphasized that “[b]y
41
The constitutional requirement of residency for the state legislature has been
controversial in recent decades. The residency provision of Article III, § 9 provides that
“[a] person is eligible to serve as a Senator or Delegate, who on the date of his election, (1)
is a citizen of the State of Maryland, (2) has resided therein for at least one year next
preceding that date, and (3) if the district in which he has been chosen to represent has been
established for at least six months prior to the date of the election, has resided in that district
for six months next preceding that date. . . .” (Emphasis added). The controversy has
focused on defining “resided” and, in Blount v. Boston, the analysis examined the different
meanings between “domicile” or “primary place of abode.” Maryland voters will have a
chance to clarify this requirement through a Constitutional Amendment on the ballot as
“Question 2” in November 2022 that establishes “primary place of abode” as the residency
standard. See 2021 Md. Laws, ch. 808.
42
While challenges to the 2002 Districting were pending in this Court, multiple judges of
this Court “received calls and letters about redistricting from six Democratic lawmakers:
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jumping the Patuxent to gobble up parts of four counties, with no legitimate justification,
District[] 27 and [subdistrict] 27A of the State’s Plan plainly violate the Maryland
Constitution.” Id. at 8.
Accepting this part of the Curry Petition in 2002 that it “consisted of four counties,
in the case of District 27, and crossed two natural boundaries, the Patuxent River and
Mattawoman Creek,” this Court held that the district violated the due regard standard.
Under the Court’s plan, the portion of Anne Arundel was removed from District 27 and the
remaining district crossed over three county boundaries: Prince George’s, Charles and
Calvert.
2. District 27 in this Plan
Today, while District 27 is similar to the district drawn by this Court in 2002, it
retains the contours from Clinton to Chesapeake Beach that are obviously a relic from
President Miller’s incumbency. The methodical and precise line-drawing to include
downtown Clinton impacts the character of this district as defined by its single-member
Delegate districts. Subdistrict 27A is 62% Black; Subdistrict 27B is 35% Black and
Subdistrict 27C is 13% Black.
[Sen. Mike] Miller [(Prince George’s)], [Sen. Ulysses] Currie [(Prince George’s)], Sen. Ida
G. Ruben (Montgomery), Sen. Robert R. Neall (Anne Arundel), Sen. Clarence W. Blount
(Baltimore) and Del. Ruth M. Kirk (Baltimore).” See Matthew Mosk, Md. Ethics Panel
Condemns Miller for Judicial Calls, Wash. Post, Aug. 17, 2002, at A1; A6.
87
District 27 Showing 3 Single-Member Delegate Districts
The Petitioners challenged the contours of District 27 in the adopted plan as
violating the requirements of Article III, § 4 that legislative districts consist of adjoining
territory and give due regard for natural boundaries and the boundaries of political
subdivisions. Petitioner presented evidence that District 27 still encompasses parts of three
counties—Prince George’s County, Charles County, and Calvert County—and in doing so
divides the towns or localities of Accokeek, Clinton, Rosaryville, Croom, Waldorf, and
Hughesville. Further, District 27 is bisected by a stretch of the Patuxent River that has no
bridge crossings. Pointing to the division of the southernmost portion of the peninsula that
forms Calvert County that is sliced off to join Senate District 29 in St. Mary’s County,
Petitioners raise the issue of vote dilution for Calvert County, which has nearly enough
residents for an entire Senate District (the county’s population increased 4.5% in the 2020
census; at 92,925 it sits at 0.71 Senate Districts).
88
At the evidentiary hearing before the Special Magistrate, Delegate Mark N. Fisher,
one of the Petitioners, testified about the adverse impact on the voters of Calvert County
by the design of this district. By stretching the Senate District into Prince George’s County,
where the voting history is overwhelmingly Democratic, the district is designed to relegate
only one resident legislator from Calvert County. To be clear, a majority of the voters in
this district reside in Calvert County (71,277), but as Delegate Fisher stated, the voter
performance in districts outside of Calvert County dilutes the effect of Calvert County
voters and subordinates them to voters in Prince George’s County. This is the clearest
example of the voter performance index impacting voters as explained by Delegate Fisher.
The configuration ensures that the Delegate from 27C will be from Calvert, but also ensures
that the Senator and the two member Delegates are noncompetitive seats that remain firmly
Democratic due to voter performance.
The Special Magistrate does not address any of the Petitioner’s challenge of District
27 on contiguity and due regard principles, nor does the 2022 Report review the testimony
of Delegate Fisher. Obviously, any impact of the Democratic Performance Index on the
design of District 27 is not included in the 2022 Report because this data was protected by
legislative privilege.
Petitioners have made a facial challenge that was not addressed in the 2022 Report.
Based upon the record before the Court, I would sustain Petitioners’ second exception
concerning contiguity and due regard challenges to District 27. Misc. No. 25 Exceptions,
at 29–34. Concluding that Petitioners have established compelling evidence of this
district’s lack of contiguity and due regard for natural and political boundaries, I would
89
require the State to provide “sufficient evidence” that other Article III, § 4 criteria required
the shape of the district as drawn.
E. Inconsistency of Demographic Data Prevents Public Understanding of the
Adopted Plan
In addition to the foregoing, there is a fundamental inconsistency between publicly-
available data maintained by the Maryland Department of Planning and data presented to
the Special Magistrate that prevents the public from understanding the adopted plan, much
less allow for adequate judicial review.
1. Noncompliance with Federal Requirements
The Majority accurately details various federal constitutional and statutory
provisions with which a districting plan must conform. See Maj. Slip. Op. at 8–10. In the
2012 Districting, we said in no uncertain terms that “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.” 2012 Districting, 436 Md. at 131 (citing Shaw v. Reno, 509 U.S. 630(1993)). Federal statute—Section 2 of the Voting Rights Act, 52 U.S.C. § 10301—
prohibits “[l]egislative apportionment plans that effectively disenfranchise or abridge the
right to vote of any citizen on account of ‘race or color.’” Id. at 132.
For reasons I shall explain, I have grave doubts that the plan proposed to the Court
and ratified by the Majority comports with these federal requirements.
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2. Sources of Discrepancy
The Maryland Department of Planning “is the repository of the 2021 congressional
and 2022 legislative districts as well as historical reapportionment and redistricting maps
and data.”43 As part of its role, the Department of Planning maintains interactive maps,
House and Senate Reports, and “Demographic Data Tables” prepared by the Maryland
State Data Center.44 The public can use these tools to view how a districting plan is drawn
and composed. See supra, n. 43.
Attached to the 2022 Report is “Exhibit F.” I note that, despite references to other
Exhibits attached to the 2022 Report, the Special Magistrate did not discuss—or even
mention—Exhibit F anywhere in the 2022 Report. Exhibit F is an untitled Excel
spreadsheet. For each House subdistrict, Exhibit F sets out, in pertinent part: (1) total
adjusted population; (2) numerical population deviation; (3) percentage population
deviation; (4) the percentage of each district’s Hispanic Origin population, based on
adjusted population numbers; (5) the percentage of each district’s White population, based
43
2022 Maryland Legislative Districts, Md. Dep’t of Planning,
https://planning.maryland.gov/Redistricting/Pages/2020/legiDist.aspx, archived at
https://perma.cc/VP2C-U86Q. In fact, the Department of Planning “is Maryland’s
designated state agency coordinator for the Census Redistricting Data Program with the
U.S. Census Bureau.” Id.
44
The Maryland State Data Center “monitors development trends, analyzes social,
economic and other characteristics and prepares population, housing, employment, labor
force, and income projections, which provide the baseline for planning for growth and
development in the State.” The Maryland State Data Center (SDC), Md. Dep’t of
Planning, Md. State Data Center,
https://planning.maryland.gov/MSDC/Pages/default.aspx, archived at
https://perma.cc/797G-N9L4.
91
on adjusted population numbers; (6) the percentage of each district’s Black population,
based on adjusted population numbers; (7) the percentage of each district’s Asian
population, based on adjusted population numbers; and (8) the percentage of each district’s
Other population, based on adjusted population numbers.45
As it pertains to this section, the Majority gives short shrift to any inconsistencies
in the data and argues that issues raised herein are of no consequence. It is grievously
wrong. First, the Majority suggests that, because the parties jointly stipulated to Exhibit F,
the Special Master was under no obligation to scrutinize its validity. See Maj. Slip Op. at
91. To the contrary—the volumes of raw data submitted in these cases warranted the
Special Magistrate to hire an independent, expert consultant to make sense of the
information presented. That would have assisted the Special Magistrate, whose role it was
to aid this Court. Regardless of the Special Magistrate’s conclusions, the Court assumes
the responsibility of independently analyzing evidence and reviewing the
recommendations of the Special Magistrate de novo. 2012 Districting, 436 Md. at 179.
Second, the Majority seeks to have their cake and eat it too. The Majority excuses
the Special Magistrate’s faults due to the “limited time available to him,” but affords the
members of the Court no leeway for the same reason. Maj. Slip Op. at 91–92. The oral
argument in these cases were a mere nine days after the Special Magistrate issued his 2022
Report, leaving little time for any member of the Court to scrutinize the data. If the Court
45
The columns in Exhibit F provide, from left to right: “District,” “Adj_Population,”
“Deviation,” “% Deviation,” “% Adj_Hispanic Origin,” “% Adj_NH_AP_Wht,” “%
Adj_NH_AP_Blk,” “% Adj_NH_AP_Asn,” and “% Adj_NH_AP_Oth.” I exclude
columns pertaining to voter registration and turnout.
92
discovers discrepancies during the work in preparing opinions, it is in the public’s best
interest for those questions to be posed in the opinion. Ultimately, the public that has the
right to know what data was used to prepare the districts, that the data made available to
the public is accurate, and that the resulting districts were drawn in a fair and equitable
manner for the upcoming elections of 2022, 2026, and 2030. In this opinion, I cannot offer
that assurance to Maryland’s citizens.
To be sure, following the Majority’s logic, this Court is unable to remedy
constitutional violations discovered in the plan because they are: (1) not raised by the
parties; and (2) discovered after written submissions and oral argument. The urgency of
these cases, principally imposed by an impending election, forces prompt attention. But to
cast aside issues of constitutional proportions on technical grounds does nothing to serve
the citizens of Maryland who entrust this Court with original jurisdiction to review
legislative districting plans.
Third, the Majority implies fault with the identifying columns used in the following
section. See Maj. Slip Op. at 92. What it fails to appreciate is that the information used
here is taken directly from that presented to the Special Magistrate. Any purported
“omissions” in the charts below occur because that information is not part of the record of
these cases. The data presented to the Special Magistrate does not include information
concerning individuals identifying as more than one race, see Maj. Slip Op. at 95, or
individuals identifying as “American Indian and Alaska Native Alone,” and “Native
Hawaiian and Other Pacific Islanders Alone.” See Maj. Slip Op. at 95 n. 85. The Majority
attempts to align the data in Exhibit F to data not presented to the Special Magistrate. In
93
doing so, the Majority makes the very point I do: the data offered to this Court is not the
complete set of data that exists, nor is it easy for the public to determine the true
demographics of the challenged districts. Put another way, the information presented to
the Court is incomplete and frustrates our ability to complete adequate judicial review. On
this alone, I would reject the plan.
Above all, at varying times throughout the duration of these cases, the publicly
available data has fluctuated an alarming amount. Different maps appear over time,
statistics produced in prior districting cycles are not existent using 2020 census
information, and there is no fixed date to expect the same to be accessible. It is an abysmal
failure. The lack of available information leaves the public uninformed as to the districting
plan in effect for the three gubernatorial elections over the next decade.
3. Inconsistent Data by District
A review of the challenged districts reveals that racial and ethnic data presented to
the Special Magistrate does not match that kept by the Maryland Department of Planning.
These inconsistencies undermine the validity of the plan; how can the public—or the
Special Magistrate tasked with reviewing the plan for constitutionality—be confident that
the districts are composed of the specified racial and ethnic groups if the existing data
varies up to several thousand persons per category? Even more perplexing is the fact that,
while the data is inconsistent with regard to White, Black, Asian, and Other populations,
there is little to no deviation at all with regard to the Hispanic Origin population. Could
reliable data be so precise as to one category, yet so far afield as to four others? The
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Majority tacitly approves of these discrepancies and permits this fundamentally
inconsistent data to provide the basis of approving the plan.
I will start with what does compute. The total adjusted population numbers
contained in Exhibit F, the Department of Planning interactive map, and “Legislative
Districts: Adjusted Population by Race and Hispanic Origin” Demographic Data Table46
match perfectly in a district-by-district comparison. However, the district-by-district racial
and ethnic breakdown in Exhibit F does not match that maintained by the Department of
Planning. Because of these inconsistencies there can be no confidence in how the districts
in the adopted plan are actually composed. The question is: which set of books is correct?
Due to these inconsistencies alone, and the inability of the public to adequately evaluate
reliable data showing the impact of these changes to their communities, I would reject the
adopted plan as fundamentally flawed and lacking adequate public transparency.
a. District 12
Subdistrict 12A has a total adjusted population of 86,473; Subdistrict 12B has a total
adjusted population of 45,434. Comparing the data in Exhibit F and materials maintained
by the Department of Planning, the following chart illustrates discrepancies in Subdistrict
12A.
46
Maryland 2022 Legislative Districts (SJR 2), Md. Dep’t of Planning,
https://planning.maryland.gov/Redistricting/Documents/2020data/Leg/Legislative_total_
population.pdf, archived at https://perma.cc/9NQP-68WA.
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Subdistrict 12A Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 51.51% 26.52% 8.85% 16.21% 1.61%
Department 46.75% 23.84% 8.85% 14.05% 0.68%
of Planning
Difference 4.76% 2.68% 0.00% 2.16% 0.93%
In Subdistrict 12A, the Department of Planning calculates the adjusted populations
to be: 40,425 (White); 20,615 (Black); 7,656 (Hispanic Origin); 12,147 (Asian); and 592
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 44,452 (White); 22,932
(Black); 7,652 (Hispanic Origin); 14,017 (Asian); and 1,392 (Other).
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 12B.
Subdistrict 12B Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 54.72% 28.19% 13.78% 5.55% 1.38%
Department 49.69% 25.38% 13.78% 4.51% 0.50%
of Planning
Difference 5.03% 2.81% 0.00% 1.04% 0.88%
In Subdistrict 12B, the Department of Planning calculates the adjusted populations
to be: 22,577 (White); 11,533 (Black); 6,260 (Hispanic Origin); 2,050 (Asian); and 227
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(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 24,861 (White); 12,807
(Black); 6,260 (Hispanic Origin); 2,521 (Asian); and 626 (Other).
b. District 21
District 21 has a total adjusted population of 133,497, which includes 15,633
residents of Anne Arundel County and 117,864 residents of Prince George’s County.
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in District 21.
District 21 Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 34.22% 31.75% 23.00% 12.74% 1.54%
Department 31.06% 29.71% 23.00% 11.28% 0.71%
of Planning
Difference 3.16% 2.04% 0.00% 1.46% 0.83%
In District 21, the Department of Planning calculates the adjusted populations to be:
41,466 (White); 39,657 (Black); 30,701 (Hispanic Origin); 15,065 (Asian); and 944
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 45,682 (White); 42,385
(Black); 30,704 (Hispanic Origin); 17,007 (Asian); and 2,055 (Other).
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c. District 22
District 22 has a total adjusted population of 136,541. Comparing the data in Exhibit
F and materials maintained by the Department of Planning, the following chart illustrates
discrepancies in District 22.
District 22 Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 15.54% 46.21% 32.67% 6.57% 1.51%
Department 13.47% 44.20% 32.67% 5.68% 0.67%
of Planning
Difference 2.07% 2.01% 0.00% 0.89% 0.84%
In District 22, the Department of Planning calculates the adjusted populations to be:
18,376 (White); 60,308 (Black); 44,584 (Hispanic Origin); 7,748 (Asian); and 912 (Other).
Multiplying the total adjusted population times the percentages attributable to each racial
and ethnic group in Exhibit F produces different results: 21,204 (White); 63,054 (Black);
44,578 (Hispanic Origin); 8,964 (Asian); and 2,060 (Other).
d. District 23
District 23 has a total adjusted population of 135,983. Comparing the data in Exhibit
F and materials maintained by the Department of Planning, the following chart illustrates
discrepancies in District 23.
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District 23 Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 20.66% 68.00% 8.72% 4.53% 1.43%
Department 17.83% 64.73% 8.72% 3.55% 0.63%
of Planning
Difference 2.83% 3.27% 0.00% 0.98% 0.80%
In District 23, the Department of Planning calculates the adjusted populations to be:
24,244 (White); 88,018 (Black); 11,856 (Hispanic Origin); 4,825 (Asian); and 851 (Other).
Multiplying the total adjusted population times the percentages attributable to each racial
and ethnic group in Exhibit F produces different results: 28,094 (White); 92,468 (Black);
11,857 (Hispanic Origin); 6,160 (Asian); and 1,944 (Other).
e. District 24
District 24 has a total adjusted population of 135,504. Comparing the data in Exhibit
F and materials maintained by the Department of Planning, the following chart illustrates
discrepancies in District 24.
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District 24 Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 6.77% 78.76% 12.54% 3.00% 1.23%
Department 5.16% 76.16% 12.54% 2.42% 0.51%
of Planning
Difference 1.61% 2.60% 0.00% 0.58% 0.72%
In District 24, the Department of Planning calculates the adjusted populations to be:
6,997 (White); 103,195 (Black); 16,986 (Hispanic Origin); 3,273 (Asian); and 691 (Other).
Multiplying the total adjusted population times the percentages attributable to each racial
and ethnic group in Exhibit F produces different results: 9,173 (White); 106,772 (Black);
16,992 (Hispanic Origin); 4,065 (Asian); and 1,666 (Other).
f. District 27
District 27 has a total adjusted population of 136,291, with 30,333 residents of
Charles County, 34,681 residents of Prince George’s County and 71,277 residents of
Calvert County. Subdistrict 27A has a total adjusted population of 45,471; subdistrict 27B
has a total adjusted population of 45,304; subdistrict 27C has a total adjusted population of
45,516.
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 27A.
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Subdistrict 27A Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 24.80% 65.23% 8.10% 3.62% 1.30%
Department 21.47% 61.58% 8.10% 2.69% 0.65%
of Planning
Difference 3.33% 3.65% 0.00% 0.93% 0.65%
In subdistrict 27A, the Department of Planning calculates the adjusted populations
to be: 9,761 (White); 27,999 (Black); 3,684 (Hispanic Origin); 1,224 (Asian); and 295
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 11,276 (White); 29,660
(Black); 3,683 (Hispanic Origin); 1,646 (Asian); and 591 (Other).
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 27B.
Subdistrict 27B Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 55.12% 37.73% 6.09% 3.17% 1.46%
Department 50.68% 35.07% 6.09% 1.92% 0.51%
of Planning
Difference 4.44% 2.66% 0.00% 1.25% 0.95%
In subdistrict 27B, the Department of Planning calculates the adjusted populations
to be: 22,961 (White); 15,886 (Black); 2,759 (Hispanic Origin); 869 (Asian); and 230
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(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 24,971 (White); 17,093
(Black); 2,759 (Hispanic Origin); 1,436 (Asian); and 661 (Other).
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 27C.
Subdistrict 27C Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 79.43% 15.61% 4.31% 2.98% 1.53%
Department 73.91% 13.46% 4.31% 1.60% 0.44%
of Planning
Difference 5.52% 2.15% 0.00% 1.38% 1.09%
In subdistrict 27C, the Department of Planning calculates the adjusted populations
to be: 33,642 (White); 6,126 (Black); 1,963 (Hispanic Origin); 728 (Asian); and 198
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 36,153 (White); 7,105
(Black); 1,961 (Hispanic Origin); 1,356 (Asian); and 696 (Other).
g. District 33
Subdistrict 33A has a total adjusted population of 42,189; subdistrict 33B has a total
adjusted population of 45,469; subdistrict 33C has a total adjusted population of 44,220.
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 33A.
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Subdistrict 33A Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 57.43% 29.17% 8.30% 8.59% 1.68%
Department 51.64% 26.17% 8.30% 6.29% 0.67%
of Planning
Difference 5.79% 3.00% 0.00% 2.30% 1.01%
In subdistrict 33A, the Department of Planning calculates the adjusted populations
to be: 21,786 (White); 11,041 (Black); 3,502 (Hispanic Origin); 2,654 (Asian); and 282
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 24,229 (White); 12,306
(Black); 3,501 (Hispanic Origin); 3,624 (Asian); and 708 (Other).
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 33B.
Subdistrict 33B Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 82.85% 8.29% 5.87% 5.36% 1.77%
Department 77.68% 6.83% 5.87% 3.45% 0.50%
of Planning
Difference 5.17% 1.46% 0.00% 1.91% 1.27%
In subdistrict 33B, the Department of Planning calculates the adjusted populations
to be: 35,320 (White); 3,105 (Black); 2,668 (Hispanic Origin); 1,567 (Asian); and 229
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(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 37,671 (White); 3,769
(Black); 2,669 (Hispanic Origin); 2,437 (Asian); and 804 (Other).
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 33C.
Subdistrict 33C Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 85.32% 6.10% 6.03% 4.94% 1.62%
Department 80.21% 4.76% 6.03% 3.12% 0.42%
of Planning
Difference 5.11% 1.34% 0.00% 1.82% 1.20%
In subdistrict 33C, the Department of Planning calculates the adjusted populations
to be: 35,469 (White); 2,105 (Black); 2,667 (Hispanic Origin); 1,380 (Asian); and 184
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 37,728 (White); 2,697
(Black); 2,666 (Hispanic Origin); 2,184 (Asian); and 716 (Other).
h. District 47
Subdistrict 47A has a total adjusted population of 91,043; subdistrict 47B has a total
adjusted population of 45,473. Comparing the data in Exhibit F and materials maintained
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by the Department of Planning, the following chart illustrates discrepancies in Subdistrict
47A.
Subdistrict 47A Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 8.51% 50.01% 39.86% 2.28% 1.29%
Department 7.03% 47.99% 39.86% 1.76% 0.57%
of Planning
Difference 1.48% 2.02% 0.00% 0.52% 0.72%
In subdistrict 47A, the Department of Planning calculates the adjusted populations
to be: 6,403 (White); 43,687 (Black); 36,292 (Hispanic Origin); 1,606 (Asian); and 515
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 7,747 (White); 45,530
(Black); 36,289 (Hispanic Origin); 2,075 (Asian); and 1,174 (Other).
Comparing the data in Exhibit F and materials maintained by the Department of
Planning, the following chart illustrates discrepancies in Subdistrict 47B.
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Subdistrict 47B Comparison
Percentage Percentage Percentage Percentage Percentage
of Total of Total of Total of Total of Total
Adjusted Adjusted Adjusted Adjusted Adjusted
Population: Population: Population: Population: Population:
White Black Hispanic Asian Other
Origin
Exhibit F 5.42% 23.44% 67.70% 3.61% 1.03%
Department 4.55% 22.30% 67.70% 3.27% 0.55%
of Planning
Difference 0.87% 1.14% 0.00% 0.34% 0.48%
In subdistrict 47B, the Department of Planning calculates the adjusted populations
to be: 2,069 (White); 10,141 (Black); 30,786 (Hispanic Origin); 1,485 (Asian); and 250
(Other). Multiplying the total adjusted population times the percentages attributable to
each racial and ethnic group in Exhibit F produces different results: 2,464 (White); 10,658
(Black); 30,785 (Hispanic Origin); 1,641 (Asian); and 468 (Other).
4. Unexplained Population Inconsistencies Cannot Support the Plan
Because of these inconsistencies, there can be no confidence in how these districts
are actually composed. Neither the Court nor the public can be assured that the districts in
the adopted plan pass muster when it comes to the federal districting requirements. I
would, therefore, reject the plan.
F. Other Challenges to the Plan47
In Misc. No. 27, Petitioner Seth E. Wilson challenges the plan on the basis that
District 2A, a two-member Delegate district, should be divided into two single-member
I agree with the disposition of Petitioner David Whitney’s challenge to the plan in Misc.
47
No. 24. See Maj. Slip Op. at 39. I also agree that the Misc. No. 26 Petitioners’ argument
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Delegate districts for a total of three single-member Delegate districts in District 2. In
discussing District 33, I provided a full explanation of the General Assembly’s policy
regarding single-member Delegate districts. Supra, at 52–55.
The ideal population size for a single-member Delegate district is 43,797, whereas
the ideal population size for a multi-member Delegate district with two Delegates is 87,594.
District 2A has a total adjusted population of 84,500, with 15,757 Frederick County
residents and 68,743 Washington County residents. Where a county boundary crossing
occurs with a substantial population compared to what is considered to be the “ideal”
population size for a single-member Delegate district, historically the policy has been to
create two single-member districts rather than a multi-member district with two delegates.
The Majority expresses an apparent preference stating “Mr. Wilson’s preference for
three single-member districts instead of one single-member district and one two-member
district might well be our preference as well if the task of drawing the districts were
assigned to this Court[,]” but that Mr. Wilson did not present compelling evidence that
District 2A, as drawn in the adopted plan, violates any federal or state constitutional
criteria. Maj. Slip Op. at 110.
I would grant Mr. Wilson’s petition. I question whether the Democratic
Performance Index is at play in District 2 because of the configuration. Based upon our
concerns over the Democratic Performance Index, I would require the State to provide
is correctly denied. The mixed use of single-member and multi-member districts is not
clearly unconstitutional under Article III, § 3 as it exists today.
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“sufficient evidence” that other Article III, § 4 criteria required the construction of District
2 as drawn.
CONCLUSION
As Senate President James once said, expecting the General Assembly to design a
“fair legislative apportionment [is] a task beyond the capacity of legislators.” Supra, at 9.
That is why is this Court is given original jurisdiction and a heightened responsibility to
protect Maryland’s voters. Even in an age before the sophistication of computer mapping
programs and voter microtargeting, Senate President James was correct.
The permanency of harms attendant to extreme partisan gerrymandering have
caused one former architect of a Maryland gerrymander to rethink how districting should
proceed. Former Governor Martin O’Malley, in a Boston College School of Law lecture,
advocated for the end of gerrymandering and partisan redistricting commissions. See
O’Malley Sees the Light on Redistricting, Balt. Sun., Feb. 13, 2017,
https://www.baltimoresun.com/opinion/editorial/bs-ed-omalley-redistricting-20170213-
story.html, archived at, https://perma.cc/9UCM-LSC2. Once the lone individual in the
State who “held that redistricting pen in [his] own Democratic hand,” Governor O’Malley
recognized the very point I make here: the districting process of this cycle and future
cycles—“combined with big data, geographic information systems, and microtargeting of
precinct by precinct voting trends”—progressively weakens the democratic institutions of
this State and country. Voters deserve fair districts and the opportunity to elect
representatives of their choice.
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The Attorney General, hiding behind the legislature’s assertion of legislative
privilege, offers little to rebut the apparent constitutional infirmities in the plan. And, for
the first time in our districting jurisprudence, a narrow Majority of this Court sustains the
General Assembly’s assertion of legislative privilege over the process used in determining
the boundaries for the state legislative districts. This undoubtedly obscures the once
transparent nature of this decennial exercise and grievously constrains this Court’s ability
to independently assess the constitutionality of this and future districting plans.
In the simplest of terms, Petitioners established “compelling evidence” that several
districts in the enacted plan are not “compact in form,” as required by Article III, § 4. I
would sustain certain of Petitioners’ exceptions, as outlined supra, and require the State to
elaborate on the constitutional and other criteria that caused each noncompact district’s
creation. Moreover, Petitioners established “compelling evidence” that District 27 lacks
due regard for the boundaries of political subdivisions. I would likewise require the State
to explain the constitutional and other criteria that offset the violations of compactness and
due regard in the specified districts, supra.
* * *
If, upon review of a challenged plan, this Court finds “constitutionally
impermissible” deviations, there is “but one choice: declare the plan unconstitutional and
void.” 2002 Districting, 370 Md. at 322. The Majority fails to do so.
I would rescind this Court’s April 13, 2022 Order and issue a new order with the
following effect: “Given the imminence of the election and the inadequate time to resolve
the factual disputes,” Purcell v. Gonzalez, 549 U.S. 1, 5–6 (2006) (per curiam), I would
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order that the 2022 General Election proceed under the adopted plan and that those districts
remain in effect for the term of four years. However, given the above, I would declare the
plan void and require the General Assembly to prepare a new legislative districting plan
for use in the elections of 2026 and 2030, subject to review under the original jurisdiction
of this Court.
Since 1783, this Court has displayed as its seal a design created by Annapolis
silversmith Thomas Sparrow. The primary symbols on this seal are the scales of justice
and a five-pointed star with a circle of light emanating from the star. The iconography of
our Court’s seal is straightforward and represents our judicial goals as Maryland’s court of
last resort. The scales of justice represent fairness and carefully balancing the judicial
review, weighing all sides of the matter before us. The star carries connotations of seeking
knowledge and truth while shining a light on the facts under consideration. Reviewing
these Petitions, on a matter of utmost importance to the preservation of democracy in
Maryland and protecting the public’s right to know, we failed in achieving those goals. In
this failure, we allow the light embodied by the shining star to be eclipsed by legislative
privilege and the scales of justice to be tipped unfairly in the 2022 districting of the State.
For the aforementioned reasons, I respectfully dissent.
Judge Biran and Judge Gould have authorized me to state that they join in this
Opinion.
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