In re 2012 Legislative Districting and the Permanence or Expedience of Judicial Review
Every ten years, after each national census, provisions in the Maryland Constitution (Art. III, § 5) require that the State’s 47 Legislative Districts be reviewed for reapportionment. Those same provisions require the Governor to submit to both houses of the State legislature, the Senate and the House of Delegates, a plan for the 47 Districts, making boundary changes to the District in response to population changes and as necessitated by and consistent with state and federal constitutional requirements. Failing the General Assembly’s adoption of its own plan, the Governor’s plan becomes law, and that became the case for Governor O’Malley’s plan in response to the 2010 census (“2012 Plan”), which became the law on February 24, 2012.
The reapportionment provisions of the Maryland Constitution also vest the Court of Appeals with original jurisdiction to review any registered voter’s constitutional challenge to the legislative redistricting plan (Art. III, § 5). On March 6, 2012, the Court of Appeals issued an order in Matter of 2012 Legislative Districting of the State, 429 Md. 301, 55 A.3d 713 (2012), setting forth procedures to accommodate such challenges and appointed retired Court of Appeals Judge Alan M. Wilner as the Court’s Special Master, to conduct any necessary hearings. Eventually, after hearings before the Special Master, the submission of his recommendations, the taking of exceptions thereto, and argument before the Court, the Court issued a one page order on November 9, 2012, rejecting all challenges to the 2012 Plan, with opinion to follow. The Court (Bell, C.J., ret.) issued that opinion (cited herein as “Slip Op.”) on December 10, 2013.
The challenge to the reconfiguration of Districts 10, 42 and 44, brought by State Senators Delores Kelley and James Brochin, and the Court’s reasons for disposing of it are of particular interest. Between the 2000 Census and 2010 Census, the adjusted population of Baltimore City declined from 651,154 to 624, 054. The adjusted population of Baltimore County, however, increased from 754,292 to 807,053. The State’s 2010 population was 5,772,231, meaning the idealized legislative district population was 122,813 (= 5,772,231/47) and warranting only 5.1 (= 624,054/122,813) legislative districts for Baltimore City, compared to the 6 configured after the 2000 Census. Slip Op. at 13.
Nevertheless, the 2012 Plan continued to provide Baltimore City with 6 districts, by allowing 5 districts with voter populations even less than the minimum permitted deviation from the ideal, geographically allocating the remaining voter population to a sixth district in Baltimore City (Subdistrict 44A), and extending that sixth district into Baltimore County (Subdistrict 44B), to achieve, population wise, a constitutionally acceptable district having a total voter population of 118,498. In so doing, the 2012 Plan staved off, for another decade anyhow, a long-term continuing decline in Baltimore City’s legislative representation.
As the challengers to the redistricting maneuver that preserved a sixth district for Baltimore City argued, however, and as the Court of Appeals acknowledged, the 2012 Plan only benefits Baltimore City, where five legislative districts could have been contained entirely within the City, instead of the Plan’s six with, significantly, five under-populated Baltimore City districts and the resulting greater representation given to the City. In particular, Baltimore City Districts 40, 41, 43, 45 and 46 have adjusted populations of 92,535, 91,959, 94,706, 88,740 and 94,955, respectively. Given that the safe-harbor lower bound for a constitutionally acceptable district in Maryland is 116,673 (= .95 X 122,813), redistricting in Baltimore City is vulnerable to federal constitutional challenge as substantially violating the Fourteenth Amendment’s one person, one vote limitation.
In addition, because District 44 combines geographic regions in both Baltimore City and Baltimore County, combining not just adjacent regions on a political boundary but also adjacent regions on a boundary between a county and, effectively, a municipality, the redistricting was also vulnerable to challenge as in violation of the “due regard” limitation in Maryland’s Constitution (Art. III, § 4). According to that provision, when redistricting, “[d]ue regard shall be given to natural boundaries and the boundaries of political subdivisions.”
As noted, nevertheless, the Court of Appeals in Matter of 2012 Legislative Districting did not find any 2012 Plan redistricting, including the redistricting leading to District 44, constitutionally objectionable on either federal “one man, one vote” or state “due regard” grounds. In reaching its result, the Court dutifully noted that “[s]o long as the plan . . . does not violate State or Federal law, the political branches may pursue a wide variety of objects, including preserving community interests, promoting of regionalism, and aiding political allies or injuring political rivals.” Slip Op. at 10. The Court reaffirmed that the burden of showing constitutional invalidity is on the challenger to a plan and that “compelling evidence” is required for the challenger to make out a prima facie case of violation, which, once made, shifts the burden to the State to produce “sufficient evidence” to show that the relevant constitutional standard has been met. Slip Op. at 14.
This all sounds reasonable, so far as it goes, but what is not recognized here is that, logically and as applied in Matter of 2012 Legislative Districting, requiring that the evidence of a prima facie constitutional wrong be “compelling” biases the ultimate decision and begs the strength of the State’s case opposing any challenge. Compelling as against what? The strength of the objective that the State offers to justify the particular aspect of its redistricting plan that is challenged? If so, does not the Court’s two stage inquiry into the validity of some aspect of a plan, by erecting “compelling” as the threshold evidentiary standard, insidiously collapse that inquiry into a single stage? Indeed, the Special Master disposed of the “due regard” challenges as lacking compelling evidence tending to indicate an unnecessary incursion. Slip Op. at 24 (emphasis added).
Whether or not evidence is “compelling” cannot be assessed in a vacuum. The assessment requires reference to something, presumably and as applied in Matter of 2012 Legislative Districting, the justification that the State offers in support of its challenged action. And if the challenger’s evidence of violation must be “compelling,” does not that itself attribute to the State’s justification weight ab initio that it may not have? In short, with respect to “due regard,” should not the sufficiency of the required prima facie case be simply whether a political boundary has been disregarded, with whether that disregard was given “due” consideration left to the second stage of the inquiry? Likewise, with respect to vote dilution or enhancement, should not the required prima facie case be whether there is a significant variation in the weight of vote between or among electoral jurisdictions, as the Supreme Court has held? See and compare Davis v. Bandemer, 478 U.S. 109 (1986), with id. (Powell, J., dissenting).
Further, even accepting that the first level of inquiry includes assessing whether or not evidence “compellingly” shows a violation and properly imports some consideration of the State’s justification for its action, whether the evidence is perceived as compelling will also depend on the importance of the interest or objective that the State offers as its justification and the degree to which that interest or objective is actually implicated by the action challenged, which inevitably depends on the level of scrutiny given that justification itself, that is, whether the challenged action, for example, need be merely rationally related to achieving the State’s proffered interest or objective or whether the challenged action is found to be implicated, but only after scrutinization of how effective and necessary the challenged action is as a means to the proffered ends. In factually intense cases, such as redistricting cases, where there are a multitude of moving and, moreover, interdependent parts, a decision not to engage into a searching inquiry into the State’s proffered justification and, instead, merely require a rational relationship can readily doom the challenger’s case.
The Court of Appeals in Matter of 2012 Legislative Districting did little literally and specifically to articulate the applicable standard of review. It simply quoted (Slip Op. at 33) its earlier decision in Matter of Legislative Districting of State, 299 Md. 658, 688, 475 A.2d 428, 443 (1984):
Essentially, the districting process is a political exercise for determination by the legislature and not the judiciary; 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.
The rub, of course, is in knowing just what constitutes “fair” consideration and how the “relevant considerations” bear on what is fair. Judging from the Court’s reasoning in Matter of 2012 Legislative Districting, the standard of review is quite forgiving, potentially forsaking state and federal constitutional values, if not now, then in the future, by weakening the implications for their disregard by the legislative and executive.
The Court framed Senators Kelley and Brochin’s issue as whether the State had violated the “due regard” limitation by creating a district that crossed the boundary between Baltimore County and Baltimore City. That border crossing was justified, according to the Court, by the need to recognize 30,000 voters in Howard County who “would be left without a district,” were a border crossing district between Baltimore County and Baltimore City not effected. Slip Op. at 36. That there may have been alternative border crossings available with jurisdictions adjacent to Baltimore County, which jurisdictions went unmentioned, but were obviously Howard and Anne Arundel Counties, was, according to the Court, “not for this Court to determine.” Slip Op. at 37. It was sufficient to outweigh the “due regard” requirement, despite its constitutional grounds, that the border crossing served some other constitutional interest, in particular, assuring equality of voting power for the 30,000 Howard County voters, as required by the United States Constitution.
Even though the 2012 Plan significantly enhanced the weight of individual votes in Baltimore City, by allowing voter populations in the City’s districts well below the safe-harbor minimum of 116,673, thereby quite arguably violating the “one person, one vote” principle, the Court of Appeals did not require consideration of, much less, conduct a searching inquiry into, whether there were border-crossing alternatives to District 44 that would have avoided the apparent federal constitutional violation. Indeed, as noted, the Court expressly eschewed any such exercise. Further, it bolstered its rejection of this consideration by adding, based on no more than the State’s assertion at oral argument (as opposed to findings by the Special Master), that “the [District 44] crossing was created in order to preserve the community of interest of an African-American population that resides along the Baltimore City/Baltimore County boundary.” Slip Op. at 37. It nevertheless appears, however, that there was, in fact, an alternative. Combining Subdistrict 9B in Howard County with Subdistrict 44B in Baltimore County yields a District with a voter population of 120,430, within the harbor safe from a one-person, one-vote violation and with a minority majority. Although this would have left Subdistrict 9A with a population of only 85,707, that population would have been well within the neighborhood of several other under populated districts in the state, which such districts presumably exist for unavoidable and justifiable reasons, unlike, arguably, the under populated districts in Baltimore City.
The intended takeaway from this post is not the conclusion that the Court of Appeals erred in its disposition of Senators Kelley and Brochin’s challenge to the 2012 Plan. The subject matter of the issues raised here is too complex to address definitively in a blog post, and it may well be that there is no definitively correct result. The complexity and gravity of the competing interests involved do, however, warrant this consideration: when the fundamentality of the right to vote, which can implicate, with great complexity, a range of equal protection issues, including not just race but also the power of a vote itself, comes up against legislative prerogative and political processes, is it enough simply to observe that:
[S]o long as the plan does not contravene the constitutional criteria, that is 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.
Slip Op. at 9, quoting In re Legislative Districting of State, 370 Md. 312, 321-22, 805 A.2d 292, 297 (2002), or that:
So long as the plan [the Governor and General Assembly] devise does not violate State or Federal law, the political branches may pursue a wide variety of objectives, including preserving community interests, promoting of regionalism, and aiding political allies or injuring political rivals.
Slip Op. at 10, or that:
[W]hen political officials create a legislative apportionment design, politics are fundamental to the process and the result. . . .
The political branches, however, do not have the authority to contravene constitutional requirements.
Slip Op. at 28, or that:
The right to judicial review . . . is not dependent upon a potential constitutional violation being widely shared . . . .
Slip Op. at 30, or that:
The decision as to how the districts are drawn is quintessentially a political one, which requires judicial deference to be given to the political branches. . . .
. . . In the absence of evidence of invidious, impermissible discrimination, the choice of where the Baltimore County crossing would be located and what form that crossing would take was a political one, well within the authority of the political branches to make.
Before inquiring into and deciding whether there has been any constitutional violation, shouldn’t the first question be about the applicable standard of review of legislative or executive action in cases where fundamental rights and political prerogative are juxtaposed? And, whatever the decision as to the applicable standard, shouldn’t that standard and its justification be clearly articulated?
To be sure, there may be a certain political or, perhaps more accurately, politic advantage or value in the judiciary itself being able to finesse just what level of inquiry is being applied from one case to the next in matters involving judicial review of certain but, lest Marbury v. Madison be jettisoned, not all types of coordinate governmental branch action. Should that pragmatism be allowed to be indulged, however, where fundamental individual rights are involved? At a minimum, where fundamental rights are impacted, is there not a huge difference between judicial scrutiny of legislative or executive action with respect to the political processes themselves and judicial scrutiny of legislative or executive action when the subject of that action is some matter entrusted to the legislature or the executive, such as national security matters? Of what value and import is judicial review with respect to the protection of a value, if its character is not permanent but expedient?
 “[U]nder the Fourteenth Amendment, the prima facie standard for substantial equality across legislative districts is a population variance no greater than 10% between the most populous district and the least populous district.” Slip Op. at 35, citing Voinovich v. Quilter, 507 U.S. 146, 161 (1993). The standard is an outgrowth of the Supreme Court’s decision in Reynolds v. Sims, 377 U.S. 533 (1964), and its positing of the fundamental “one person, one vote” doctrine. Accordingly, with respect to that principle, prima facie, the largest constitutionally permissible variation is no more than 5% from the ideal district size, meaning, in Maryland and under the 2010 Census, a range of 116,673 to 128,953 voters within a legislative district. See also Maryland Constitution, Art. III, § 4 (“Each legislative district shall consist of adjoining territory, be compact in form, and of substantially equal population.”). Apart from the Fourteenth Amendment’s equal voting weight requirement, both the Fourteenth and Fifteenth Amendments prohibit intentional and invidious racial and ethnic discrimination. See Shaw v. Reno, 509 U.S. 630 (1993).
 See discussion, supra, note 1.
 Data for the 2012 Plan used in this post may be found at: http://planning.maryland.gov/redistricting/2010/legiDist.shtml.
 The total voter population of Baltimore City, including District 44B, is 503,289, which yields five districts of 100,658 voters, much closer to the lower constitutional bound of 116,672. To be sure, after the 2012 redistricting, other districts in the state were under populated comparably to the Baltimore City districts. E.g., Districts 13 (89,221 voters), 15 (87,737 voters), 18 (91,770 votes), 20 (91,243 voters), 24 (87,995 voters), 25 (87,798 voters), 26 (90,386 voters), and 39 (87,278 voters).
 See discussion, supra, at text and note 1.
 See discussion, supra, note 5.