The opinion
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 the Maryland Uniform Electronic Legal Materials decision and adoption of this opinion.
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-01-18 15:20-05:00
Gregory Hilton, 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,
479 Md. 575, 601-04 (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.
21
at 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.
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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.”
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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.”
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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).
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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
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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 Ci
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