# Appendix — DuBois v. City of College Park > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1155%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1983 - **Citation:** 459 U.S. 1146 ## Text 280 Md. 525, 375 A2d 1098 Renee NuBOIS et al. v. CITY OF COLLECE PARK et al. No. 135. Court of Appeals of Maryland. July 1, 1977. ELDRIDGE, Judge. This case vresents the ouestion of whether an action for declaratory judg- ment instituted by three registered voters of the City of College Park, seek- inp a declaration that the councilmanic districts of the citv were unconstitu- tionally annortioned, was pronerly dis- missed on the ground that the nlaintiffs were not ‘bona fide residents of College Park and therefore lacked standing to maintain the action. The action was brought in the Circuit Court for Prince George's County. It was alleged that the nlaintiffs, Renee Dubois and David Johnson, are students at the University of Marvland, residents of Col- lege Park, and registered to vote in citv elections pursuant to the citv charter. Later, Zacharv Kinnev, who was also alleged to be a student at the University of Mary- land, a resident of College "ark and a registered voter of the citv, was added as a narty plaintiff. The rlaintiffs claimed that the 1979 College Park census shows that the nresent councilmanic dis- tricts, established in 1967, are unequal- ly apnortioned and that the city, al- thourh having had an adecuate onnortunitv to so so, has failed to reannortion the districts. It was alleped that, as a result of this malapportionment, the votes of the nlaintiffs and those similar- ly situated are debased and they are de- nrived of the equal nrotection of the laws in violation of the Fourteenth Amendment to the Constitution of the United States. The action was brought by the plaintiffs in their own behalf and on behalf of all those University of Marvland students similarly situated. The basis of the plaintiffs' commlaint, as develoned at trial, is that the ronulation ficures un- on which the councilmanic districts are apportioned exclude students residing on the cammus of the University of Marvland with the result that the two “student” districts contain two to three times the nopulation of the “non-student" districts. The City of College Park, while con- tending that the districts are constitu- tionally apportioned on the basis of popu- lation figures including only bona fide residents of College Park, argued primari- ly that the plaintiffs did not have stand- ing to maintain the action and were not proner representatives of the class which they purported to renresent. Although the city did not attempt to controvert the al- Leget fon that the plaintiffs were duly re- gistered voters of the City of College Park, it did »resent evidence, over the nlaintiffs' obiections, that the plaintiffs actually resided in areas other than Col- lege Park and therefore should not have been allowed to register as voters of College Park. At the conclusion of the trial and submission of legal meroranda, the trial court dismissed the action for lack of standing. The court reasoned that, under the criteria set forth in Bainum v. Kalen, 272 Md. 490, 325 A.2d 392 (1974), none of the nlaintiffs were actuallv domiciled in College Park and therefore were not injur- ed by the alleged malannortionrent. Addi- tionallv, the court found that althouprh two of the nlaintiffs, FKinnev and Johnson, lived in districts which, "if their con- tentions nrevail, are underrepresented,” the third nlaintiff, Renee DuBois, lived in a district which was overrenresented. Therefore, the court found that even if Renee DuBois were domiciled in College Park, she should not be injured bv the apportionment scheme and would not have standing to challenge the city's dis- tricting. Finally, the court held that the suit could not he maintained as a class action because the »lainti*fs, as nonresidents, were not members of the class they nrurported to represent: those students of the University of Maryland who are residents of College Park and eligible to vote in city elections. The circuit court did not consider the merits of the case, i.e., whether the districts were malanvortioned. The plaintiffs took an anreal to the Court of Special Avpeals,and this Court issued a writ of certiorari to review the case prior to any decision by the Court of Svecial Anneals. The plaintiffs contend that the fact that they are dulv reristered to vote in city elections vursuant to the College Park charter is su*ficient to confer stand- ing. Thev contend that the city cannot challenge their status as qualified voters in this vroceeding bv introducing evidence that they are not residents of College Park when the city has, in accordance with the procedures set forth in the citv charter, registered them as voters. Be- cause standing in an action challenging the constitutionality of apportionment o* voting districts is premised unon the plaintiffs’ status as registered voters, and because the city did not deny, but in fact admitted, that the plaintiffs are re- gistered voters, the plaintiffs argue that the circuit court should not have gone be- hind the plaintiffs’ status as voters. It is argued that a court must find that, at this time, the plaintiffs have standing to challenge the constitutionalitv of the city's annortionment scheme. We agree. In Baker v. Carr, 369 U.S. 186, 204- 208, 32 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962), in determining whether voters have standing to challenge the constitutionality of apportionment of state legislative 7 districts, the Supreme Court stated that the question of standing denends unon whether the varty has “alleged such a ver- sonal stake in the outcome of the contro- versy as to assure that concrete adverse- ness which sharnens the presentation of issues upon which the Court so largely derends for illumination of difficult con- stitutional questions. Relying upon its prior cases, the Court held that “voters” who reside in allegedly malanpvortioned legislative districts sustain a “legally cognizable injury" and therefore have standing to maintain an action challenging the apnortionment scheme. In the instant case, the city does not deny that the plaintiffs are registered voters of the City of Collese Park. As far as the re- cord discloses, the citv never instituted nroceedings to have the nlaintiffs' nanes removed from the registration lists, and the order in this case does not. and indeed cannot, affect the status of the plaintiffs as eligible voters. The plaintiffs, therefore, are still register- ed "voters," eligible to nvarticinate in College Park elections and thus, in view of Baker v. Carr, supra, would annear to have standing to maintain this action. Moreover, the city charter vrovides procedures for the removal from the repis- tration lists of those voters who were either immpronrerly repistered or who sub- seauently become ineligible. Although the city has not affirmatively sought to have the plaintiffs adjudicated as ineligible to vote, it in essence argues that the plaintiffs are not eligible to vote be- cause they do not meet the residency re- quirement cf Section 14 of the Citv of College Park Charter. However, our prior cases indicate that where a statutory remedy is available to challenge the cuali- fications of voters on the registration lists, that statutory remedy is the ex- clusive method for challenging the qua’ i- fications of registered voters. The re- gistration lists, in the absence of alle- gations of fraud on the vart of election officials, are conclusive evidence of the qualifications of voters, and the qualifi- cations of voters may not be challenged in collateral proceedings. Lee v. Sec. of State *: Mahoney, 251 Md. 134, 246 A.2d 562 (1968); Moore v. Bay, 149 Md, 286, 292-295, 131 A. 459 (1925). In Lee v. Sec. of State & Mahoney, supra, the nlaintiff challenged the right of a candidate to run in a general election as an independent. The challenge was bas- ed unon the. contention that the Board of Supervisors of Elections had impronerly reovened the voter registration bool:s, during which time the candidate changed his party affiliation from Democrat to "decline." To be eligible to run as an 10 independent, the candidate must be repis- tered as a "decline." This Court apreed that the Board, because of a misinternre- tation of the election laws, had improner- ly reopened the registration books and al- lowed the candidate to change his party affiliation. However, the Court refused to declare the candidate ineligible de- spite the improper voter registration and affirmed the trial court's action dismiss- ing the voter's challenge. The Court not- ed that the election code set forth adminis- trative and judicial nrocedures by which the voter registration lists could be challenged and that the plaintiff had fail-— ed to follow these nrocedures. The Court held that the statutory nrocedures vro- vided the exclusive remedy for the correc- tion of the voter registration lists. Ad- ditionally, the plaintiff argued that the statutory remedy need not be followed since the purpose of the challenge was not to il correct the voter registration lists but rather to have the candidate declared ineligible to run as an independent. In rejecting this argument, the Court point- ed out that the eligibility of the candi- date to run as an indenendent denended ur- on his status as a registered "“indenendent" voter, and that this could be raised onlv pursuant to the statutory procedures, 251 Md. at 141, 246 A.2d 52. In Moore v. Bay, supra, two unsuccess- ful candidates in a runicinal election challenged the validicy of that election on the ground that some registered voters varticinating in the election did not pos- sess all of the qualifications recuired by the city charter and therefore were not legally oualified to vote. After stating that the validity of the election turned upon the question of the effect to be given to the repistration lists, this Court held that the election was valid because it was 12 the intent of the election laws "to make the final registration lists of voters conclusive evidence of those entitled to vote at the ensuing municinal election." Moore v. Bay, supra, 149 Md. at 296, 131 A, at 463. In reaching this conclusion, the Court noted that the local election law, which incorporated by reference con- sistent provisions of the state election laws, provided a commrehensive plan for the maintenance of registration lists. Thus, the local election law required that the city clerk enter on the registration lists only those applicants who satisfied the clerk by proof, under oath, that they met the qualifications of voters set forth in the city charter. The registration lists so comniled by the clerk were then to be reviewed by citv officials and ‘any person (who) should feel himself apprieved by the action of the clerk in repistering . the name of any person" could 13 obtain a hearing before the city council to contest the registration. An appeal from the determination of the city coun- cil could be taken to the circuit court. Additionally, the local law provided that the penalties prescribed bv the general election laws should anpvlv to ail munici- pal elections. Id at 291, 294, 131 A. 459. This Court concluded that these were sufficient vrocedures to insure the integ- rity of the registration lists, and that the election laws evidenced an intent that the registration lists, compiled according to these procedures, should be conclusive evidence of qualified voters of the city. The aualifications for voters of the City of College Parl, and the procedures for registering voters for citv elections are found in Sections 12 through 17(A) of of the city charter. These procedures are similar to those involved in Moore v. Bav, supra. Any person who is entitled to 14 register as a voter of the State of Mary- land under the general election laws and who "shall have his actual residence in the City of College Park, in the sense that he had no other residence elsewhere, for the period of ninety (99) days next nre- ceding a municipal election,” is entitled to register if he satisfies the repister- ing officer of these facts. Additionally, applicants who are registered to vote else- where in the State are required to file an affidavit affirming, inter alia, their in- tent to be members of the College Park community Section 14 of the charter. Per- sons registered pursuant to these provisions "shall be qualified voters of the City of College Park," Section 12 of the charter. Additionally, Section 15 of the College Park Charter provides that ‘(t)he proceed- ings for the registration of voters and the maintenance of registration lists .... shall conform as nearly as may be nrossible 15 to the proceedings for the registration of voters and the maintenance of registra- tion lists under the general election laws of this state." Under a provision of the state general election law, Maryland Code (1957, 1976 Repl. Vol.), Art. 33, Section 3-16, which is made applicable to College Park elections by virtue of Section 15 of the city charter, any voter may file with the proper election officials “objections to the registration of any person whom such voter has reason to believe is not eligible to vote." lNotice must be sent tothe challenged voter, and a hearing must be held on the challenge by the election officials, with the presumption being that the voter is properly regis- tered, Section 3-16(c), (ay. An appeal l. "(a) Who may file challenge or application for correction of 16 may be taken from any action by the of- ficials to the circuit court, Section 3- 21. Additionally, election officials are to remove from the registration lists the names of those voters whom they have reason to believe have moved from the election district after proper notice to the voter, Section 3-17. As in Moore v. Bay, supra, the pro- visions found in the College Park Charter, as well as those provisions of the gener- al lection laws made applicable to Col- lege Park elections, provide sufficient list; when and where filed. Any voter may file with the board or with the board of registrv objections to the registration of of any nerson whom such voter has reason to believe is not eligible to vote, or a request for the addi- tion of any person whose name 17 has been erroneously omitted or dropped from the registra- tion list of any such per- cinct registration list or a challenge of the right to vote of a person named on such list may be made by any qualified voter at the office of the Board on or before the Tuesday, sixteen weeks preceding any primary election. "(b) Manner of mal-ing applica- tion or challenge. Such appli- cations or challenges shali be made in the form rrovided bv subsection (e) of this section and the forms shall be provided by the board for that purpose. The voter shall state thereon, u der oath and of his own per- sonal knowledge, the reason for 18 — the application or challenge. Thereafter the voter so annly- ing or chalienging shall be reauired to anpear in person at the time of the hearing on the annlication or challenge as provided for in subsection (d) of this section and for wilful failure to so appear shall be subject to the penal- ties provided for in Section 24-27 of this article. "(c) Notice; voter may appear in person or by counsel. Per- sons whose right to register has been challenged and nersons whose names are alleged to have been erroneously omitted or dropped from the registration lists shall be given written notice, sent by mail, addressed to the voter at the last address 19 given on his registration form. Any voter so notified may ap- pear in person or by counsel. "(d) Hearing and action of board on applications and chal- lenges. The board of registry shall sit for the purpose of hearing applications for changes in such registration lists, or challenges of the right to vote on such lists. They shall meet on the Tuesday fourteen weeks before an elec- tion at such hours as the board may designate. If all such applications or challenges be not determined on that day, they shall sit during the same hours on succeeding days until all cases are heard and decided. If it is not possible to hear all such cases within two days, the board may appoint one or more boards of registry, each consisting of two members of opposite political parties, to aid in hearing such appli- cations or challenges at a rate of compensation fixed as provided in Section 2-6 of this article. At the request of either party, the board shall issue subpoenas to wit- nesses to appear at such hearings, who shall be sworn and examined. All cases shall be decided immediately after hearing. No voter as to whom an application or a challenge has been made shall be removed from the registration lists unless the application or chal- lenge is substantiated by 21 affirmative proof. In the ab- sence of such proof, the pre- sumption shall be that the voter as to whom the applica- tion or challenge was made is properly registered. If the board is satisfied that the person so challenged, omit- ted or dronpned from the re- gzistration lists has actually moved to another vrecinct and is presently residing within that other precinct, the board may transfer that person to the registration list of the precinct in which he presently resides. “(e) Form of challenge. Objections to the registra- tion of any person shall be made on a form prescribed safeguards to insure that only auali- fied voters appear on the registration lists, and to demonstrate the intent of the election laws that the regis- tration lists be deemed conclusive evidence that those who are registered are qualified voters. Moreover, a specific statutory procedure has been provided for correction of the regis- tration lists. Generally, where a special statutory remedy is provided, that remedv is usually deemed exclu- sive, and "the litigant must adopt that (remedy) and must not by-pass the administrative body or official, by pursuing other remedies." Schneider v. Pullen, 198 Md. 64, 68, 81 A2d 226, 228 (1951); accord, by the State Administrative Board of Election Laws." 23 Soley v. St. Comm'n on Fuman Rel., 277 Md. 521, 526, 356 A.2d 254 (1976); Agrarian, Inc. v. Zoning Inspector, 262 Md. 329, 332, 277 A.2d 591 (1971); Lee v. Sec. of State & Mahoney, supra. If it is believed that the plaintiffs are not qualified voters and should be re- moved from the voter registration lists, the procedures set forth in the election laws should be followed. The city cannot, by merely moving to dismiss for lack of standing in this proceeding, contest the fact that those registered according to the city charter are not qualified voters. See Lee v. Sec. of State & Mahoney, supra, 251 Md. at 141-142, 246 A.2d 562. We hold, therefore, that the plaintiffs, as regis- tered voters, having standing to maintain the present action. (8,9) The trial court also dismissed the action as to Renee DuBois on the 24 alternative ground that, as a resident of a councilmanic district which was “overrepresented,” she had sustained no injury and therefore lacked standing to maintain this action. However, in view of Swann v. Adams, 335 U.S. 440, 443, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), where the Sunreme Court held that resi- dents of a legislative district which received consitutional treatment under a redistricting plan had standing to maintain an appeal, Ms. DuBois would an- pear to have standing to maintain this action. Moreover, Art III, Section 5 of the Maryland Constitution, although not applicable to municipal legislative bodies, does reflect a State policy that any registered voter has a sufficient interest in the apnortionment of electoral districts to challenge the constitutional- ity of a reapportionment scheme. Article 25 III, Section 5, expressly authorizes “any registered voter" to petition this Court to review the ‘legislative dis- tricting plan for the General Assembly of Maryland. We therefore hold that Renee DuBois, as a registered voter of College Park, has a sufficient interest in the apportionment of that city's councilmanic districts to have standing to maintain this action. (10) Finally, the trial court dis- missed the class action on the ground that since the plaintiffs were not resi- dents of the City of College Park they were not proper representatives of the class of versons whom they purported to represent. That class is composed of »ersons who are inter alia, residents of College Park and qualified to vote in all city elections. It follows from the fact that because the plaintiffs are registered voters of the City of 26 College Park, they are, for voting pur- poses, residents of the City of College Park. Therefore, we hold that the plaintiffs are proper representatives of the class which they purport to repre- sent. Because we hold that the trial court erred in dismissing this action, both as to the plaintiffs individually and as to the class action, we will remand this case to the Circuit Court for Prince George's County for considera- tion of the merits. We wish to emphasize that our holding in this case is limit- ed to the question of whether the trial court, in this action, properly consid- ered evidence as to the plaintiffs' status as residents of the City of Col- lege Park where their status as regis- tered voters had not been challenged in a proper proceeding. We express no 27 opinion as to whether the plaintiffs are domiciled in College Park, and nothing contained herein should pre- judice the rights of any parties in any proceeding in which the plaintiffs' registration in properly challenged. JUDGMENT REVERSED AND CASE RE- MANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE'S COUIITY FOR FURTHER PROCELD- INGS NOT INCONSISTENT WITH THIS OPINION. APPELLEES TO PAY COSTS. 286 Md. 677, 410 A2d 577 Renee DuBOIS et al. CITY OF COLLEGE PARK et al. No. 139. Court of Appeals of Maryland. Jan. 28, 19380. ELDRIDGE, Judge. The largest campus of the Univer- sity of Marvland is located in the City of College Park in Prince George's County, Maryland. Pursuant to a court order to reapnortion its councilmanic districts, the City of College Parl adopted a revised anpvortionment plan that excluded from its population an- portionment base a large segment of students who lived in the University's dormitories. The issue before us is whether the circumstances of this case, violated the equal protection of the laws, and particularly the "one person one vote" principle of Baker v. Carr, 369 U.S. 136, 32 S.Ct. 691, 7 L.Ed.2d 663 (1962); Reynolds v. Sims, 377 U.S. 533, 34 S.Ct. 1362, 12 L.fd.2d 596 (1964), and their progeny. The City of College Park is divided into eight councilmanic districts, each 30 of which electsone councilman to the City Council. The College Park cam- pus of the University of “arvland is largely contained in parts of the third and fifth districts-often re- ferred to as the “student” district. All dormitories are within the third and fifth districts. On the other hand, some fraternity and sorority houses, in which students also re- side, are located in the second dis- trict. In connection with its apvortion- ment plan adopted in 1967, the City of College Park had to determine a population annortionment base, from which would be calculated the equal number of persons that would be in- cluded in each of its eight districts. The City arrived at its annortionment base by subtracting from its total 31 feceral census population, which includ- ed all students physically residing in the City of College Park, those students who physically resided in dormitory facil- ities at the University. + 1. Although all parties con- sistencly refer to the exclud- ed students as "on-campus' stu- dents and other students as “off-campus” students, it is not entirely clear what was meant by those terms. It appears that the phrase "on- campus" students refers to those students who live in dormitory facilities situat- ed on property located with- in the actual physical boundaries of the University. All "on-campus" students 32 Afier the 1970 federal census was conducted, the City established a reap- portionment committee. Although the reapportionment committee. Although the reapportionment committee developed several different reapportionment plans, none was adopted by the City, and it continued to use the apportionment plan of 1967. In October 1975, three students began the instant vroceedings by filing a class action in the Circuit Court for Prince George's County, alleging that the 1970 census showed the council- manic districts to be unequally apportion- ed. The plaintiffs claimed that as a result of this malanportionment, the votes of the plaintiff class were un- constitutionally diluted. The named plaintiffs, Renee DuBois, David Johnson and Zachary Kinney, were alleged to be 33 students of the City of College Park, and registered to vote in City elections. One of the plaintiffs lived in a dormi- tory in the fifth district, one lived in a fraternity house in the third district, and one lived in a sorority house in the second district. The class represented by the named plaintiffs was defined as those students at the Uni- versity of Maryland who were residents of the City of College Park and auali- fied to vote in all City elections. As develoned at trial, the basis of the plaintiffs' claim was that on- campus students were excluded from the apportionment figure which was used to determine the size of each councilmanic district of the City. As a result, according to the nlaintiffs, their in- dividual votes were diluted because the two councilmanic districts that include 34 the University of Maryland campus con- tained two or three times the population of the other six districts. According to the evidence produced at the trial, the total population of College Park, as determined by the 1970 federal census, was 26, 156, which in- cluded the students who lived within the University's physical boundaries within the third and fifth districts, as well as students who lived elsewhere within the City. Fowever, after internolating the 1979 census figures into the eight districts as they were constituted under the 1967 apportionment plan, the City calculated that its new apportionment base would only be 17,517. Consistent with the method that it employed with the 1967 plan, the new apportionment base was arrived at by excluding from the 1970 census total population the approximately 8,900 students, as deter- mined by numbers supplied bv University of Maryland officials, who resided in dormitories within the physical boundaries of the University.” The Mayor stated, 2. It is unclear whether this 8,000 student figure included students who resided in fra- ternity or sorority houses lo- cated in the third district, or whether is included students who resided in private residences in the third and fifth districts. It is clear that the 8,000 fig- ure did not embrace any students who resided in districts other than the third or fifth districts. Therefore, the 8,000 figure did not include these students who resided in the fraternity and sorority houses in the second district. There is, however, some indi- cation in the record that the 8,900 figure included only students who resided in the dormitories, which are locat- ed only in the third and fifth districts. Thus, there is an inference that students who lived in the fraternities and sororities in the third district and private residences in the third and fifth dis- tricts were not included in the 3,990 figure and that, therefore, these students were included by the City in the population base for the third and fifth districts. 37 would therefore be in the third and fifth districts. It is not completely clear whether the term "on-campus" also in- cludes those residing in frater- nities or sororities in the third district. The term "off- cammus" students appears to re- fer to students who live in pri- vate residences or apartments, presumably including private residences in the third and fifth districts, and not on property physically located within the University's boundaries. In addition, all students living outside of the third and fifth districts are considered ‘off- campus" students. Thus, a stu- dent living in one of the fra- ternity or sorority houses lo- cated in the second district 38 would be deemed an ‘off-camn- pus” student, just as if he lived in private housing. For the purposes of this opin- ion, we will accept what ap- pears to be the parties' definitions of these terms. Therefore, "on-campus" stu- dents will refer to students who live in University re- sidence facilities located within the boundaries cf the University, which places those students in the third or fifth district. Off-cam- pus” students will refer to students who live in all other districts within the City, including those who live in fraternities and sororities in the second district. 39 however, that the apportionment base of 17,517 included all students who resided in districts other than the third and fifth, and this fact was reiterated by counsel for the City at a hearing before the circuit court. Based unon the 17,517 population figure, a verfectly apportioned plan would have had 2,190 nersons in each district. All parties agreed, however, that if the students who resided within the physical limits of the University should have been included in the apn- portionment base, then the City's districts, even if changed to reflect 1970 population figures, would be mal- apportioned. If the 3.812 students living in University residence facilities in the third district and the 4,635 students living in University residences in the fixth district were added to 40 the population already included in these districts under the 1967 nlan, as ad- justed for the 1970 census, then the total population within these districts would be 5,843 and 6,996 resnectively. These figures are far in excess of the 2,190 persons who would be in each of the other districts. At the close of the trial, the circuit court concluded that none of the named plaintiffs was domiciled in College Park. Therefore, the court held that the named plaintiffs lacked stand- ing to maintain the action. In addi- tion, because the named plaintiffs were not deemed domiciliaries of the City, they were held to be outside of the class which they purnorted to represent. The circuit court dismissed the action for lack of standing. The plaintiffs appealed to the Court 4} of Special Appeals, and this Court is- sued a writ of certiorari prior to a decision by the intermediate appellate court. We held that the plaintiffs, as registered voters of the City of College Park, had standing to maintain a suit challenging the City's apportionment. DuBois v. City of College Part, 289 Md. 525, 375 A.2d 1098 (1977). Further, we stated that the City, by moving to dis- miss for lack of standing, could not collaterally challenge whether the plaintiffs were properly registered as voters. Instead, we held that any challenge by the City to the plaintiffs' status as registered voters must be made through the procedures prescribed by statute and the City charter for making such challenges. 289 Md. at 529, 533-534, 375 A.2d 1098. The case was remanded to the circuit Court. 42 After further arguments were held, the circuit court found that, in light of the 1970 census, the deviation be- tween the actual nopulation in each dis- trict and the number of persons who would constitute a properly apportioned district, was too large. The court, however, rejected the plaintiffs’ claim that all on-campus students should also be included in the City's apportionment base. The circuit court reasoned that, according to the princivles set forth by this Court in Bainum v. Kalen, 272 Md. 490, 325 A.2d 392 (1974), an on-car- pus student was presumed to be a domi- ciliary of his former place of residence. The court stated that a student could overcome this presumption by registering to vote in College Park, at which time the student must affirm by oath that he intended to remain a City domiciliary. 43 Therefore, the court held that eaual pro- tection principles did not require the inclusion of all on-campus students in the apportionment base because this would encompass transient nonresidents. The court further held that, because some of the students who resided within the University's boundaries had overcome the presumption of nonresidency by reg- is*ering to vote in the City, the City was required to include in its apportion- ment base any student in the third or fifth district who had registered to vote. Moreover, the court noted that this in- clusion of students who resided in the third and fifth districts, and who had registered to vote, would further in- crease the cxisting malapportionment in light of the 1970 census. The court: then ordered the City to submit a new ap- portionment plan, consistent with its opinion, correcting the existing 44 malapportionment. The City subsequently submitted a revised apportionment plan which, all parties agreed, conformed to the court's order. A final judgment approving the new plan was entered. The plaintiffs again appealed, and this Court again issued a writ of certiorari prior to a decision by the Court of Special Appeals. The primary issue on this apveal is whether the approved apnortionment plan, which in six districts included all students in the population base, and in two districts apparently included all off-campus students but only those on- campus students who had registered to vote, violates equal protection of the laws.” The plaintiffs contend that 3. The City also has raised two arguments in a motion to 45 dismiss this apveal. First, it asserts that the plaintiffs failed in the trial court to present sufficient evidence in support of their contention that the revised apportionment plan is un- constitutional. Second, the City argues that the plaintiffs did not exhaust their administrative remedies because they did not oppose the new vlan at a public hearing conducted as part of the City Council's adontion of the plan. Preliminarily, we note that this case is properly within this Court's jurisdiction, and there are no viola- tions of procedural requirements alleged that would warrant dismissal of the appeal. The two grounds urged by the City, even if meritorious, would not be grounds for dismissal. 46 Of course, an appellate court can affirm a decision of a trial court on any ground adequately shown by the record, even if it was not the ground relied on by the trial court, and even if it was not raised by the parties in the trial court. Robeson v. State, 285 Md. 498, 502, 403 A.2d 122a (1979). If the record were insufficient to show the invalidity of the apportionment plan, or if there were administrative remedies which should have been exhausted, these might be grounds for an af- firmance. | Nevertheless, in this case both contentions by the City must fall on their merits. The evidence at the first trial, coupled with the tyne of new plan mandated by the circuit 47 the circuit court erred in holding that the City only had to include those on- campus students who had registered to vote instead of the entire on-campus student nopulation. They argue that the inclusion court's order and the representations of the City’s counsel at the hearing on the new plan, were counsel suffi- client to present the equal protection issue raised by the plaintiffs. With respect to the plaintiffs’ asserted failure to exhaust their ad- ministrative remedies, the action of the City Council in adopting the re- vised plan was a legislative action and not a determination by an admin- istrative agency. We are not aware of any principle of law stating that one affected by a legislative enact- ment may not challenge the validity 48 of all off-campus students in the appor- tionment base whether or not they are registered to vote, while reauiring that on-campus students must register to vote in order to be included, creates an arbi- trary classification. The general principle governing leg- islative apportionment is that there “must be substantial ecuality of popula- tion among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other cit- izen." Peynolds v. Sims, supra, 377 U.S. at 579, 84 S.Ct. at 1390. See also St. Adm, Bd. of Elect. Laws v. Calvert, 272 Md. 659, 327 A.2d 290 (1974), cert. de- nied, 419 U.S. 1110, 95 S.Ct. 784, 42 4 L,Ed.2d 807 (1975). of that enactment unless he had been present and testified at the legislative hearings. 49 4. The “one person one vote” prin- ciple wasinitially apllied to state legislatures and congressional dis- tricts. Baker v. Carr, 369 U.S. 186, 682 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed. 2d 481 (1964); Reynolds v. Sims, 377 U.S. 533, 34 §.Ct. 1362, 12 L.Ed.2d 506 (1964). Since then, it has been extended to the election of county and municipal representatives where such govern- ments exercise substantial govern- mental powers. See, e.g., Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Hadley v. Junior College District, 397 U.S. 50 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Avery v. Midland County, 390 U.S. 474, 338 §.Ct. 1114, 20 L.Ed.2d 45 50 (1968); Montgomery County v. Garrott 243 Mf. 634, 222 A.2d 164 (1966). According to College Park's charter, Code of the City of College Park, Art. XI (1965), the City does or may exercise substantial governmental authority. Therefore, the apportion- ment of its councilmanic districts is clearly within the scope of the “one person one vote” principle. 51 Some differentiation among citizens with respect to the weight of their vote may be permissible it it related to "permissible purposes of legislative apportionment” or effected "a rational state policy," 377 U.S. at 565, 579, 84 S.Ct. 1362. MNever- theless, "if, even as a result of a clearly rational state policy .. . popula- tion is submerged as the controlling consideration in the anportionment of seats in the particular legis- lative body, then the right of all of the State's citizens to cast an effective and adequatley weighted vote would be unconstitutionally impaired." (Id. at 581, 34 S.Ct. at 1392.) “oreover, in deciding reapnortion- ment cases like the present one, class- ifications having the effect of diluting a verson’s right to vote are subject to 52 careful scrutiny. This was explained by the Sunreme Court in Reynolds v. Sims, supra, 377 U.S. at 561-562, 84 S.Ct. at 1381, as follows: “While the result of a court deci- sion in a state legislative appor- tionment controversy may be to re- quire the restructuring of the geo- graphical distribution of seats in a state legislature, the judicial focus must be concentrated upon ascertaining whether there has been any discrimination against certain of the State's citizens which con- stitutes an impermissible impairment of their constitutionally protected right to vote. Like Skinner v. Ok- lahoma, 316 U.S. 535, 62 S.Ct. 1110, &6 L.Ed. 1655, such a case ‘touches a sensitive and immortant area of human rights,' and "involves one of the basic civil rights of man,’ 53 presenting questions of alleged ‘invidious discriminations . against gourps or types of individ- uals inviolation of the constitu- tional guaranty of just and equal laws.’ 316 U.S., at 536, 541, 63 §.Ct., at 1113. Undoubtedly, the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preserva- tive of other basic civil and pol- tical rights, any alleged infringe- ment of the right of citizens to vote must be carefully and meticu- lously scrutinized." Abate v. Mundt, 403 U.S. 182, 185, 91 S. Ct. 1904, 1906-1907, 29 L.Ed.2d 399 (1971); Mramer v. Union School District, 395 U.S. 621, 626-630, 89 S.Ct. 18386, 1889-1891, 23 L.Ed. 2d 583 (1969); 0.C. 54 Taxpayers v. Ocean City, 230 Md. 585, 594, 375 A.2d 541 (1977). The City has attempted to justify its exclusion from the apportionment base of on-campus students who have not register- ed to vote by arguing that these students are transients and are not in fact res- idents of College Park. The City accor- dingly argues that to include these non- residents would dilute the weight of the votes of true residents of theCity who would be expected to have a greater in- terest in municipal affairs. In support of tis argument, the City points to language in Burns v. Richardson, 334 U.S. 73, 91-92, 86 S.Ct. 1236, 1296-1297, 16 L.Ed.2d 376 (1966), where the Suvreme Court stated: “We start with the pronosition that the Equal Protection Clause does not require the States to use total pop- ulation figures derived from the fed- 55 eral census as the standard by which this substantial population equiv- alency is to be measured. Although total population figures were in fact the basis of comparison in . (the case of Reynolds v. Sims) and most of the others decided that day, our discussion carefully left open the auestion what population was being referred to. At several points, we discussed substantial equivalence in terms of voter pop- ulation or citizen population, mak- ing no distinction between the acceptability of such a test and a test based on total population. Indeed, in "MCA, Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed. 2d 568 decided the same day, we treated an apportionment based upon United States citizen nopula- tion as presenting problems no diff- 56 erent from apportionments using a total population measure. Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to in- clude alients, transients, short- term or temporary residents, or per- sons denied the vote for conviction of crime, in the apportionment base by which their legislators are dis- tributed and against which comoli- ance with Equal Protection Clause is to be measured. The decision to include or exclude any such group involves choices about the nature of representation with which we have been shown no constitutionally founded reason to interfere. Unless a choice is one the Constitution forbids, cf., e. g., Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, the resulting appor- 57 tionment base offends no constitu- tional bar, and compliance with the rule established in Reynolds v. Sims is to be measured thereby.” It is clear, however, that the City could not invoke the theory that students are generally transients, in order to deny the right to vote to any student who in fact met the voting qualifications of the J City Charter. tee Evans v. Cornman, — as 5. The voting qualifications are set forth in the City's charter. Code of the City of College Park, Sec. 14 (1965.) They are: "Except as otherwise provided herein, any person possessed of all the qualifications that are necessary to entitle a person to exercise the right to register as a voter of the State of Maryland, under the 58 general election laws, shall be a citizen of the United States and at least eighteen (13) years of age on or before election day and shall have his actual residence in the City of College Parl., in the sense that he had no other residence elsewhere, for the period of ninety (90) days next preceding a municipal election and shall satisfy the Registering Officer of these facts. Any applicant to reg- ister who shall be registered as a voter elsewhere in the State of Maryland shall not be permitted to register unless there is filed with the Regis- trarion Officer of said city the apvlicant's following af- firmative affidavit under oath: 59 A. Do you hereby affirm your intent to be a member of the City of College Park community? B. Are you presently regis- tered to vote in a state ot- her than Maryland, a county other than Prince George's or any other municipality, and if so, will you cancel that registration as soon as practicable after this regis- tration is completed? C. Are you aware that when you register in the City of College Park, it will thence- forth be presumed that your residence is here for voting purposes and that you will have to overcome that pre- sumption should you later attempt to register in a 60 state or county or municipal- ity other than Maryland, Prince George's County the City of College Park, respec- tively, and do you accept this fact? The word 'res- idence’ for these purposes means the affiant's primary residence, the place where he will be registered to vote, where he presently resides, and plans to reside, except for short temporary absences, as for example, a vacation or hospitalization." 61 398 U.S. 419, 90 S.Ct. 1752, 26 L.Ed.2d 370 (1970); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965); Whately v. Clark, 482 F. 2d 1230 (5th Cir. 1973), cert. denied, 415 U.S. 934, 94 S.Ct. 1449, 39 L.Ed,2d 492 (1974). For example, the Supreme Court in Car- rington v. Rash, supra, 380 U.S. at 93- 96, 85 S.Ct. 775, held that Texas could not constitutionally deny military per- sonnel the right to vote where such mil- itary personnel had moved their residen- ce to Texas after their entrance into the military, if those persons otherwise met the state's voter qualification require- ments. Not only is it impermissible to deny the right to vote to students or service- men who otherwise meet voter qualifica- tions but a city may not dilute the votes persons in a particular district by a bold assertion that it is populated by a large class of purported transients such as students or servicement. Kirkpatrick v. Preisler, 394 U.S. 526, 534-535, 89 $.Ct. 1225, 1230-1231, 22 L.Ed. 2d 519 (1969); Davis v. Mann, 377 U.S. 678, 691, 64 S$.Ct. 1441, 1448, 12 L.Ed.2d 609 (1964). See Egan v. Hammond, 502 P. 2d S56 (Alaska 1972); In re Opinion of the Justices, 111 N.H. 146, 276 A.2d $25 (1971); Tp. of Franklin, etc. v. Board of Ed., etc,, 74 0.J. 345, 378 A.2d 218, 219 n. 2 (1977), cert. denied, 435 U.S. 950, 96 S.Ct. 1576, 55 L.Ed.2d 300 (19738); Seaman v. Fedourich, 16 N.Y¥.2d 94, 262 i.¥.S.2d 444, 209 0.2.2d 778, 784 (1965). See also Mahn v. Howell, 410 U.S. 315, 330-332, 93 S.Ct. 979, 988-989, “5 L.Ed. 2d 320 (1973); Groh v. Egan, 526 P. 2d 863, 369-374 (Alaska 1974). In Davis v. Mann, supra, 377 U.S. at 691, 34 S. Ct. at 1448, the Supreme 63 Court rejected the “appellants' argument that the un- derrepresentation ... (in three counties) is constitutionally jus- tifiable since it allegedly resulted in part from the fact that those areas contain large numbers of mil- itary and military-related personnel. Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitution- ally impermissible." Similarly, in Kirkpatrick v. Preisler, supra, the Supreme Court rejected Mis- souri's attempt to explain population variances in its Congressional district- ing because of large numbers of military personnel and college students present within the district. The Court stated (394 U.S, at 534-535, 89 S.Ct. at 1231): 64 "Missouri made no attempt to ascer- tain the number of eligible voters in each district and to apportion accordingly. At best it made hap- hazard adjustments to a scheme bas- ed on total population; overpop- ulation in the Eighth District was explained away by the presence in that district of a military base and a university; no attempt was made to account for the presence of universities in other districts or the disproportionate numbers of newly arrived and short-term res- idents in the City of St. Louis. Even as to the Eighth District, there is no indication that the ex- cess population allocated to that district correspons to the alleged extraordinary additional numbers of noneligible voters there." 65 The City of College Park has attemp- ted to justify its assertion that the students are not City residents by poin- ting to the low number of students who have registered to vote and by statistics supplied by the University indicating that only 900 of the 8,000 on-campus students originally came from Prince George's County. It is questionable whether these facts alone woula be su- fficient to validly support a conclusion that all students, except those who have registered to vote, are presently tran- sients. However, assuming arguendo that the City could reasonably reach this conclusion, other aspects of the appor- tionment plan render it unconstitutional. oOo. 6. Even if it could be assumed that voter registration provided sufficient indicia of residency, the use here of the diffe-ent apportionment bases of registered voters for one group of persons or districts, and total census popula- tion for a different group of per- sons or districts, might still vi- olate equal protection principles. See Town of Greenburgh v. Board of Supervisors, 53 Misc.2d 38, 277 N.¥.8.2d 885, 395-896 (1967). Al- though the use of registered voters as an apportionment base seems to be less favored than total or cit- izen population, see Burns v. Pich- ardson, 354 U.S. 73, 92-93, 86 S. Ct. 1236, 16 L.Ed.2d 376 (1966); Ellis v. Mayor and City Council of Baltimore, 352 F.2d 123 (4th Cir. 1965L; Preisler v. Mayor of City of St. Louis, 303 F. Supp. 1071 (E.D. Mo.1969), it was at least used uni- 67 In conformance with the circuit court's order to submit a new plan, the City of College Park only excluded stu- dents from its apportionment base in the third and fifth districts-the two "stu- dent" districts. The students who were excluded were those residing in dormitory facilities who had not registered to vote. The record demonstrates, however, that the City did not attempt either to deter- mine the number of or to exclude those students who had not registered to vote and who resided in the other six dis- tricts. For example, the record shows formly in all of the districts of the geographic unit in cases which have permitted it to be used. Burns v. Richardson, supra; Martin v. Venables, 401 F.Supp. 611 (D. Conn.1975); Reynolds v. Gallion ex that the second district contains sev- eral fraternity and sorority houses. Students residing in these houses were included in the apportionment base wheth- er or not they had registered to vote. In addition, there is an inference that the City did not exclude those students who lived in private residences or fra- ternity and sorority houses within the "student districts," i. e., the third and fifth districts. The concept of equal protection of the laws has traditionally required “the uniform treatment of persons standing in the same relation to the governmental ac- tion questioned or challenged." rel, Attorney General of Alabama, 308 £.Supp. 803 (M.D.Ala.1969). Reynolds v. Sims, supra, 377 U.S. at 565, 84 S.Ct. at 1383. Thus, once a constitutionally permissible apportion- ment base is chosen, equal protection would generally require that the appor- tionment base would be applied uniformly to all people and throughout all dis- tricts. According to the City's premise that students who have not registered to vote are not domiciliaries, it would seem to follow that all students who are not registered to vote are in the same class and should not be included in the apportionment base, or at least there should likewise be an exclusion of lar- ge groups such as those living in the fraternities and sororities in the sec- ond district. However, the City of College Park has differentiated among the students by not including in the apportionment base those non-voter 70 registered students in the third and fifth districts, but including in the base large groups of students in the fraternity and sorority houses in the second district regardless of whether they have registered to vote. Moreover, it ispossible that the City has not even treated large groups of third and fifth district students the same, for there is an inference in the record that the City only excluded unregistered dormitory residents but did not exclude any students living in the fraternities or sororities located in the third district. The City has offered no explanation for treating significant groups of stu- dents differently. In the circumstances of this case, permitting a large number of students who have not registered to vote to be included within the apportion- ment base while excluding others who are similarly situated, certainly does not 71 sure that only true domiciliaries will be counted. In sum, the apportionment plan sub-~ mitted by the City in accordance with the guidelines laid down by the circuit court, and later approved by the circuit court, contains classifications in the population base whcih cannot be justi- fied when "carefully and meticulously scrutinized" (Reynolds v. Sims, supra, 377 U.S. at 562, 84 S.Ct. 1362). It violates the Equal Protection Clause of the Fourteenth Amendment and Art. 24 of the Maryland Declaration of Rights. See Board v. Goodsell, 284 Md. 279, 293 n. 7, 396 A,2d 1033 (1979). JUDGMENT REVERSED AND CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY FOR FURTHER PROCEEDINGS NOT IN- CONSISTENT WITH THIS OPINION. APPELLEES TO PAY COSTS. 72 447 A2d 838 Renee DuBOIS et al. v. CITY OF COLLEGE PARK et al. No. 96. Court of Appeals of Maryland. July 19, 1982. 73 ELDRIDGE, Judge. This case, before us for the third time, is the culmination of a suit initially filed in October 1975 by three University of Mary- land students challenging the apportionment of councilmanic districts in the City of College Park, Maryland. The City of College Park is the site of the University of Maryland's principal campus. With a population of approximately 28 ,000 persons, + the City is divided into eight councilmanic districts, each of which elects a City Councilman. A large vortion of the third and fifth districts consists of the University of Maryland campus, and all of the University's student dormitories are located in those two districts. At the inception of this suit, the City had appor- tioned its voting districts by subtracting from its total federal census population those students who resided on the University campus . 74 That base was then divided equally into the eight councilmanic districts. In October 1975 three students, all registered voters of College Park, filed a class action in the Circuit Court for Prince George's County alleging that the appor- tionment scheme employed by the City vio- lated the Equal Protection Clause of the Fourteenth Amendment and the equal protec- tion principle embodied in Article 24 of the Maryland Declaration of Rights. The plaintiffs claimed that the exclusion of on-campus students from the apportionment base diluted their votes because the third and fifth districts contained two to three times the population of the other six dis- tricts. The circuit court dismissed the claim, concluding that the three plaintiffs had no standing to maintain the action because they were not domiciled in College Park and were not properly regitered to vote. 75 On appeal, in DuBois v. City of College Park, 280 Md. 525, 375 A.2d 1098 (1977) (DuBois I), this Court reversed, deciding that the plaintiffs’ status as registered voters of the City gave them standing to challenge the apportionment of the council- manic districts. We held that a collateral attack upon the plaintiffs’ status as regis- tered voters could not be made by raising the issue of standing in a reapportionment case, and that any challenge to the plain- tiffs’ voter status must be made through the procedures prescribed by statute and the City Charter for making such challenges. 280 Md. at 529, 533-534, 375 A.2d 1098. The case was remanded for a determination of the merits. Following the remand, the circuit court held that the councilmanic districts were unconstitutionally apportioned. The circuit court went on to approve a new apportionment plan which, in six districts, 76 was based upon total population and includ- ed all students in the apportionment base. However, with respect to the third and fifth councilmanic districts, the new plan inclu- ded in the population base all off-campus students and all on-campus students who had registered to vote. The new plan excluded from the base all on-campus students in the third and fifth districts who had not regis- tered to vote. This Court reviewed the constitutional- ity of the new apportionment plan in DuBois v. City of College Park, 286 Md. 677, 410 A2d 577 (1980) (DuBois II). Because the plan included all students from districts one, two, four, six, seven and eight in the appor- tionment base, whether they were registered to vote or not, while excluding on-campus students in districts three and five from the base unless they were reistered voters, the Court held that the plan violated the Equal Protection Clause of the Fourteenth 77 Amendment and Article 24 of the Maryland Declaration of Rights. 286 Md. at 691, 410 A.2d 577. The case was again remanded for further proceedings. Thereafter, the City Council of College Park adopted a plan to apportion the dist- ricts entirely on the basis of registered voters rather than total population. Under this plan the City will eradicate previous voter registration lists and “conduct an entirely new City-wide voter registration drive." Each housing unit in the City is to be advised of the registration drive. In addition, the City will “deputize" a substantial number of persons whose duty it will be to ensure that all registrants are residents of College Park. Within three months after completion of the registration drive the City will be apportioned into eight districts. Districts are to be reap- portioned every five years if there is vari- ance of five percent or more in the number of registered voters between any district and the mathematical average of all districts. To implement this plan the City would amend its Charter and rescind all inconsistent por- tions of the present Charter. Finally, vot- ing eligibility requirements are not to be changed. The above-summarized plan was approved by the circuit court after a hearing, and the plaintiffs took an appeal to the Court of Special Appeals, claiming that the plan is unconstitutional. As in DuBois I and DuBois II, we issued a writ of certiorari prior to a hearing in the intermediate ap- pellate court. 2 2. The plan described in the text was designated “Plan B" by the City Council. The City Council also adopted an alter- native plan, Plan A, which proposed that a census be taken to determine the num- ber of College Park domiciliaries. From 79 the results of that census, districts would be evenly apportioned. The plan under consideration here, Plan B, was, however, the City's preferred choice as indicated by the following colloquy at oral argument before us: “COUNSEL FOR THE CITY: We have submitted the cross-appeal on Plan A in the event that the Court would find Judge Mattingly's ruling on Plan B... THE COURT: You only want us to... reach your cross-appeal if we re- verse on their appeal (challenging Plan B). COUNSEL FOR THE CITY: That is correct... THE COURT: So this is really a concession, a stipulation, that the City really wants Plan B. COUNSEL FOR THE CITY: That's The plaintiffs’ constitutional objection to College Park's plan is that the apportion- ment is based upon registered voters rather than total federal census population. The plaintiffs, using registered voter figures for the year 1975, claim that persons in councilmanic districts three and five will continue to be underrepresented in light of the 1970 federal census. The Supreme Court, in Reynold v. Sims, 377 U.S. 533, 568, 94 S.Ct. 1362, 1385, 12 L.Ed.2d 506 (1964), held that, under the Equal Protection Clause, a state legislature “must be apportioned on a population basis." correct." Thus, because of our decision in this case, we need not and do not con- sider the constitutionality of Plan A. 81 While pointing out that some "divergences from a strict population standard" are con- stitutionally permissible if “based on leg- itimate considerations incident to the ef- fectuation of a rational state policy," the Court in Reynolds nevertheless held that “the overriding objective must be substantial equality of population among the varous dis- tricts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." 377 U.S. at 579, 84 S.Ct. at 1390. As pointed out by us in DuBois II, 286 Md. at 684, n.4, 410 A.2d 577, the princples set forth in Reynolds v. Sims, and in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), extend to elected local government units exercising substantial governmental authority. See Town of Lockport v. Citizens For Community Action, 430 U.S. 259, 266, n. 11, 97 S.Ct. 1047, 1052, n. ll, 51 L.Ed.2d 313(1977) ; Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971); Hadley v. Junior Col- lege District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Montgomery County v.Gar- rott, 243 Md. 634, 639, 222 A.2d 164 (1966). While population is the basis upon which districts must be apportioned, the plaintiffs' argument in this case overlooks the holdings of the Supreme Court that such a population basis is not required to be the federal census figures in all cases. Thus, the use of "citizen" or "domiciliary" population may be permissible rather than total census population. Furthermore, if the use of reg- istered voters as a basis produces a dis- tribution of elected representatives sub- stantially the same as a permissible pop- ulation basis would produce, registered voters may be used. This was made clear by the Supreme Court in Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966) . In Burns v. Richardson, the State of 83 of Hawaii, because of its large transient population, proposed to use registered voters as the basis for apportionment of the state legislature. Those chal- lenging the plan, like the plaintiffs in the case at bar, pointed to "the sizable differences in results produced by . . . distribution (according to registered voters) in contrast to that produced by the distribution according to the State's total population, as measured by the federal census figures." 384 U.S. at 90, 86 S.Ct. at 1295. The Supreme Court responded by holding that the population basis for apportionment under Reynolds v. Sims did not neces- sarily mean federal census population (Burns, 384 U.S. at 91, 86 S.Ct. at 1296): "The holding in Reynolds v. Sims, as we characterized it in the other cases decided on the same day, is that both houses of a bicameral state legislature must be appor- tioned substantially on a popula- tion basis.' We start with the proposition that the Equal Pfotec- tion Clause does not require the States to use total population figures derived from the federal census as the standard by which this substantial population eauiv- alency is to be measured. Although total population figurer were in fact the basis of comparison in that case and most of the others decided that day, our discussion carefully left open the question what population was being referred to. At several points, we discus- sed substantial equivalence in terms of voter population or cit- izen population, making no distinc- tion between the acceptability of such a test and a test based on to- tal population." In the language just as applicable to College Park with its large transient student population, as to Hawaii with its large transient military population, the Court continued (id. at 92, 8&6 S.Ct. at 1296): "Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the States are required to include aliens, tran- sients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured." The Court in Burns then pointed out that the use of registered voters or ac- tual voters as the basis for apportion- ment does present some problems (id. at 92-93, 86 S.Ct. at 1296-1297): "Such a basis depends not only upon criteria such as govern state cit- izenship, but also upon the extent of political activity of those eligible to register and vote. Each is thus susceptible to impro- per influences by which those in political power might be able to perpetuate underrepresentation of groups constitutionally entitled to participte in the electoral pro- cess, or perpetuate a ‘ghost of prior malapportionment.' Moreover, ‘fluctuations in the number of registered voters in a given elec- tion may be sudden and substantial; caused by such fortuitous factors 87 as a peculiarly controversial elec- tion issue, a particularyly popular candidate, or even weather condi- tions." Ellis v. Mayor & City Council of Baltimore, 352 F.2d 123, 130 (C.A. 4th Cir. 1965). Such effects must be particularyly a matter of concern where, as in the case of Hawaii apportionment, reg- istration figures derived from a single election are made control- ling for as long as 10 years." The Court then held that Hawaii's use of registered voters as the basis for appor- tionment “satisfies the Equal Protection Clause only because on this record it was found to have produced a distribution of legislators not substantially different from that which would have resulted from the use of a permissible population 88 basis." (id. at 93, 36 S.Ct. at 1297). The fact that apportionment on a voter registration basis failed to result in the same distribution as apportionment on a federal census population basis was deemed “insufficient to establish consti- tutional deficiency in light of the large transient military population and large number of tourists who may have been counted in the census figures. Id. at 94-95, 86 S.Ct. at 1297-1298. The Court, reiterating thet "it is enough if it appears that the distribution of reg- istered voters approximated distribution of ... citizens or any other permis- sible population base" (id. at 95, 56 §.Ct, at 1298), stated that it found no error in the trial court's "conclusion that the apportionment achieved by use of a registered voters basis substanti- ally approximated that which would have appeared had .. . citizen population been the guide." Id. at 96, 86 S.Ct. at 1298. Consequently, the teaching of Burns v. Richardson is that voter registration, to be valid as an apportionment base, need not produce the same result as the use of federal census population would produce. Instead, voter registration may be used as an apportionment base if it produces a result not substantially different than that which would be pro- duced by the use of another permissible population base, such as citizen pop- ulation. See also, Gaffney v. Cummings, 412 U.S. 735, 746-748, 93 S.Ct. 2321, 2328-2329, 37 L.Ed.2d 298 (1973), Ely v. Klahr, 403 U.S. 108, 115, n. 7, 91 S.Ct. 1803, 1807, n. 7, 29 L.Ed.2d 352 (1971); Pate v. El Paso County, Texas, 337 F. Supp. 95 (S.D. Tex.) aff'd 400 U.S. 806, 90 91 S. Ct. 55, 27 L.Ed.2d 38 (1979); Borough of Bethel Parl: v. Stans, 319 F. Supp. 971, 977 (W.D.Pa. 1970), aff'd 449 F.2d 575 (3d Cir. 1971); DCgan v. Hammond, 502 P.2d 856 (Alaska 1972). Cf., Ellis v. Mayor And City Council of Baltimore, 352 F. 2d 123 (4th Cir. 1965). Applying these vrinciples to the present case produces a clear result. The plaintiffs have utterly failed to show that the use of voter registration as the apportior~ent base under College Park's new plan will produce a result substantially different than would be produced under a permissible population base. In fact, no such showing could be made at this time, as under the plan approved by the circuit court the pre- sent voter registration lists will be cancelled, and new voter registration lists will compiled following a voter registration drive. After the new 91 voter registration lists are compiled, the apportionment plan might possibly result in the same distribution among districts as a plan based upon the 1980 federal census. Or the plan based on the new voter registration lists may result in the same distribution among districts as a plan based upon citizen or domiciliary population. College Park's new apportionment plan, which is not yet implemented, does not on its face violate equal protection principles. JUDGMENT AFFIRMED. PETITIONERS TO PAY COSTS. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_1155%3A2. Public record. Not legal advice.