Hughes v. Maryland Committee for Fair Representation

217 A.2d 273, 241 Md. 471, 1966 Md. LEXIS 737

• Court: Court of Appeals of Maryland
• Decided: March 2, 1966
• Docket: [No. 487, September Term, 1965.]
• Status: Published

Opinions

Prescott, C. J.,

delivered the opinion of the Court. Horney and Barnes, JJ., dissent. Dissenting opinion by Barnes, J., in which Horney, J., concurs, at page 491, infra.

The importance of the result of our per curiam order herein, where a majority of the Court affirmed the holdings of the trial judge, would justify an opinion of very considerable length setting forth the reasons therefor. However, such a course is not necessary or desirable, and will not be followed. Although the subject of apportionment of State Legislatures has seemingly been the subject of more legal opinions¹ and law review articles ² than any other single legal theme since the decision in Baker v. Carr, 369 U. S. 186 (1962) wherein the Supreme Court decided to place the apportionment of State Legislatures under the supervision of the Federal (as well as the State) Courts, the Supreme Court, which is the ultimate interpreter of the United States Constitution, has, itself, spoken in plain terms on the question presently involved. Hence, if we analyze the great number of state and lower federal court decisions, as well as the numerous law review articles, it would simply result in useless repetition and consumption of space, for all of them aim at trying to discover what the Supreme Court has said, and probably will say, on the subject. The answers to the questions herein involved are contained in the Supreme Court’s opinions in the appeal in this case, Maryland Committee, etc., v. Tawes, 377 U. S. 656, and Reynold's v. Sims, 377 U. S. 533.

Two questions are presented: (1), Does Senate Bill 8 of the Acts of Assembly, Extraordinary Session 1965, constitutionally apportion the membership of the State Senate; and (2), If it does not, is Senate Bill 5 free of constitutional infirmity, because it apportions the membership of both the State Senate and the House of Delegates in a constitutionally permissible manner?

We set forth here a bare outline of the history of the case, because a detailed account thereof may be found in our two previous opinions (228 Md. 412 and 229 Md. 406) and the opinion of the Supreme Court on appeal thereto (377 U. S. 656). (There is a slight typographical error on page 663 where the opinion states this Court split 5-to-3 on its decision. The split was 4-to-3.)

The case originated in 1960 by a bill of complaint filed in the Circuit Court for Anne Arundel County. The plaintiffs alleged that the apportionment of the General Assembly, pursuant to Article III, §§ 2 and 5, of the Maryland Constitution, discriminated against them as inhabitants and voters in the more populous areas of the State, by according them substantially less representation than that given to persons residing and voting in less populous areas. They requested declaratory and injunctive relief. In February, 1961, the trial court sustained defendants’ demurrers and dismissed the bill. In April of 1962, we reversed (splitting 5-to-2) and remanded. (228 Md. 412.) On May 24, 1962, the trial court held that the House of Delegates was unconstitutionally apportioned, but made no finding with reference to the Senate. The Legislature, called into special session by the Governor in May, 1962, enacted stop-gap legislation allocating 19 additional seats in the House of Delegates to the more populous areas of the State.

As the trial court made no ruling with reference to the apportionment of the Senate, the plaintiffs appealed to this Court. On June 8, 1962, we remanded for a decision on the question. The trial judge concluded that the Senate was constitutionally constituted, and the plaintiffs, again, appealed. This Court, splitting 4-to-3, affirmed. The plaintiffs appealed to the Supreme Court, where the holding was reversed, the Supreme Court holding that the apportionment of both the House of Delegates and the Senate was invidiously discriminatory and, therefore, unconstitutional and illegal. In compliance with the mandate from the Supreme Court, we remanded the case to the trial court with directions to retain jurisdiction and to take affirmative action upon application of any of the parties in the event that the Legislature failed to enact a constitutionally valid apportionment scheme prior to the 1966 primary elections.

At its regular 1965 session, the Legislature passed no reapportionment legislation. As a result thereof, the Governor convened a special session for the purpose of complying with the Supreme Court’s mandate that such legislation must be enacted. Senate Bills 5 and 8 resulted. Senate Bill 8 contains an unusual provision stating that if it “be declared valid by the Court of Appeals of Maryland,” then Senate Bill 5 “shall not become effective.” The purpose of this provision is, of course, to obtain for the less populous areas the more favorable representation afforded them by Senate Bill 8, if constitutionally permissible. The Governor signed both Bills, after publicly announcing that he thought Senate Bill 8 unconstitutional, but that the Legislature was entitled to have the Court of Appeals pass upon that question first, if the Legislature so desired. This is the posture of the case as it reaches us at this time.

As previously indicated, we find it unnecessary, under the facts here presented, to set forth, elaborately, the applicable law. Although recognizing the impracticability of apportioning on the basis of an exact mathematical formula, in both the appeal in this case and in Sims, supra, the Supreme Court held, flatly, that each body of a bicameral state legislature must be apportioned primarily on a population consideration. In addition to this holding, the opinion in Sims, obligingly, went on to advise as to what probably would, and what probably would not, be constitutionally permissible under certain named circumstances. We quote pertinent excerpts therefrom:

“* * * Wesb erry clearly established that the fundamental principle of representative government in this country is one of equal representation for equal numbers of people, without regard to race, sex, economic status, or place of residence within a State.”

“Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests.”

“Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, * *

“And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State’s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. Arid it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable. Of course, the effect of state legislative districting schemes which give the same number of representatives to unequal numbers of constituents is identical.”

“While the result of a court decision in a state legislative apportionment controversy may be to require the restructuring of the geographical 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 constitutes an impermissible impairment of their constitutionally protected right to vote.”

* * *

“But the basic principle of representative government remains, and must remain, unchanged — the weight of a citizen’s vote cannot be made to depend on where he lives. Population is, of necessity, the starting point for consideration and the controlling criterion for judgment in legislative apportionment controversies.”

Hi ^ ❖

“Logically, in a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators. To conclude differently, and to sanction minority control of state legislative bodies, would appear to deny majority rights in a way that far surpasses any possible denial of minority rights that might otherwise be thought to result.”

* * *

“We are told that the matter of apportioning representation in a state legislature is a complex and many-faceted one. We are advised that States can rationally consider factors other than population in apportioning legislative representation. We are admonished not to restrict the power of the States to impose differing views as to political philosophy on their citizens. We are cautioned about the dangers of entering into political thickets and mathematical quagmires. Our answer is this: a denial of constitutionally protected rights demands judicial protection; our oath and our office require no less of us.”

I

Senate Bill 8 provides for a 53-member Senate, to be elected from 29 senatorial districts (with a further provision relative to “subdistricts,” not necessary to be considered in detail). One seat is allocated to each of 19 counties (Maryland, of course, has but 23), and the balance are allocated to the other (more populous) counties and the Legislative Districts of Baltimore City. It takes no more than a cursory examination of the Bill to see that its underlying scheme, glaringly, falls far short of the requisites laid down by the Supreme Court to render the provisions of a state apportionment measure constitutionally permissible.

Under the Bill, each district or subdistrict would elect at least 1 Senator. It will be unnecessary to state all of the disparities in population ratios in all of the districts and subdistricts; some of them follow. Kent and Calvert Counties, each with a population of about 15,000 souls (population will sometimes be referred to herein in even thousands), are given 1 senator apiece, while 17 other counties, with larger populations, some with populations as high as 84,000 (Allegany) and 91,000 (Washington), are also only allocated 1 senator each.³ A simple arithmetical calculation shows the disparity in individual voting effectiveness to range to a ratio of just about 6 to 1. Baltimore City, with a population of 939,000 is allotted 12 senators; Baltimore County, with a population of 492,000, 7 senators; and Prince George’s County, with a population of 357,000, 6 senators. Taking 15,000, the population of Calvert and Kent Counties, as a basis for calculation, it is seen that the votes of the people of Baltimore City, when compared with the votes of the people of those counties, are debased or diluted more than 5 to 1; the votes of the people of Baltimore County by over 4J^ to 1; and the votes of the inhabitants of Prince George’s County nearly 4 to 1.

Additionally, it should be noted that under the scheme of the Bill some 37% of the State’s population would elect a majority of 27 senators.

3a Also, it is significant that very few of the 29 Districts would involve a variance of less than 15% (a figure that some courts consider to be. about the top variance allowable, except under very unusual circumstances, or necessary, in a few instances, to round off an otherwise rational state apportionment scheme), although some of the variances would range to about 74%.

A reading of the above facts discloses that Senate Bill 8 transgresses and runs counter to nearly, if not, all of the mandates contained in the excerpts we have quoted from Sims. It is not based, primarily, on a population scheme; on the contrary, it is patently based upon geographical consideration, with county lines forming the boundaries, for the main part, of the Senatorial Districts, and the Districts, as proposed, would without peradventure of doubt, discriminate against large segments of the citizens of the State in their “constitutionally protected right to vote” without those votes being diluted. It, possibly, would permit considerably less than a majority of the population to elect a majority of the Senators. It definitely and obviously makes the weight of the citizens’ votes “depend on where [they] live,” and this “weight” is shown to vary nearly to the ratio of 6 to 1.

However, counsel for the appellants, with commendable zeal⁴ and at great length, have urged upon us that the disparities mentioned above are constitutionally permissible because of the large amount of local legislation considered by the members of the General Assembly, and the important role in Maryland played by its counties. We concede the postulates of this argument, and, in answering the same, would discuss and consider them at greater length, were it not for the fact that the Supreme Court has already answered the same, and its rulings upon the Federal Constitution are binding, not only upon us, but upon all of the Courts in this Nation. In Sims, at p. 578 of 377 U. S., the Chief Justice, for the Court, stated :

“Since, almost invariably, there .is a .significantly larger number of seats in state legislative bodies to be distributed within a State than congressional seats, it may be feasible to use political subdivision lines to a greater extent in establishing state legislative districts than in congressional districting while still affording adequate representation to all parts of the State. To do so would be constitutionally valid, so long as the resulting apportionment was one based substantially on population and the equal-population principle was not diluted in any significant way.”

From our statement above of the provisions of the Bill, wherein the county lines are predominantly utilized for political subdivision purposes and the weight of citizens’ votes are debased to a rate of 1 to 6, can it be seriously contended the Bill “Still afford[s] adequate representation to all parts of the State,” or that the apportionment is one based substantially on population, and “the equal population principle [has not been] diluted in any significant way”? We think not. The figures themselves show, to the point of mathematical demonstration, that the equal-population principle is attempted to be diluted to such an extent that the Bill has little resemblance to constitutional permissibility. In our judgment, the Bill attempts to “dilute” the equal-population rule to a point where we know of no ready “condiment” that would quickly restore its constitutional “flavor.”

The Court, again, at page 580, recognizes that “some deviations from population-based representation” may be allowable in order to insure “some voice” to political subdivisions as political subdivisions, “as long as the basic standard of equality of population among districts is maintained.” (Emphasis ours.) Finishing the paragraph, the Court concluded:

“But if, even as a result of a clearly rational state policy of according some legislative representation to political subdivisions, population is submerged as the controlling consideration in the apportionment of seats in the particular legislative body, then the right of all of the State’s citizens to cast an effective and adequately weighted vote would be unconstitutionally impaired.” (Emphasis again ours.)

The Court had already stated, as quoted above, “* * * if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part * * *, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” (Emphasis added.) This portion of the opinion makes clear what that Court meant when it used the phrase “population is submerged as the controlling consideration.” With the disparity in the instant case ranging to some 6 to 1, we have no hesitancy in holding that population is submerged as the controlling consideration in Senate Bill 8, and its overall provisions render it constitutionally impermissible.

The Supreme Court, in Sims, clearly stated that, in considering the constitutional composition of a bicameral legislature, the make-up of both branches should be considered together, for it is possible that the composition of one body of such a legislature might prevent some deviation in the other body from being constitutionally impermissible, which would be impermissible if the composition of that body were considered alone. We have considered Senate Bill 8 in this light. It and Senate Bill 5 have identical provisions relative to the apportionment of the House of Delegates. We find nothing in the apportionment of the House, as we will explain it below, which would remedy the constitutional pitfalls of Senate Bill 8.

If we entertained any doubts whatever that our above holding is not directed and impelled by the decisions in Sims, supray and the appeal of this case to the Supreme Court, they would be quickly dispelled by a reading of any one of three cases decided by that Court on the same day as Sims and the appeal! herein: WMCA, Inc. v. Lomenze, 377 U. S. 633, where New York’s apportionment of both Houses was declared invalid; Davis v. Mann, 377 U. S. 678, which struck down Virginia’s apportionment—-variances in the House ranging to 4.36 to 1, in the Senate to 2.65 to 1; and Lucas v. Colorado General Assembly, 377 U. S. 713, which dealt likewise with Colorado’s apportionment where the disparities in the Senate ranged to 3.6 to 1, and in the House 1.7 to 1.

Appellants’ final contention is that the Bill should be sustained as a valid stop-gap measure. The short but complete answer to this is the Supreme Court’s command in its remand of the case to this Court: “However, under no circumstances should the 1966 election of members of the Maryland Legislature be permitted to be conducted pursuant to the existing or-any other unconstitutional plan.” 377 U. S. at p. 676.

II

We turn to Senate Bill 5. None of the parties hereto contests its validity; however, in view of the mandate of the Supreme Court, mentioned above, we deem it appropriate to pass, upon its validity.

This Bill presents a different picture from Bill 8. An analysis of Bill 5 discloses an underlying scheme of apportionment of each branch of the Maryland Legislature based primarily on the population of the State’s residents. We consider first the-provisions relative to membership of the Senate.

The State is divided into 16 Senatorial Districts from which 43 Senators will be elected; 3 from District 1, comprising Garrett, Allegany and Washington Counties; 2 from District 2, Frederick and Carroll Counties; 5 from District 3, Montgomery and Howard Counties; 5 from District 4, Prince George’s County; 1 from District 5, Charles and St. Mary’s Counties; 3 from District 6, Anne Arundel and Calvert Counties; 2 each from Districts 7-12 (the Legislative Districts of Baltimore City) ; 7 from District 13, Baltimore County; 1 from District 14, Harford County; 2 from District 15, Cecil, Kent, Queen Anne’s, Caroline and Talbott Counties; and 2 from District 16, Dorchester, Wicomico, Worcester, and Somerset Counties. The bill provides for subdistricting any district entitled to elect more than 2 Senators.

Looking at the Bill in the light the Supreme Court has said that we must, i.e., placing the “judicial focus” on “the overall representation accorded to the State’s voter,” we find from Appendix 2 the following. The State’s population (1960 census) is 3,100,689, which divided by 43 gives a mathematical unit of senatorial population of 72,109. The least percentage of the State’s population which can elect a majority of 22 Senators will be 47.8. The Supreme Court, in one of the excerpts from Sims above, stated that it was not too much to expect from a proper apportionment that a majority of the voters be required in order to elect a majority of the members of a legislature. However, the Court recognized that its suggested guidelines set forth therein were not inflexible, and, under warranted circumstances, they might yield slightly in order to accommodate and accomplish a rational state policy of apportionment. The rather small discrepancy here is not sufficient, we think, to destroy the validity of the reasonable and well thought-out apportionment ■of the members of the Senate.

Further, in no District is one voter’s vote raised or diluted to a ratio of as much as 2 to 1. On the contrary, in only 4 of the 16 Districts does the population-per-senator figure vary more than 15% from the mathematical population norm,⁵ and these exceed the 15% by small margins only (two of these are Legislative Districts in Baltimore City, whose overall variance is but 8.5%). And in 7 of the Districts the variance is less than 7%.

Although these comparatively small disparities exist, they are to be expected in nearly any rational overall State policy in reapportioning its Assembly, and they indicate no ulterior motives, for the Districts follow the boundaries of the present political subdivisions. The following of the existing boundaries, in and of itself, has certain distinct advantages, among them being the handling of voting machinery, its facility in conducting elections, and the less likelihood of any attempt at gerrymandering.

We hold that this Bill is an honest State effort to apportion the Senate on a population basis, and the small inequalities in voting strength mentioned above result from a good-faith attempt to effectuate a rational State policy, and that they are within the limitations set by the Supreme Court as being Constitutionally permissible.

We turn now to the apportionment of the House of Delegates. Senate Bill 5 provides for a membership of 142 Delegates. Each county of the State and Baltimore City is allocated a minimum of 1 Delegate, accounting for 24 members. The remaining 118 seats are apportioned among the counties and Baltimore City according to the mathematical formula of equal proportions. The formula is applied by dividing the population of each county and the City, separately, by the geometrical mean between the numerals 1 and 2, 2 and 3, 3 and 4, and continuing in the progression so long as necessary to complete the computation. The resulting quotients for the House of Delegates are then arranged in order of numerical size, from the largest to the smallest, and the first 118 listings are given as additional memberships to the particular county or to Baltimore City. The Delegates thus allotted to the City are apportioned in the same manner and allocated to the several Legislative Districts thereof. The result of this “more or less fancy” mathematical calculation in apportioning the Delegates is shown, according to the parties, on Appendix 3.

The Bill also makes provision for dividing the counties and the City into districts, based on population, in the event any county is awarded more than 8 Delegates, or the City more than 48. It also provides for continuing its provisions in the elections after the year 1970, on the bases of federal decennial censuses. It is unnecessary to discuss the details of these provisions here.

An examination of Appendix 3 reveals that the mathematical unit of delegate population is 21,836. Each county obtains at least 1 member. Of the 142 seats, 132 will be elected by populations with variances less than 15% of the mathematical norm. The highest variance in the 10 seats which exceed 15% is one seat which ranges to 36%, but none of them reaches a disparity as great as 2 to 1. According to the decisions, 36% is, of course, high. However, as we stated above, the Supreme Court has recognized that some divergences from population-based representation are permissible, so long as they are the result of legitimate considerations incident to the effectuation of a rational state policy, based principally upon population. Reynolds v. Sims, supra; Roman v. Sincock, 377 U. S. 695. Compare Lucas v. Colorado General Assembly, supra, 377 U. S. 713. The parties to this appeal and the counsel who represent them have, for the main part, been vitally interested, for the last several years, in matters pertaining to apportionment, and have made careful studies of the decisions and writings thereon. They all agree that Bill 5 is constitutionally permissible. In •light of the above and our own careful consideration of the matter, we are unwilling to strike down the Bill for the comparatively few “suspect” variances, which, in our view, clearly result from an earnest effort to accomplish a reasonable statewide apportionment, and, at the same time, accord some slight independent representation to individual, existing political subdivisions.

It will be noted that the 19 least populous counties and the First, Third, Fourth, Fifth and Sixth Legislative Districts of Baltimore City, with 49.5% of the State’s population will elect 71 Delegates, constituting 50% of the membership and the remaining political subdivisions, with 50.5% will also elect 71 members. A further analysis of Appendix 3 discloses that 5 subdivisions, having 75.3% of the population, will select 106 Delegates, or 74.7% of the membership, while the remaining subdivisions, with 24.7% of the population will elect 36 members, constituting 25.3% of the total membership. To us, this demonstrates an honest and sincere apportionment, founded, primarily and principally, upon population.

We hold that Senate Bill 5 is constitutionally sustainable, and that it does not violate either the State or Federal Constitutions.

The above are the reasons that the majority passed the per curiam order herein.

The majority previously directed a per curiam order sustaining the order of the trial court. We add to that order that the trial court retain jurisdiction at least until after the 1966 General Elections; and that appellants pay the costs.

APPENDIX 1

Reapportionment of Senate

53 Members (Senate Birr 8)

APPENDIX 2

Senate Bill 5—Third Reading Copy

Senator James Plan for Reapportionment of Senate with 43 Members

APPENDIX 3

Reapportionment op House op Delegates 142 Members by Mathematical Formula op Equal Proportions (Senate Bills S and 8)

1 . Within nine months after Baker v. Carr, infra, litigation relative to apportionment had been begun in some 34 States.

2 . They run anywhere from “Courts in the Thicket,” Hanson, 13 Amer. U. L. Rev. 51, to “Political Thickets and Crazy Quilts: etc.,” McKay, 61 Mich. L. Rev. 645.

3 . The populations of the counties and Baltimore City are stated in the appendices 1, 2 and 3 filed herewith. See also Appendix A and Appendix B on pp. 429 and 430 of 229 Md. These appendices show in detail the various disparities.

. Appendix 3 shows that Somerset, Kent, Caroline, Queen Anne’s, Talbot, Dorchester, Wicomico, Worcester, Cecil, Calvert, St. Mary’s, Charles, Howard, Carroll and Garrett would each elect 1 Senator for a total of 15; Montgomery and Prince George’s 13 for a total of 37 Senators.

The combined population of these counties is 1,138,563; which is 36.7% of the total population of 3,100,689.

4 . Counsel for appellants advanced, with ability and skill, every seemingly possible argument favorable to their clients, and counsel for the other parties did likewise. The Attorney General points to his rather unusual role in not defending the constitutionality of a legislative enactment. We know of no reason why the Attorney General, or any other lawyer, should stultify himself by arguing to the Court contrary to his honest beliefs. He would have been in a most anomolous situation, after advising the Legislature that Senate Bill 8 was unconstitutional, if he argued here that it was. In our judgment, the Attorney General and his staff who assisted him conducted themselves with proper decorum as officers of this Court.

5 . The Supreme Court has not set an exact mathematical ratio, which will be constitutionally permissible or impermissible, and neither has any other Court to our knowledge. However, as we stated above, some Courts have adopted as a rule of thumb that a variance of over 15% from the population norm would be constitutionally suspect, while any lesser discrepancy would, under ordinary circumstances, probably be constitutionally permissible. Toombs v. Fortson, 341 F. Supp. 65 (1965) (D. C., N. D. Ga.); Silver v. Brown, 405 P. 3d 133 (Sup. Ct. Cal. In Bank).