Salvos begin in legal skirmish over council districts fTC


Perry Mason it was not.

But for purists, the debate in Circuit Court on Monday about whether the County Council's redistricting plan should be overturned was just as fascinating.

Maybe it was the politics -- Democrats and Republicans pitted against one another in a semantic dig through the county charter, the state constitution and various legal cases.

Or maybe it was the all-star cast -- former U.S. Attorney General Benjamin R. Civiletti and former Georgetown law professor Roger Titus defending the council with help from Sondra Block, an associate from their Rockville office, and Charles A. Reese, attorney for the election board. Representing the Republicans were local luminaries Thomas E. Lloyd and Richard J. Wilkinson, both of whom are Democrats and former county solicitors.

The question Judge Cornelius F. Sybert Jr. was being asked to decide was how much of a role the framers of the 1984 districting amendment intended for voters to have in the council districting process. Before 1986, council members were elected at large.

The making of a law that affects how people vote and for whom they vote is the essence of democracy, Mr. Lloyd told Judge Sybert. The framers of the districting amendment sought to preserve that essence by making the districting process "as notorious as possible [in order] to get wide public input," Mr. Lloyd said. "All these provisions to give substantial public input take time."

Mr. Lloyd was laying the foundation for his argument that redistricting must be accomplished by bill, not by resolution as the council has done. The use of a resolution limits voter participation and thus denies voters due process, he argued.

Bills are subject to a public hearing process often lasting a month or more. Resolutions can be completed in one day, as was the council's districting measure. Bills take effect 60 days after passage, can be vetoed by the county executive, and can be challenged by voters. Challenged bills are put on hold until placed on the ballot and decided by the voters in the next election. Resolutions take effect immediately, are immune to veto, and are not subject to a voter challenge.

A possible voter challenge in 1986 led the council to adopt district lines in a resolution after first adopting them in a bill. If a challenge were successful, the newly drawn district lines would have been put on hold until after the election. And if that happened, council members could not have been elected by district since they would have had to wait until after the election to find out whether voters approved the new districts.

The best way out of that dizzying dilemma, the council decided, was to pass a resolution identical to the districting bill. That way, districts could became a reality immediately.

In 1991, the council again adopted its redistricting plan with a bill, voting 3-2 along party lines for a plan favored by council Democrats. When County Executive Charles I. Ecker, a Republican, vetoed the bill, the council adopted its plan in a resolution, again by a 3-2 vote along party lines. Resolutions can pass by majority vote, but it takes four votes to override a veto.

If voters cannot appeal to the county executive -- "their at-large representative" -- to veto a districting plan, or if they cannot challenge a districting plan by placing it on the ballot, they are being denied their fundamental rights, Mr. Lloyd argued. Every other charter county allows one of those options or something similar to assure due process, he said.

Mr. Civiletti said districting by resolution is necessary to avoid just the sort of impasse that a veto or voter challenge could create. "Maryland does not want an impasse, and Howard County people don't want an impasse," he said.

When asked by Judge Sybert why the council used both a bill and a resolution in 1986, Mr. Civiletti answered, "Prudence -- prudence to make [the districting plan] less subject to attack. They wanted to make it as firm as possible."

Mr. Titus argued that if the framers of the districting amendment had wanted to allow voter challenges or executive vetoes, they would have made the law explicit. The charter says the council shall "establish" districts; it does not say "enact" them, he told Judge Sybert. It says the election board shall implement boundaries "so adopted," it does not say it shall implement boundaries "so enacted," he said.

Additionally, since resolutions are used for temporary administrative measures, they are appropriate for a redistricting process that occurs every 10 years, Mr. Titus said. As long as the council adheres to the charter criteria -- population equality, compactness, contiguity, and common interests -- the council can handle redistricting any way it wants, Mr. Titus argued. Due process is assured, he said, because a voter may sue if the voter believes the council has violated charter criteria.

The suit filed by Republicans David P. Maier of Elkridge and Louis M. Pope of Laurel does not allege violation of any of those criteria, but instead contends the council violated the spirit of the charter by using a resolution instead of a bill.

Judge Sybert is expected to decide the case in about a month. An appeal seems imminent no matter what he decides.

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