If someone sues over Maryland's legislative redistricting map under the federal Voting Rights Act, do they file in a circuit court, the Court of Appeals, or federal court?

Plain-English summary

The Speaker of the Maryland House of Delegates asked the Attorney General a jurisdictional question: if a private citizen sued claiming that Maryland's legislative redistricting plan violated Section 2 of the federal Voting Rights Act, which court could hear the case, a circuit court, the Court of Appeals, or only a federal court?

The Attorney General concluded that federal law did not give federal courts exclusive jurisdiction over private Section 2 claims, since the Voting Rights Act contained no language cutting off the state courts' normal concurrent jurisdiction over federal claims. But the opinion also concluded that, as a matter of Maryland law, such a claim could not be filed in a circuit court either. Because Article III, §5 of the Maryland Constitution gives the Court of Appeals original and exclusive jurisdiction to review the state's legislative districting, the opinion reasoned that a Section 2 challenge to the redistricting plan had to be brought as an original action directly in the Court of Appeals.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Voting Rights Act challenge to Maryland's legislative districts have been filed in a circuit court instead of going straight to the Court of Appeals?
No. The opinion concluded that a private Section 2 challenge to the state legislative redistricting plan had to be filed as an original action in the Court of Appeals, and could not be brought in a circuit court, because the Court of Appeals's original jurisdiction under Article III, §5 of the Maryland Constitution was exclusive.

Did federal law require that this kind of redistricting lawsuit go to federal court instead of state court?
No. The opinion reasoned that federal law did not divest Maryland courts of jurisdiction over a private Section 2 claim, because neither Section 2 itself nor the general federal jurisdictional statutes typically invoked in such suits contained language cutting off the states' presumptively concurrent jurisdiction over claims arising under federal law.

Article III, §5 talks about the state and federal constitutions. Why would a claim under a federal statute like the Voting Rights Act fall under it?
The opinion acknowledged that Article III, §5 refers by its terms to reviewing whether districting is consistent with the state and federal constitutions, not federal statutes. But it concluded the provision should be read broadly enough to also reach a Voting Rights Act claim, reasoning that the constitutional and statutory theories in a redistricting case are closely related, that the drafters could not have anticipated 1982 amendments to Section 2 when they wrote the provision in 1970, and that splitting jurisdiction between a circuit court and the Court of Appeals would undercut the goal of a prompt, final resolution of redistricting disputes.

Background and statutory framework

Section 2 of the Voting Rights Act, 42 U.S.C. §1973, prohibits any voting practice or procedure that denies or abridges the right to vote on account of race, color, or membership in certain language minority groups. A private plaintiff bringing a Section 2 claim in federal court typically relies on general jurisdictional statutes such as 28 U.S.C. §1331 (federal question jurisdiction) and 28 U.S.C. §1343(a)(3) and (a)(4) (civil rights and voting-rights jurisdiction), none of which are unique to Section 2 or expressly exclude state courts. The opinion contrasted this with Section 5 of the Voting Rights Act, 42 U.S.C. §1973c, a separate preclearance provision (not applicable in Maryland) whose companion provisions specifically channel certain proceedings to a three-judge federal court or the District Court for the District of Columbia, language Section 2 does not have.

Article III, §5 of the Maryland Constitution gives the Court of Appeals "original jurisdiction to review the legislative districting of the State" and lets it "grant appropriate relief" if the districting is inconsistent with the federal or state constitution. The opinion noted that the Court of Appeals had already held, in State Administrative Board of Election Laws v. Calvert, that this original jurisdiction is exclusive, meaning circuit courts may not hear constitutional challenges to a legislative redistricting plan. The opinion extended that same exclusivity to a Voting Rights Act claim, reasoning that the purpose behind giving the Court of Appeals original jurisdiction, prompt and final resolution of redistricting disputes, applied with equal force to a federal statutory claim closely related to the constitutional claims the provision was written to address.

Citations

Statutes:

• 42 U.S.C. §1973 (Section 2 of the Voting Rights Act)
• 42 U.S.C. §1973(a) and (b) (prohibition on denial or abridgment of the right to vote)
• Article III, §5 of the Maryland Constitution (Court of Appeals original jurisdiction over legislative districting)
• 28 U.S.C. §1331 (federal question jurisdiction)
• 28 U.S.C. §1343(a)(3) and (a)(4) (civil rights and voting-rights jurisdiction)
• 42 U.S.C. §1973j(f) (Voting Rights Act enforcement jurisdiction provision)
• 28 U.S.C. §2284(a) (three-judge federal district court panels)
• 42 U.S.C. §1973c (Section 5 preclearance provision, not applicable in Maryland)
• 42 U.S.C. §1973j(d) (U.S. Attorney General's authority to bring a Section 2 civil action)

Cases:

• Thornburg v. Gingles, 478 U.S. 30 (1986)
• McDaniels v. Mehfoud, 702 F. Supp. 588, 589 (E.D. Va. 1988)
• East Jefferson Coalition v. Jefferson Parish, 691 F. Supp. 991, 994 (E.D. La. 1988)
• Jordan v. Winter, 541 F. Supp. 1135, 1137-38 (N.D. Miss. 1982)
• Beatty v. Esposito, 411 F. Supp. 107 (E.D.N.Y. 1976)
• Carr v. Secretary of State, 441 So. 2d 223 (La. App. 1983)
• Ortiz v. Thompson, 604 S.W.2d 443 (Tex. Civ. App. 1980)
• Hathorn v. Lovorn, 457 U.S. 255, 268-69 (1982)
• State Administrative Board of Election Laws v. Calvert, 272 Md. 659, 678-84, 327 A.2d 290 (1974)
• Smith-Greenspring Assoc., Inc. v. William Donald Schaefer, Case No. CC-92-00289 (Cir. Ct. for Anne Arundel Cty., Feb. 4, 1992)
• Tafflin v. Levitt, 110 S.Ct. 792, 795 (1990)
• Yellow Freight System, Inc. v. Donnelly, 110 S.Ct. 1566, 1568 (1990)
• Grubb v. Public Utilities Commission, 281 U.S. 470 (1930)
• Rzeznik v. Chief of Police, 373 N.E.2d 1128 (Mass. 1978)
• Sweeney v. Hartz Mountain Corp., 319 Md. 440, 573 A.2d 32 (1990)
• Maryland-National Capital Park & Planning Comm'n v. Crawford, 307 Md. 1, 511 A.2d 1079 (1986)
• In re Legislative Districting, 299 Md. 658, 475 A.2d 428 (1982)
• Armour v. State of Ohio, 925 F.2d 987, 988 (6th Cir. 1991)
• Norris v. Mayor & City Council, 172 Md. 667, 675-76, 192 A. 531 (1937)
• Kindley v. Governor, 289 Md. 620, 625, 426 A.2d 908 (1981)
• United States v. City of Cambridge, Maryland, 799 F.2d 137 (4th Cir. 1986)
• Allen v. State Board of Elections, 393 U.S. 544, 583, n. 1 (1969)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1992/Volume77_1992.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

CIVIL RIGHTS AND DISCRIMINATION

Elections - Reapportionment and Redistricting - Courts and Judges - Jurisdiction and Procedure - Jurisdiction Over Private Challenges to Legislative Redistricting Plan Under Section 2 of Voting Rights Act

February 19, 1992

The Honorable R. Clayton Mitchell, Jr.
Speaker of the House of Delegates

You have requested our opinion on the jurisdiction of the Maryland Court of Appeals to hear and decide a private civil action alleging that the State legislative redistricting plan violates Section 2 of the federal Voting Rights Act, 42 U.S.C. §1973. Specifically, you ask whether a challenge based on this federal law may be initiated in the Court of Appeals "or whether such an issue is one within the sole province of the federal courts."

For the reasons detailed below, we conclude that federal courts do not have exclusive jurisdiction over private actions under Section 2 of the Voting Rights Act and that a Section 2 voting rights challenge to the State legislative redistricting plan may be brought as an original action in the Court of Appeals. Moreover, we conclude that under Article III, §5 of the Maryland Constitution, any such challenge must be brought in the Court of Appeals and may not be brought in a circuit court.

I
Background

A. Section 2 Claims

Section 2 of the Voting Rights Act of 1965, as amended in 1982, prohibits the denial or abridgement of the right of citizens of the United States to vote on account of race, color, or foreign language. 42 U.S.C. §1973(a). The Act seeks to ensure that racial and linguistic minorities do not "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. §1973(b). See generally Thornburg v. Gingles, 478 U.S. 30 (1986).

A typical Section 2 claim in federal court might invoke a number of federal court jurisdictional and remedial statutes, such as 28 U.S.C. §1331 (federal questions); 28 U.S.C. §1343(a)(3) (civil rights actions); 28 U.S.C. §1343(a)(4) (actions to protect the right to vote); and 42 U.S.C. §1973j(f) (certain actions under the Voting Rights Act).1 See, e.g., McDaniels v. Mehfoud, 702 F. Supp. 588, 589 (E.D. Va. 1988); East Jefferson Coalition v. Jefferson Parish, 691 F. Supp. 991, 994 (E.D. La. 1988); Jordan v. Winter, 541 F. Supp. 1135, 1137-38 (N.D. Miss. 1982). If a Section 2 claim is joined with a Fourteenth or Fifteenth Amendment constitutional challenge to a state legislative redistricting plan, a federal court plaintiff would seek the empanelment of a three judge district court pursuant to 28 U.S.C. §2284(a).

The jurisdictional provisions typically invoked when a Section 2 claim is brought are thus broad ones, not unique to Section 2 claims. The contrast with another provision of the Voting Rights Act, Section 5, is instructive. Section 5, 42 U.S.C. §1973c, establishes a preclearance mechanism for changes in voting qualifications and procedures undertaken by certain states and political subdivisions and authorizes specific judicial relief in federal courts. Section 5, which does not apply in Maryland, provides that "[a]ny action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code." And Section 14(b), 42 U.S.C. §1973l(b), which governs declaratory judgments approving proposed changes in voting procedures states that "[n]o court other than the District Court for the District of Columbia ... shall have jurisdiction to issue any declaratory judgment pursuant to ... Section 5 ..." Looking at these provisions, some courts have concluded that a Section 5 action can be brought only in federal court. See Beatty v. Esposito, 411 F. Supp. 107 (E.D.N.Y. 1976); Carr v. Secretary of State, 441 So. 2d 223 (La. App.), writ denied 442 So. 2d 445 (La. 1983); Ortiz v. Thompson, 604 S.W.2d 443 (Tex. Civ. App. 1980).2

1 Section 12(f) of the Act, 42 U.S.C. §1973j(f), states that "[t]he district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section...." Although courts have cited this provision as a basis for district court jurisdiction of a private Section 2 action, read literally, §1973j applies only to criminal proceedings and civil actions brought by the U.S. Attorney General, which are the only proceedings named in "this section." The Attorney General of the United States may bring a civil action to enforce Section 2 pursuant to 42 U.S.C. §1973j(d).
2 In Hathorn v. Lovorn, 457 U.S. 255, 268-69 (1982), the Supreme Court noted that it was "possible that these sections grant the federal courts exclusive jurisdiction" over actions under Section 5. However, the justices declined to decide the question, finding in that case that the Section 5 issue had been raised collaterally, i.e., not directly under federal law, and thus could be decided in state court. 457 U.S. at 268.

B. Legislative Redistricting Claims

The portion of Article III, §5 of the Maryland Constitution that governs State court review of a legislative redistricting plan provides as follows:

Upon petition of any registered voter, the Court of Appeals shall have original jurisdiction to review the legislative districting of the State and may grant appropriate relief, if it finds that the districting of the State is not consistent with requirements of either the Constitution of the United States of America, or the Constitution of Maryland.

On the basis of the history of this provision, the Court of Appeals has said that the Court's original jurisdiction in State legislative redistricting cases is exclusive. See State Administrative Board of Election Laws v. Calvert, 272 Md. 659, 678-84, 327 A.2d 290 (1974). The Calvert opinion traced the evolution of Article III, §5 from its genesis as a proposal of the Constitutional Convention Commission to its adoption by the voters in 1970. According to the Convention Commission and a committee of the Convention itself, the purposes of original Court of Appeals jurisdiction were to reduce litigation and shorten the time required to dispose of redistricting cases so that there would be a prompt and final settlement of any constitutional issues. 272 Md. at 680-82.

Thus, State trial courts may not entertain a challenge to the constitutionality of a legislative redistricting plan. 272 Md. at 684. See also Smith-Greenspring Assoc., Inc. v. William Donald Schaefer, Case No. CC-92-00289 (Cir. Ct. for Anne Arundel Cty., Feb. 4, 1992).

C. Issues

In light of these provisions, we must consider (1) whether federal law divests state courts of jurisdiction over a private party's Section 2 claim and, if not, (2) whether such a statutory claim is within the exclusive original jurisdiction of the Maryland Court of Appeals, in light of the language of Article III, §5 apparently limiting judicial intervention to relief for violations of constitutional requirements.

2 (...continued)
collaterally, i.e., not directly under federal law, and thus could be decided in state court. 457 U.S. at 268.

II
Federal Jurisdiction Is Not Exclusive

The U.S. Supreme Court has consistently held that, under our "system of dual sovereignty ... state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States." Tafflin v. Levitt, 110 S.Ct. 792, 795 (1990). Thus, "[t]o give federal courts exclusive jurisdiction over a federal cause of action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their presumptively concurrent jurisdiction." Yellow Freight System, Inc. v. Donnelly, 110 S.Ct. 1566, 1568 (1990).

Section 2 of the Voting Rights Act contains no language that expressly confines jurisdiction to federal courts or ousts state courts of their presumptive jurisdiction.3 According to the Supreme Court, "[t]he omission of any such provision is strong, and arguably sufficient, evidence that Congress had no such intent." Yellow Freight System, Inc. v. Donnelly, 110 S.Ct. at 1569. In addition, the federal jurisdictional statutes relied upon in a typical Section 2 suit in federal court are, for the most part, merely general grants of power that have never been read as ousting concurrent state court jurisdiction. See, e.g., Grubb v. Public Utilities Commission, 281 U.S. 470 (1930); Rzeznik v. Chief of Police, 373 N.E.2d 1128 (Mass. 1978). See also Yellow Freight System, Inc. v. Donnelly, 110 S.Ct. at 1569 (concurrent state court jurisdiction is not divested by a statute that "affirmatively describes the jurisdiction of the federal courts, but is completely silent on any role of the state courts ...").

Moreover, state court jurisdiction is in no way functionally incompatible with Section 2 of the Voting Rights Act. No special procedures, federal agency review, or jurisdictional prerequisites must be met before the filing of such a suit. State courts are presumed to be "just as able as federal courts to adjudicate" federal anti-discrimination claims. Yellow Freight System, Inc. v. Donnelly, 110 S.Ct. at 1570 (Title VII cases). See also Sweeney v. Hartz Mountain Corp., 319 Md. 440, 573 A.2d 32 (1990) (claim under Title VII of the 1964 Civil Rights Act); Maryland-National Capital Park & Planning Comm'n v. Crawford, 307 Md. 1, 511 A.2d 1079 (1986) (racial discrimination claim under 42 U.S.C. §1983).

Finally, the Court of Appeals has already adjudicated voting rights claims under the Fourteenth and Fifteenth Amendments to the U.S. Constitution. See In re Legislative Districting, 299 Md. 658, 475 A.2d 428 (1982). And "[t]he theories of liability and the proof underlying both the constitutional and statutory [Section 2] claims are intimately related ..." Armour v. State of Ohio, 925 F.2d 987, 988 (6th Cir. 1991).4

For all of these reasons, it is our opinion that Maryland courts are not divested by federal law of jurisdiction over a private action for violation of Section 2 of the Voting Rights Act.

3 Nor does Section 12(f), even if it were deemed applicable to private claims under Section 2. See note 1 above.
4 We are also informed that the Michigan Supreme Court, which has original jurisdiction of legislative reapportionment claims under Article IV, §6 of that state's constitution, is presently entertaining a Section 2 claim.

III
Court of Appeals Jurisdiction Is Exclusive

Even though federal law does not prevent a Maryland court from hearing a Section 2 claim, the question remains whether as a matter of State law such a claim must be brought in the circuit court or in the Court of Appeals. The pertinent sentence in Article III, §5 consists of two distinct clauses: The first clause states that "the Court of Appeals shall have original jurisdiction to review the legislative districting of the State"; the second authorizes the Court to "grant appropriate relief, if it finds that the districting of the State is not consistent with the requirements of either the Constitution of the United States of America, or the Constitution of Maryland." Hence, although Article III, §5 refers only to remedying violations of the federal and state constitutions, it does not expressly bar jurisdiction over a statutory claim under the Voting Rights Act.

Even the provision about remedies should not be construed too literally:5

[W]hile the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee .... [I]t is an accepted canon of constitutional construction that such instruments are to be liberally construed to accomplish the purpose for which they were adopted.

Norris v. Mayor & City Council, 172 Md. 667, 675-76, 192 A. 531 (1937).

Article III, §5 was framed at a time when Section 2 of the Voting Rights Act was simply not a factor in State redistricting litigation.6 And it is highly unlikely that the framers and the voters intended that §5 freeze Court of Appeals jurisdiction in reapportionment cases only to claims that were likely to be brought at that particular time. Cf. Kindley v. Governor, 289 Md. 620, 625, 426 A.2d 908 (1981) ("Where, as here, a statute is phrased in broad general terms, it suggests that the legislature intended the provision to be capable of encompassing circumstances and situations which did not exist at the time of its enactment.")

Furthermore, the purpose of original Court of Appeals jurisdiction, the prompt and final settlement of redistricting cases, could be frustrated if jurisdiction in a legislative redistricting case were bifurcated between a circuit court and the appellate court. See State Administrative Board of Election Laws v. Calvert, 272 Md. at 680-82.

Finally, we draw support for our conclusion by analogy to the construction given a federal statute, 28 U.S.C. §2284, which provides for the convening of a three-judge district court "when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." The express reference to constitutional claims in 28 U.S.C. §2284 has not prevented three-judge federal courts from also entertaining pendent Voting Rights Act claims.7 In our view, Article III, §5 should receive a similar construction.

5 In any event, a plausible literal construction of Article III, §5 is that it extends to federal statutory claims like Section 2, enforcement of which is authorized directly by the Fourteenth and Fifteenth Amendments to the U.S. Constitution.
6 Although an earlier version of Section 2 existed in 1970 and was part of the law enacted by Congress in 1965, it is safe to say that as of 1970 most Voting Rights Act litigation involved Section 5 of the Act or states in the Deep South. In fact, the first reported decision involving a Voting Rights Act claim in Maryland was decided in 1986 and dealt only with a procedural issue. United States v. City of Cambridge, Maryland, 799 F.2d 137 (4th Cir. 1986).
7 In Allen v. State Board of Elections, 393 U.S. 544, 583, n. 1 (1969), Justice Harlan noted in a concurring and dissenting opinion that:

While I consider the question of whether §5 authorizes a three-judge court a close one, it is clear to me that we would not avoid very many three-judge courts whatever we decide [under the Voting Rights Act] ... [Generally a plaintiff attacking a state statute ... could also make at least a substantial constitutional claim that the state statute is discriminatory in its purpose or effect. Consequently, in the usual case a three-judge court would always be convened ....

See also Armour v. State of Ohio, 925 F.2d at 988-89.

IV
Conclusion

In summary, it is our opinion that federal courts do not have exclusive jurisdiction over private claims premised upon a violation of Section 2 of the Voting Rights Act. The Court of Appeals has original and exclusive State court jurisdiction to hear and decide such private party challenges to the State legislative redistricting plan.

J. Joseph Curran, Jr.
Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice