Maryland's Redistricting Amendment Has a Legal Problem

The attempt to rewrite the rules governing congressional redistricting in Maryland is the latest in a long line of election law fights across the country.

Maryland lawmakers want voters to approve a constitutional amendment that would change the rules governing congressional districts and potentially clear the way for another round of redistricting. But before the people can be asked to change their Constitution, the government must follow the law.

A Maryland circuit court has now ruled that the Democrat super-majority which controls the Maryland legislature did not.

On August 26, Judge Robert J. Thompson ruled the proposed constitutional amendment should not appear on the November ballot. The judge found multiple legal defects in the process used to advance HB 2100, including failure to comply with Maryland election law, misleading ballot language, and the inclusion of separate constitutional issues in a single amendment.

The case is moving quickly. The Supreme Court of Maryland will hear arguments in an immediate appeal of Maryland State Board of Elections v. Howell on September 3.

The issues go directly to whether Maryland officials can bypass safeguards established to protect voters when they ask the voters to amend their Constitution.

The Deadline Had Already Passed

Earlier this year, the Maryland General Assembly passed SB 29, legislation establishing requirements for statewide ballot questions. Governor Wes Moore signed the legislation on May 12, and it became effective June 1.

Among those requirements was a July 1 deadline for the Secretary of State to prepare and certify specified information and content concerning statewide ballot questions. The legislation also created public notice and public-comment requirements designed to provide Marylanders with information about proposed constitutional amendments.

But July 1 came and went without redistricting legislation being introduced, let alone with one passing.

HB 2100 was introduced in the General Assembly during a special session on August 3, more than a month after the deadline. The bill moved rapidly and passed the House and Senate before Governor Moore signed it on August 5.

That timeline is at the center of this case.

The General Assembly established safeguards for placing constitutional questions before voters. It cannot simply treat those safeguards as optional when they interfere with politicians’ preferred timetable.

Maryland's highest court has previously made clear that election officials facing a pre-election challenge must comply with their legal duties. In Stop Slots MD 2008 v. State Board of Elections, the court reaffirmed the rule from Dutton v. Tawes that, when election procedures are challenged before an election, election officials must “do what the law tells them to do.”

That principle should be straightforward. The government must follow election law too.

The General Assembly Cannot Simply Say “Notwithstanding” the Law

HB 2100 presents another serious problem. The legislation directs that the proposed amendment be submitted to voters “notwithstanding any other provision of law.”

Consider what that means in context.

The General Assembly passed legislation establishing procedures governing ballot questions. Those requirements became law. The deadline passed. Then legislators introduced a constitutional amendment and attempted to place it on the ballot anyway by declaring that it should proceed notwithstanding other provisions of law.

If allowed to stand, it would significantly weaken and make a mockery of the protections Maryland established for its own voters. The state argues both that the Maryland Constitution does not impose a deadline preventing the General Assembly from proposing an amendment and that the statutory requirements do not constrain the legislature when it writes the ballot question itself. Judge Thompson rejected that position.

Election safeguards mean little if the government can discard them after a deadline has passed. This is particularly important because HB 2100 is not ordinary legislation. Marylanders are being asked to change their constitution.

The Maryland Constitution gives the people the final decision on constitutional amendments. The General Assembly proposes an amendment, but the voters must approve it. That makes compliance with the rules governing the process even more important.

The Ballot Language Misleads Maryland Voters

The legal problems do not stop with the process. The ballot language itself presents a separate concern.

HB 2100 tells voters that the proposed amendment “clarifies” that certain standards in the Maryland Constitution apply only to districts used to elect members of the General Assembly. But that description does not tell voters what is actually changing.

In 2022, the Circuit Court for Anne Arundel County held in Szeliga v. Lamone that the Maryland constitutional requirements governing compactness and related districting principles do apply to the state’s congressional map. The court invalidated the 2021 map, and the General Assembly subsequently adopted a new congressional map.

As Judge Thompson explained in his ruling this week, Szeliga held that the same constitutional districting requirements apply to state legislative and congressional districts. Judge Thompson therefore concluded that the current legal status quo in Maryland is that those requirements apply to both. HB 2100 would change that.

Calling the amendment a “clarification” suggests to voters that they are confirming an existing rule. Judge Thompson, however, cut through the smokescreen and concluded that they are instead being asked to rewrite the constitutional rules that currently govern congressional redistricting. That is much more than clarification.

In Kelly v. Vote Know Coalition of Maryland, Inc., Maryland’s highest court has required ballot language to inform voters, accurately and without misleading them, of the nature of the measure before them.

A constitutional amendment should rise or fall based on what it actually does. Voters should not have to decode that for themselves after reading ballot language mischaracterizing a substantive constitutional change as a mere clarification.

Voters Are Also Being Asked Two Different Questions

There is yet another constitutional issue. Article XIV of the Maryland Constitution provides that a proposed constitutional amendment may embrace “only a single subject.”

HB 2100 changes the constitutional rules governing congressional district boundaries. But it also authorizes the General Assembly to grant original jurisdiction to the Supreme Court of Maryland to review the state’s congressional districting plan. Those provisions may both involve congressional redistricting, but they present different constitutional choices.

A voter could support changing the standards governing congressional districts while opposing an expansion of the Supreme Court of Maryland’s original jurisdiction. That’s two different things.

Another voter could support giving the Supreme Court original jurisdiction over congressional redistricting disputes while wanting to retain existing constitutional restrictions on how congressional districts are drawn. HB 2100 requires a voter to accept or reject both together. Again, two different things.

Judge Thompson rightly concluded that these are separate constitutional issues. Article XIV's single-subject requirement is intended to prevent this very problem: distinct constitutional propositions being improperly combined. The question for the Supreme Court of Maryland will include whether changing congressional districting standards and changing the Court’s original jurisdiction are sufficiently related to constitute one constitutional subject.

Maryland’s Constitution Belongs to the People

There is a larger principle behind each of these legal problems. Article 6 of Maryland's Declaration of Rights states that those entrusted with legislative and executive power are “Trustees of the Public,” and, as such, accountable for their conduct. That accountability matters most when government is exercising significant power, and changing a constitution certainly qualifies.

The Maryland General Assembly has the authority to propose constitutional amendments. Legislators can make their case for changing Maryland's congressional redistricting rules. They can ask voters to approve those changes. But the authority to propose an amendment is not the authority to disregard the law governing how that amendment reaches the people.

The Constitution belongs to Marylanders, not the politicians temporarily entrusted with governmental power. That is why abiding by deadlines and producing accurate ballot language are so important. Voters must be able to understand what a constitutional amendment will actually do, and procedural safeguards cannot become optional whenever following them is inconvenient. Why even have a safeguard then? If this can stand, the only real reason for election law “safeguards” is to give the people a false sense of the legal system’s integrity.

What Happens Next

The Supreme Court of Maryland is scheduled to hear arguments on September 3 in the state’s expedited appeal. The court will consider whether Question 3 can remain on Maryland’s November 3 general election ballot despite the legal defects identified by the circuit court.

If election safeguards can be written into law and then bypassed when they interfere with a political objective, those safeguards offer voters little protection. The rule of law requires something more. Government officials must follow the rules that govern elections. Voters must receive an accurate explanation when they are asked to change their Constitution.

Those principles should apply regardless of which political party holds power. Maryland's election laws are not suggestions. Neither is its Constitution.

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