A proposed ballot question that could set new standards for the way congressional maps are drawn in Maryland will go to voters in November, the Supreme Court of Maryland ruled Thursday evening.
The order from a divided high court overturned two lower courts that had sided with state Republicans who challenged the proposed amendment to the Maryland Constitution. The Thursday evening order came as an end-of-the-day deadline to finalize the ballot for printing approached.
In an eight-page order written for the majority, Chief Justice Matthew J. Fader agreed with judges in Anne Arundel and Dorchester counties who ruled that the ballot question as written by the Maryland General Assembly “is misleading and therefore violates due process requirements.”
In particular, Fader said the majority found fault with the question’s reference to “applicable federal laws” as the criteria for determining congressional boundaries.
Despite that, Fader wrote that judges in both cases were wrong to have issued injunctions last week blocking the question.
“An available remedy in this case that is appropriately respectful of the General Assembly’s constitutional authority to propose constitutional amendments to the voters of this State is to substitute the purpose paragraph … for the text of the question,” the majority opinion states.
In a three-page dissent, Justice Steven B. Gould, writing for himself and Senior Justice Glenn T. Harrell, said he would have affirmed the decisions of both lower courts and issued a scathing rebuke of the ballot question as passed by the Democratic legislative majority.
“I am skeptical … the Election Law Article authorizes us to draft ballot language,” Gould wrote. “Even if we had such authority, I am perplexed that we would do so when, as here, a majority of the Court has determined that the General Assembly drafted and sought to submit a misleading ballot question to voters.
“The General Assembly claimed the prerogative to draft the question; it should bear the consequences of drafting a misleading one. It is not our job to rewrite the question for the General Assembly,” Gould wrote.
Gould went on to say the new question written by the majority “remains misleading.”
“Maryland voters reading it would not understand that the criteria being removed include the guarantees of the Declaration of Rights — the collection of sacred rights that protect Marylanders against government overreach,” he wrote.
Gould said that if voters approved the question in November, the “Declaration of Rights would provide no criteria against which a congressional districting plan may be measured.”
The result, he said, would be the loss of any ability by any Marylander to “challenge a plan drawn to disadvantage a religious minority or punish citizens for their political expression or association. These are not redundant guarantees,” Gould wrote.
Gould and Harrell also agreed with the lower courts that the legislature missed a legal deadline to approve the proposed ballot language and improperly included two subjects in the one ballot question.
But the majority said the circuit courts were wrong to claim those errors by the General Assembly. Thursday’s order represents only a part of the majority’s thinking on the appeal. Fader wrote that a full opinion would be filed later.
The order followed a two-hour hearing Thursday that was held exactly one month after House Bill 2100 was introduced in the House of Delegates and the start of a whirlwind two-day special session of the Maryland General Assembly.
Justices on the Supreme Court of Maryland had questions for both sides during two hours of arguments Thursday. The court was working on deadline: An end-of-day deadline for election officials to finalize the November ballot for printing.
Thursday’s hearing comes exactly a month after HB 2100 was introduced in the House, kicking off a whirlwind two-day special session on the redistricting question.
Democratic super majorities in both the House and Senate easily passed the amendment along party lines.
The proposal would supersede a ruling by Judge Lynne Battaglia in a 2022 congressional redistricting challenge. Her ruling — which is not precedent — tied the recasting of congressional districts to compact and contiguous requirements in the Maryland Constitution.
The ruling was considered novel, as those standards had been thought to only apply to state legislative districts.
Even so, the Battaglia ruling was enough of a concern that Senate President Bill Ferguson (D-Baltimore City) iced a new congressional map that was approved by the House in February, as some states rushed to redraw congressional districts ahead of this fall’s elections.
But subsequent national politics — including a U.S. Supreme Court ruling that gutted racial protections of the landmark Voting Rights Act — led to a change of heart for Ferguson, who then backed a special session for the purposes of an amendment to the Maryland Constitution that would override the Battaglia ruling. Because it’s a constitutional amendment, the change would have to be approved by voters.
Days after the end of the special session, two challenges to the proposed amendment were filed, one in Annapolis and another in Cambridge.
Republicans opposed the bill in the legislature and in the courts because it is seen as clearing the way for Democrats to return as early as next year and engage in midcycle redistricting that could make all eight of the state’s congressional seat tilt toward Democrats.
Currently, Rep. Andy Harris (R-1st), who represents a district that includes all of the Eastern Shore, is the lone Maryland Republican in Congress.
In fast-tracked rulings over the past week, judges in both the Annapolis and Cambridge cases cited legal deficiencies in the process followed by the legislature, and missed statutory deadlines.
The judges also said there were violations of the Maryland Declaration of Rights citing concerns about due process and whether voters could understand that approval of the amendment would effectively eliminate future challenges to any new congressional map.
The circuit court rulings were immediately appealed to the Supreme Court.
Source
