Maryland Republicans challenging a proposed state constitutional amendment on how congressional districts are drawn won an initial courtroom skirmish Wednesday, when an Anne Arundel County Circuit judge found multiple legal problems with how lawmakers passed the bill and the wording of a proposed ballot question.
The 10-page decision Wednesday from Judge Robert J. Thompson comes almost 24 hours after the conclusion of a daylong hearing in Annapolis that focused on process and whether or not lawmakers erred as they rushed a constitutional amendment to Maryland voters.
In his ruling, Thompson said that while the Maryland Constitution imposes no blackout period for when it can propose a constitutional amendment, that power is ultimately governed by the calendar as well as laws it has passed.
“The legislature has passed laws to codify the ordinary process and procedure for submitting proposed constitutional amendments to the people and that procedure defines the ordinary due process (notice) when the people are asked to weigh in on something as important as modifying the state’s constitution,” Thompson wrote.
The ruling represents an initial win for a set of plaintiffs that included Mike Howell, president of the the conservative Project Oversight, members of the Maryland Freedom Caucus and leaders of the Senate Republican Caucus.
Republicans in their lawsuit argued that the General Assembly was constrained by law that established both a timeline and deadline for ballot questions. The law also mandates that the language of the question be simplified for voters to understand. In their challenge, the plaintiffs argued that the Democrats in the General Assembly were bound to follow that law and its July 1 deadline.
An attorney for the state argued that the General Assembly was not constrained by the law and had the ability to pass a proposed amendment that included a mandated question for the ballot and so-called “notwithstanding” language meant to exempt this bill from the deadline.
Thompson agreed with the plaintiffs.
“Because the legislature did not follow the very laws it enacted, the court finds the enactment of HB 2100 to be legally deficient,” the judge wrote.
Thompson issued an injunction preventing the question from being placed on the ballot, but stayed his order pending an expected appeal to the Supreme Court of Maryland.
On Wednesday afternoon, Assistant Attorney General Daniel Kobrin told the Maryland State Board of Elections that a notice of appeal was filed with the Supreme Court of Maryland. Oral arguments are expected to take place on Sept. 3.
Delegate Matt Morgan (R-St. Mary’s), chair of the Maryland Freedom Caucus, said the Democratic supermajority in the General Assembly “A is still a chamber bound by the law.”
“Today the court made clear that three-fifths of the vote doesn’t buy you an exemption from the rules you wrote yourself. Maryland doesn’t answer to kings, and it doesn’t answer to a legislature that thinks it’s one,” Morgan said.
Democrats pushed the proposed amendment through a two-day special session in early August. Supporters said the change was needed to address a 2022 decision on the state’s newly drawn congressional districts.
In that case, Judge Lynne Battaglia said congressional districts must be compact and contiguous and mindful of geographical features such as the Chesapeake Bay. In was a novel ruling as that standard was once thought to only apply to state legislative districts.
Rather than challenge Battaglia’s ruling at the time, Democratic lawmakers and then-Gov. Larry Hogan (R) reached a compromise, changing a map that had eight Democratic-leaning districts to the current map that has one Republican-held seat.
While Battaglia’s ruling was not precedent, Senate President Bill Ferguson (D-Baltimore City) cited it as a reason for not moving forward with House bill bill passed in February that redrew the districts to give Democrats a chance at controlling all eight congressional seats. The bill stalled in the Senate when Ferguson buried it in the Senate Rules Committee.
Gov. Wes Moore (D), a vocal supporter of the midcycle redistricting effort, unsuccessfully attempted to bring public and political pressure to bear on Ferguson to move the maps bill during the regular legislative session. Earlier this month, Moore praised the passage of the proposed constitutional amendment and, despite not being legally required to do so, ceremonially signed the bill.
In a statement Wednesday, a spokesperson for the governor said Moore respectfully disagreed with the Thompson decision.
“At a moment when states across the country are manipulating congressional maps to silence voters and undermine fair representation, Maryland cannot afford to sit on our hands,” the statement said. “We believe Maryland voters deserve the opportunity to make their voices heard, and we will continue fighting to ensure they can.”
A ‘defective’ question
In passing the amendment in August, supporters called it a “clarification,” saying it made it clear that the compact and contiguous standard did not apply to congressional maps.
Thompson called use of the word clarifying “misleading,” and cast doubt on state arguments that the standard had only ever applied to legislative districts.
“There is nothing in the record to suggest that was ever a common understanding,” Thompson wrote, adding later: “As such, the word ‘clarifying’ is intentionally misleading, and this should disqualify the ballot question as currently written.”
Thompson added “the question is defective because not only does it ostensibly intend to ‘clarify’ the application of compactness requirements, but also seeks to confer original jurisdiction over congressional redistricting cases to the Supreme Court of Maryland.”
Thompson said having the state’s highest court handle such cases “would be ideal” but said it’s a separate issue from the compactness requirements.
Senate Minority Leader Stephen S. Hershey (R-Upper Shore), a plaintiff in the case, called the decision “an important first victory for the rule of law and for the integrity” of the election process in the state.
“The Legislature cannot pass election laws in the spring and ignore them in the summer simply because they became inconvenient,” Hershey said in a statement. “This case has never been about denying voters a voice. It’s about ensuring that before Marylanders are asked to amend their Constitution, the State first follows the Constitution itself.”
‘MAGA hatchetmen’ and a judicial audition
Thompson’s ruling was not a surprise. He closed Tuesday’s hearing expressing concern about how the Democratic supermajority pushed the bill through during this month’s special session.
Ferguson said Wednesday that the General Assembly “acted squarely” within the Maryland Constitution.
“This constitutional amendment presents an important opportunity to resolve legal questions that could have arisen had the General Assembly simply adopted a new congressional map, potentially forcing the courts to weigh in after the fact on an actual map and its consequences,” Ferguson said in a statement.
“Marylanders deserve the right to vote on this question,” he said. “I expect this case to receive prompt review, and I look forward to a clear ruling that affirms the General Assembly’s constitutional authority.”
Should the amendment go to voters and be approved, Republicans fear it will add Maryland to a flurry of hyperpartisan midcycle redistricting in both Democratic and Republican states as they jockey for advantage in November’s congressional elections.
The lone Republican in Maryland’s current congressional delegation, Rep. Andy Harris (R-1st), is the likely target of any effort to redraw maps. Some Democrats, including Moore, have called the push for new maps an effort to make the districts “more competitive,” but the intent, based on one map approved in February by the House, focused on pushing more Democratic voters into Harris’ district.
Despite the setback Wednesday, backers of the proposed amendment said they believe they will ultimately win on appeal.
“This temporary maneuver only underscores how keen the opponents are to avoid bringing this question to voters,” said Del. Kris Fair (D-Frederick) in a statement. “If they are so confident in their position, why are they so afraid to let Marylanders vote? The Supreme Court must overturn this partisan ruling and let the people of Maryland vote on Question 3.”
A statement issued by the Fight Back MD, which is leading the election campaign to pass the proposal, criticized the decision by Thompson as political, noting he was appointed by Hogan in 2018.
“Opponents of Question 3 could have made their case to Maryland voters. Instead, they brought in MAGA hatchetmen to argue their case, went before a Hogan-appointed judge auditioning for a federal appointment from Trump, and asked a courtroom to take the decision away from millions of Marylanders,” said Joe Francaviglia, political director of Fight Back MD. “They may have won a ruling today, but they have not won the right to decide the future for Marylanders.”
An appeal would further tighten an Aug. 31 deadline for the Board of Elections to finalize the roughly 1,200 different ballot versions that will be used by voters across the state.
The case in Anne Arundel County is one of two challenges to the proposed constitutional amendment. A separate challenge filed in Dorchester County is now scheduled for a hearing Thursday morning in Cambridge in front of Administrative Judge S. James Sarbanes.
Sarbanes, appointed to the bench in 2014 by then Gov. Martin O’Malley (D), is the nephew of former U.S. Sen. Paul Sarbanes (D-Md.).
