Maryland Supreme Court weighs redistricting amendment as ballot deadline looms

BALTIMORE — Maryland Supreme Court justices pressed both the state and Republican challengers Thursday over whether a proposed congressional redistricting amendment should remain on the November ballot, questioning the state’s interpretation of election law while asking whether legal flaws should prevent voters from having a say.

Across back-to-back arguments in two expedited appeals, the justices scrutinized how Question 3 reached the ballot and whether voters are being adequately told what it would do.

The constitutional amendment, approved by Democratic lawmakers during an August special session, could clear the way for the General Assembly to redraw Maryland’s congressional map before the next census. Republicans in Anne Arundel and Dorchester counties successfully sued to block the measure, sending both cases to the state’s highest court.

But the justices repeatedly returned Thursday to a question that could determine the referendum’s fate: Even if something went wrong, does that mean Question 3 must come off the ballot?

Assistant Attorney General Daniel Kobrin, representing the state in both cases, argued lawmakers were exercising their constitutional authority to propose an amendment. He said if it finds the ballot language inadequate, justices could order clearer language rather than prevent voters from considering it.

Do election deadlines bind lawmakers?

The majority of the first appeal centered largely on whether the General Assembly had to follow election-law requirements governing statewide ballot questions.

“The statutes cannot stop the constitutional process,” Kobrin said, adding that lawmakers retain authority under the Maryland Constitution to propose amendments and determine how they are presented to voters.

Several justices questioned that distinction, including whether lawmakers could sidestep requirements they had previously assigned to the secretary of state. “Where in the text … does it say that it’s not binding when the General Assembly drafts it?” one justice asked.

The dispute partly stems from election-law changes lawmakers enacted earlier this year governing how constitutional amendments and other statewide questions reach the ballot, including a July 1 certification deadline and a 15-day public comment period before ballot language is finalized.

Still, justices pressed the challengers over why missed deadlines should prevent voters from considering an amendment the General Assembly approved for the ballot.

Attorney Jeff Clark, representing plaintiffs in the Anne Arundel case, argued the General Assembly cannot “go back in time” to satisfy requirements that lawmakers made impossible to meet by waiting until August to act. “The legislature itself set these deadlines,” he said, arguing lawmakers cannot enact election safeguards and then disregard them when they become inconvenient.

What are voters being told?

The second appeal, brought by Eastern Shore lawmakers, shifted the court’s attention from how Question 3 reached the ballot to what voters are being told about its effect.

Question 3 would clarify that Maryland constitutional standards requiring legislative districts to be compact and contiguous and respect political boundaries only apply to districts used to elect members of the General Assembly. It would also allow lawmakers to give Maryland’s highest court original jurisdiction over congressional map challenges and require congressional district boundaries be governed by applicable federal law.

The amendment follows a 2022 court ruling, which relied on state redistricting requirements and Maryland’s Declaration of Rights, that struck the state’s proposed congressional map as an unconstitutional partisan gerrymander.

One justice pressed the state on whether Question 3 was intended to make those protections inapplicable to congressional redistricting.

“Yes, that is their intent,” Kobrin said.

“Where is that? Where are the voters? Where is that explained?” the justice responded.

Kobrin argued voters could reasonably understand from the question that federal law, rather than Maryland constitutional protections, would govern congressional redistricting. He acknowledged the language “could be clearer” but said that does not make it legally insufficient.

Strider Dickson, representing plaintiffs in the Dorchester case, argued that omission is precisely the problem. “What the General Assembly has asked the people to do,” he said, is give up state constitutional protections as they apply to congressional redistricting without clearly telling voters that would be the result.

Dickson separately argued that Question 3 improperly combines multiple constitutional changes into a single amendment. Kobrin countered that all of its provisions concern the same subject: how Maryland conducts redistricting.

Could the court rewrite Question 3?

Several justices asked Dickson whether replacing disputed language could resolve concerns that the question is misleading.

But Dickson resisted, arguing that having judges rewrite the ballot question could raise its own separation-of-powers concerns. If the language is unconstitutional, he said, the court should strike Question 3 altogether and allow lawmakers to reconvene and try again.

The timing, however, leaves little room for either outcome. Dickson told the court that affidavits in the case identified Friday as a “drop dead date” for changes to election materials.

The court did specify when it would rule. But both appeals continue to move on an expedited schedule as election officials prepare ballots ahead of a Sept. 19 federal deadline to begin sending them to military and overseas voters. That means a decision on whether Question 3 survives — and potentially what voters will see when they cast their ballots — is expected quickly.

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