A Divided Maryland Supreme Court Keeps Question 3 on the Ballot and Rewrites Its Wording

A divided Supreme Court of Maryland ruled Thursday evening that Question 3, the proposed congressional redistricting amendment, will go to voters in November, but rewrote the wording those voters will see after finding part of it misleading.

Republican legislators had persuaded two lower courts to block the question outright. Thursday’s order set both of those rulings aside. It landed as an end-of-day deadline to finalize ballots for printing approached, Maryland Matters reported. Question 3 is a statewide measure, so it appears on every Montgomery County ballot.

A Divided Court

Chief Justice Matthew J. Fader wrote an eight-page order for the majority, according to Maryland Matters. Fader agreed with the circuit court judges that the question as written by the General Assembly is misleading and violates due process, singling out the clause that pointed voters to “applicable federal laws” for congressional boundaries. But he wrote that both judges were wrong to block the question outright.

Rather than strike it, the majority swapped in the purpose paragraph lawmakers had themselves attached to the legislation. The order was not public at the time of writing; Maryland Matters, which reviewed it, quoted the majority as follows.

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.

Two justices disagreed. Justice Steven B. Gould dissented across three pages, joined by Senior Justice Glenn T. Harrell, and would have upheld both circuit courts, leaving the question off the ballot entirely, Maryland Matters reported.

Fox45 reported the court also rejected the challengers’ argument that the measure violated Maryland’s rule that a constitutional amendment cover only a single subject.

What Changed on the Ballot

The original question

The proposed Constitutional Amendment clarifies that certain standards in the Maryland Constitution apply only to districts used to elect members of the General Assembly; authorizes the General Assembly to grant original jurisdiction to the Supreme Court of Maryland to review the congressional districting plan of the State; and requires the criteria for boundaries of congressional districts to be determined by applicable federal laws.

What voters will now see

FOR the purpose of clarifying that certain requirements apply only to districts for the election of members of the Senate of Maryland and the House of Delegates; authorizing the General Assembly to grant original jurisdiction to the Supreme Court of Maryland to review the congressional districting plan of the State; and providing that nothing in the Maryland Constitution provides applicable criteria for the boundaries of a congressional districting plan.

The operative change is the final clause. The original told voters federal law would supply the criteria for congressional boundaries. The replacement says the Maryland Constitution supplies none.

What the Amendment Would Do

Question 3 comes out of House Bill 2100, passed in a special session. It would establish that Maryland’s constitutional districting standards, including the requirement that districts be compact and contiguous, govern only General Assembly districts and not congressional ones. It would also let the legislature grant the Supreme Court of Maryland original jurisdiction over challenges to a congressional map, so such a case could begin at the top rather than climb through the lower courts. The amendment does not itself grant that jurisdiction; it authorizes the General Assembly to do so.

The practical target is a 2022 decision by Judge Lynne Battaglia, which struck down a congressional map by reading the constitution’s compactness language to apply to congressional districts. Maryland Matters has reported that ruling was not binding precedent but was enough to stall Democratic efforts to redraw the state’s eight congressional seats.

Separately from Question 3, the General Assembly passed a new congressional map last month. NOTUS reported that map would favor Democrats in all eight House districts and would not take effect until at least 2028. The map and the amendment are different measures, and Question 3 asks voters only about the constitutional standards and the jurisdiction question.

The Reaction

Attorney General Anthony G. Brown, whose office defended the amendment, said in a statement that his team had carried out its responsibility to defend measures the General Assembly enacts.

I commend the attorneys and staff of the Office of the Attorney General who successfully defended the constitutional amendment approved by the General Assembly. As Maryland’s chief legal officer, I have a responsibility to defend the constitutionality and legal sufficiency of measures enacted or approved by the General Assembly when they are challenged in court, and our team carried out that responsibility with skill and professionalism.

With today’s ruling, the question will remain on the ballot, and Maryland voters will have the opportunity to decide the matter for themselves in November.

The ruling gave the state a partial win. The question goes to voters, as Brown’s office argued it should, though the court also found the ballot language misleading and ordered it replaced.

Maryland Republican Party chair Nicole Beus Harris said she was disappointed the court allowed what she called “a reworded gerrymandering amendment” onto the ballot, writing on X that the party is confident it can defeat the measure in November, NOTUS reported.

What Happens Next

Both circuit courts were ordered to enter new orders consistent with the decision no later than Friday, September 4, Fox45 reported. The State Board of Elections is then required to replace the Question 3 language.

The timing is tight. The State Board certified the content and arrangement of the November 3 general election ballots on August 31. Maryland courts have now moved in both directions on that ballot inside a single week: a Montgomery County Circuit Court judge on Thursday kept a county spending-cap question off the same ballot, while the state’s highest court kept this one on it.

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