ANNAPOLIS, Md. (WBFF) — Maryland’s highest court wrestled Thursday with whether a controversial congressional redistricting amendment should remain on the November ballot, as attorneys debated missed election deadlines, potentially confusing ballot language and what judges can do to fix any problems they find.
The arguments came on the same day Maryland election officials planned to begin printing ballots, adding urgency to a legal fight that has already resulted in two circuit court judges ruling against Question 3.
The proposed constitutional amendment seeks to set parameters around how Maryland draws congressional boundaries and allows the General Assembly to give the Supreme Court of Maryland original jurisdiction over congressional redistricting cases.
The ballot question itself would not redraw Maryland’s congressional map.
During roughly two hours of arguments Thursday, justices repeatedly questioned attorneys about whether election deadlines passed by the General Assembly apply to the legislature itself, whether voters can understand the practical effect of Question 3 and what remedy is available if the court finds problems with the ballot language.
Assistant Attorney General Daniel Kobrin, arguing for the state, maintained that statutory requirements cannot prevent the constitutional amendment process from moving forward.
“The statutes don’t apply to the General Assembly,” he said.
At one point, a justice questioned whether it is in the public interest for a ballot question to be written so broadly that members of the public, “perhaps not even lawyers,” could determine its potential outcome.
Kobrin pushed back, saying the language was not too broad.
Attorney Jeffrey Clark, representing the Oversight Project and Republican lawmakers who brought the initial challenge in Anne Arundel County, argued the General Assembly failed to comply with mandatory election law requirements and cannot fix those missed deadlines after the fact.
“They can’t go back in time and do what they were supposed to do,” Clark told the court.
“I don’t see how you could do anything other than strike the question, because anything else is going to mean that they get a mulligan,” Clark added.
In the second case before the court, attorney Allen Dickerson argued the General Assembly’s decision to not abide by the deadlines and procedures contributed directly to the problems now unfolding in court.
“By short circuiting this process, by not having the notice and comment period, by not giving the Secretary of State that opportunity,” Dickerson said, lawmakers eliminated “all of these checks and balances that the legislature itself created.”
“They have led to exactly the outcome that they feared,” Dickerson added. “They have drafted unconstitutional ballot language.”
Outside the courtroom, supporters and opponents of Question 3 walked away with sharply different interpretations of what they heard from the justices.
Del. Kris Fair, a Democrat who supports the amendment, said he was “cautiously optimistic” and believed the court appeared interested in whether the legal challenges should prevent Marylanders from ultimately deciding the issue.
“The court seemed very interested in the idea that the citizens of Maryland get the right to make this decision at the end of the day,” Fair said.
Fair also rejected arguments that voters would not understand the language they see on the ballot, saying the question “cannot be much clearer than how it is written.”
“If you start writing for every single possible nuanced argument for how something can be misinterpreted, you’re going to build a question that nobody can understand logically,” he added.
Fair said he also took note of the justices’ discussion about whether changing the ballot language could be an alternative to throwing Question 3 off the ballot altogether.
“If the courts get there by looking at it and going, we want to rewrite the question, but we want to get it to the voters, I’m okay with that,” Fair said.
Members of the Maryland Freedom Caucus walked away from the hearing with a different view of the path forward. They argued lawmakers missed deadlines the General Assembly itself established and that there is now too little time to cure those problems before ballots must be printed.
“There unquestionably missed their dates that the General Assembly imposed on themselves. They missed it by over a month,” said Del. Matt Morgan, arguing lawmakers “cut due process away from voters and constituents.”
Del. Kathy Szeliga said she does not see a realistic path for rewriting the ballot question at this point.
“They are out of time,” she said.
Del. Ryan Nawrocki argued that having the court rewrite language drafted by the General Assembly could raise another constitutional concern.
“The legislature drafted the language,” Nawrocki said. “So, for the court to come in and say that we did that improperly and to overwrite our language, the only people that can do that is the legislature.”
“The only mechanism for the court to correct this is to toss this off the ballot,” he added.
The legal debate is unfolding against a rapidly tightening election calendar.
State Board of Elections Administrator Jared DeMarinis said the state certified the ballot Monday with Question 3 included and planned to send ballots to the printer Thursday. Though as of early Thursday afternoon, printing had not started.
“We knew that the court case was here, and we have until the end of the day to submit it over to our printer to make sure that we can begin printing the ballots,” DeMarinis said.
Election officials are also facing a Sept. 17 federal deadline to begin sending ballots to military and overseas voters.
DeMarinis said nearly 600,000 Marylanders have requested mail-in ballots in the first batch election officials must prepare, making any last-minute change to Question 3 a logistical concern.
If the Supreme Court orders the ballot language changed, DeMarinis said election officials would work to implement the decision as quickly as possible.
“We expect an expedited, at least an order from the court,” DeMarinis said, “because they understand our deadlines.”
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