In an Oct. 21 gubernatorial debate with Republican challenger Robert Ehrlich, Maryland Gov. Martin O’Malley was asked if he supported convening a constitutional convention – a “con-con” – in Maryland. He replied: “If that’s what people want to do, then that’s what we should do.” O’Malley undoubtedly made that promise confident that the con-con referendum would fail (none has succeeded anywhere in the United States since 1984), allowing him to costlessly appease con-con supporters.
Now that the referendum has received 54 percent of the vote, the governor should be held accountable for that promise.
Even though more people voted for this referendum than against it, a con-con probably will not be called automatically, thwarting the will of the people. That’s because a quirky rule written into Maryland’s constitution essentially counts blank votes on this question as no votes.
This undemocratic rule exists because incumbent legislators from both parties hate con-cons, which serve as a check on their power. As George Mason, one of the delegates to the 1787 U.S. con-con, put it in arguing for a con-con mechanism for amending the Constitution: “It would be improper to require the consent of the [legislature], because they may abuse their power and refuse their consent on that very account.”
The last Maryland con-con was convened after a 1964 U.S. Supreme Court ruling that the legislature had for decades knowingly violated the principle of one person, one vote. Over the years, residents had migrated from rural to urban areas, but legislative districts had remained unchanged. As a result, each rural legislator came to represent far fewer people than each urban one. Rural legislators had for decades refused to implement one person, one vote because it would have cost them seats in the General Assembly.
To reduce the chances of a con-con ever coming to pass, lawmakers have long pushed for the innocuous-sounding requirement that winning a majority of all voters taking part in an election, with non-votes treated as no votes, would be necessary merely to convene a con-con. Remarkably, of the 14 states with constitutionally mandated automatic con-con referendums, only two have such a majority election requirement (and in the second state, Hawaii, the language can be read either way).
Maryland legislators’ dislike of the con-con referendum was also reflected in the language they employed for the 2010 referendum. The question – “Should a constitutional convention be called for the purpose of changing the Maryland Constitution?” – conveyed the impression that the participants of the con-con would have the power to alter the constitution themselves, rather than to merely propose amendments for voter approval. The ballot also made no mention of the fact that a non-vote would be treated as a no vote. This was not only a misleading attempt to suppress the yes vote but possibly an illegal one.
It didn’t have to be that way. In 1966, Maryland Gov. J. Millard Tawes responded to the Supreme Court’s rebuke by asking the legislature for a con-con referendum. To get around the “majority of all voters” requirement, he asked the legislature to hold a separate, special election simultaneously with the regular election. The 1966 con-con only won 26 percent of the total election vote, but it only needed to win a majority of those weighing in on the question. It passed because of Tawes’s commitment to one person, one vote.
If Tawes’s method had been used in 2010, the con-con would have passed. Even using the legislators’ self-serving supermajority requirement, it received 48.5 percent of the vote, almost twice as much as in 1966.
This doesn’t have to be the end of it. Because yes voters outnumbered the no’s, the legislature has not only the power but also the moral duty to convene a con-con without another referendum. O’Malley should follow Tawes’s precedent in upholding the principle of one person, one vote, and fight hard for a convention. Otherwise, this will be the first broken campaign promise of his new administration.
–The writer is president of iSolon.org and writes the MarylandConCon.org blog.