Many laws aren’t enforced, including requirements that you pay payroll tax for baby sitters and clean your sidewalk after a snowstorm. But enforcing the Maryland Constitution, especially in regard to electoral rules, should not be a matter of discretion.
On Nov. 2, 2010, a statewide ballot referendum asked voters whether they wanted to convene a state constitutional convention (con-con). Under Maryland’s constitution, this referendum is automatically placed on the ballot every 20 years. Of those voting on the question, 54.4 percent voted yes. However, the governor and General Assembly refused to convene the con-con.
In 1851, Maryland held its first con-con since the Revolutionary War. Since the mid-1830s, Maryland citizens had fought to convene a con-con. Rural and slaveholding counties represented a declining proportion of Maryland’s population but controlled a majority of General Assembly seats. Fearing a con-con would lead to population-based reapportionment, the Assembly strongly opposed convening a con-con. Acutely aware of the Assembly’s opposition, con-con delegates designed an amending process they believed wouldn’t be dependent on the Assembly’s goodwill.
From 1851 until 1930, the majority required to convene a con-con was interpreted and implemented to mean an ordinary majority. With an ordinary majority, the number of yes votes is compared with the number of no votes and, if larger, the proposition passes. This is the default type of majority in America.
In 1930, the yes votes exceeded the no votes. But the rural delegates who controlled the Assembly feared a con-con would reduce their power via reapportionment. The Assembly hired a prominent constitutional lawyer who argued that the majority clause in Maryland’s constitution was ambiguous and could be read to mean a majority of those voting on any item on the ballot. Under this definition of a majority, nonvotes could be counted as “no” votes, thus defeating the referendum.
Given that courts at that time were opposed to entering the “political thicket,” the Assembly knew it merely had to provide a plausible-sounding constitutional interpretation. Perhaps because the few copies of Maryland’s mid-19th century con-con debates were largely inaccessible in 1930 and because no printed record existed of the debates from Maryland’s last con-con in 1867, the Assembly’s counsel also could provide a remarkably selective and biased interpretation of the con-con debates without being held accountable.
In 1950, Maryland voters once again approved the con-con referendum. Once again, citing the earlier legal opinion, the Assembly refused to convene a con-con.
In the early 1960s, judicial attitudes about entering the “political thicket,” especially in areas such as reapportionment where elected officials had a blatant conflict of interest with citizens, began to change. Consequently, democratic reform groups sued the state of Maryland, arguing it not only violated the U.S. Constitution’s requirement of “one-person, one-vote” but also violated its constitution’s majority requirement for convening a con-con. The con-con rules entered the lawsuit only as a vehicle to reapportion Maryland. Representing the state, Maryland’s attorney general argued that no constitutional violations had been made and, in any case, such political issues did not belong in court. The lower courts chose to evade the con-con issue, with the U.S. Supreme Court ultimately ruling in 1964 that Maryland had violated the U.S. Constitution and would have to reapportion its legislative districts.
The 2010 con-con referendum results, then, do not mark the first time Maryland’s incumbent politicians have refused to convene a con-con after a con-con referendum received an ordinary majority. However, this does mark the first time this has happened since the courts’ new willingness to take on such political issues. (Despite the reform groups’ request in the 1960s, no court has ever ruled on the legality of the Assembly’s self-serving majority interpretation.)
The 150-year odyssey of Maryland’s con-con provision is an amazing story of political corruption, special interest politics, media dysfunction and public ignorance. Marylanders owe a tremendous debt of gratitude to the courageous, tireless and visionary leaders who inserted this provision in Maryland’s 1851 Constitution. Despite implacable opposition from Maryland’s incumbent officeholders, the clause is now Marylanders’ best hope for fixing Maryland’s democratic deficits, including its inherently corrupt redistricting system and its legislators’ defiance of popular sentiment on legislative term limits. This is why I’m suing the state to force it to convene the con-con a majority of Marylanders voted for on Nov. 2, 2010.
–J.H. Snider, a resident of Severna Park, is the president of iSolon.org and has written widely on democratic reform. His email is snider@MarylandConCon.org