Martineau, Robert, “Maryland’s General Assembly is Not Above the Law,” MarylandConCon.org, April 2, 2012

Maryland’s General Assembly is Not Above the Law

Maryland’s Constitution mandates a referendum every twenty years on whether to call a constitutional convention. This mandate is an extension of article 1 of the Declaration of Rights, which provides that the people of the state “have at all times, the inalienable right to alter, reform or abolish their Form of Government, in such manner as they deem expedient.”

In 2010, Maryland voters took the first step in the reform process by voting in favor of a convention. Notwithstanding the constitutional direction that following a vote for a convention the General Assembly at its next session “shall provide by law for the assembling of such convention and the election of delegates thereto”, the Assembly has refused to carry out its constitutional duty. The question now is whether there is any other way to implement the fundamental right of the people to reform their state government.

Over 100 years ago the Pennsylvania Supreme Court in similar circumstances concluded that there were only two options available to the people: throw the rascals out in the next legislative election or armed revolution. The first is almost useless because not all members of the legislature are elected each year and there are other issues that may determine a legislative election. The second, of course, is neither desirable nor necessary.

In Maryland, there is another option. The Court of Appeals in 1967 ruled that members of the Assembly could serve as delegates to a convention, notwithstanding the constitutional ban against a person holding two public offices. The Court determined that a constitutional convention exists independent of the Constitution. It is, rather, a direct agent of the people and the means by which the people exercise their reserved and inherent right to reform their government. The Court further explained that in implementing the call for a convention, the Assembly is not carrying out its legislative function under the Constitution but merely assisting the people in their constitution making.

Following this logic, if the Assembly fails to implement the convention call, it is certainly appropriate for a Maryland court to fill the void. It would not be violating separation of powers because that doctrine arises under the Constitution. As the Court of Appeals has held, implementing a call for a convention is independent of the Constitution. Even under accepted constitutional law today, courts can properly take jurisdiction in political matters such as reapportionment, contrary to the views held in 1873.

The election districts for delegates are provided for in the Constitution. All a court needs to do is order the holding of the election, fix the date for their first meeting and their compensation (presumably that of Assembly members), and direct that the State pay the convention’s reasonable expenses. The convention would be on its own. If necessary, the court could also order an election on the convention’s proposals.

Popular sovereignty is, or should be, more than just a political slogan. It is at the heart of our system of government. The people’s right to hold a convention is so fundamental that it is generally held to exist even if not mentioned in an existing constitution.

The People of Maryland have spoken. An obstructive Assembly should not be allowed to stand in the way. If it will not assist the People in exercising their sovereign right, the Maryland courts should do so. They have no higher responsibility.

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–Robert J. Martineau is a retired professor of law, former Maryland assistant attorney general, and former secretary of Maryland’s 1967-68 Constitutional Convention. 

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Snider, J.H., “How to fix Maryland’s D-minus in corruption,” Washington Examiner, March 30, 2012

Snider, J.H., How to fix Maryland’s D-minus in corruption, Washington Examiner, March 30, 2012

Last week the State Integrity Investigation, led by the Center for Public Integrity, released its political corruption scorecard for the 50 U.S. states. Maryland received a D-, placing it in the bottom fifth of states. Specific grades include F for Legislative Accountability, F for Public Access to Information; D-minus for Lobbying Disclosure, D-minus for Redistricting, and D for Ethics Enforcement.

Unfortunately, the Maryland General Assembly will take minimal or no action to improve these scores. Why fix a system from which one benefits? Why reduce barriers to political competition that might help political opponents?

Anticipating the possibility of such perverse incentives in a legislature, the framers of both the Federal and Maryland constitutions created a mechanism — the constitutional convention — to allow the people to pass democratic reforms without the need for legislative approval.

Unfortunately, the constitutional convention provision in the Federal constitution was inserted at the last minute and is hopelessly vague. The version inserted in Maryland’s Constitution 64 years later (1851) was a considerable improvement. It included a provision that a referendum to convene one be placed periodically on the ballot (currently five times every century) without the need for Assembly approval.

Maryland’s framers knew that incumbent legislators, concerned about preserving their own power, would strongly oppose independent conventions. To eliminate the Assembly’s control, they devised the self-executing periodic referendum on a constitutional convention. Unfortunately, they didn’t anticipate the extent to which future Assemblies would nevertheless be able and willing to twist the framers’ intent and words to maintain control.

On Nov. 2, 2010, a majority (54.4 percent) of Marylanders voted in a statewide referendum to convene a state constitutional convention. But Maryland’s Governor and Assembly members, violating both their oath of office and Maryland’s Constitution, refused to convene one. This is why I am suing the state of Maryland.

This is the third time the Assembly has done this. The first two times, in 1930 and 1950, the primary goal of the Assembly was to avoid legislative reapportionment. The rural members who controlled the Assembly knew that reapportionment would shift power to the fast growing urban areas. Not until the U.S. Supreme Court ruled in 1964 that Maryland was violating the U.S. Constitution in this regard did the Assembly relent and convene a constitutional convention.

Since then, the democratic reform agenda has substantially changed. For example, only after the U.S. Supreme Court fixed the reapportionment problem did the problem of gerrymanders come to the fore.

Maryland’s democratic reform problem is that the institutional mechanism that the framers created to solve legislatively intractable democratic problems, as highlighted by the State Integrity Investigation report, has itself become the subject of political corruption. States with the ballot initiative have a way to get around this problem. But in Maryland, the only option to bypass the Assembly’s monopoly control of ballot propositions is the constitutional convention.

Sometimes a scandal erupts that is so embarrassing that the Assembly is forced to reform itself. But not all democratic problems, such as grotesque gerrymanders, are prone to vivid and timely scandal. Citizens shouldn’t have to wait hundreds of years for the perfect scandal to appear serendipitously. And even when a problem is blessed with something close to a perfect scandal, the resulting reform is often more face-saving than substantive.

Maryland reformers who want to improve Maryland’s score for democratic accountability must first address the root problem: the Assembly’s unwillingness to convene constitutional conventions as specified in Maryland’s Constitution. The so-called “con-con” is not a constitutional cobweb, but a vital part of Maryland’s Constitution. That is why I’m suing Maryland to make sure one occurs.

–J.H. Snider is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics. For more information, see MarylandConCon.org.

Snider, J.H., “Here’s why Maryland politicos must convene a constitutional convention,” Washington Examiner, March 12, 2012

Snider, J.H., Here’s why Maryland politicos must convene a constitutional convention, Washington Examiner, March 12, 2012

Maryland’s Constitution stipulates that every elected official must take an oath of office to “support the Constitution.” But for powerful elected officials, namely the governor and General Assembly members, Maryland’s courts don’t necessarily take such oaths seriously.

When an average citizen or low-level elected official breaks the law, it’s a crime. But when the powerful break their oath of office, it can magically become a “political question.”

Some scholars explain this double standard based on practical power politics. Since judges lack the power of the purse or sword to enforce their rulings and are often dependent for their appointments and perks on the goodwill of the governor and Assembly, they protect their careers by not poking the eye of the political branches.

Following precedent, this is arguably the underlying reason why Gov. Martin O’Malley and the Maryland General Assembly in Annapolis felt they could act with impunity when they violated Maryland’s Constitution and their oath of office by failing to convene a state constitutional convention (con-con).

Maryland voters approved the convening of a meeting on November 2, 2010, by a 54.4 percent majority of those voting on the referendum.

Con-cons were designed by the framers to deal with issues where legislators have a blatant conflict of interest with the public. It was understood that if legislators were given exclusive power to propose constitutional change, then any changes that would restrict their power would probably never get passed.

The con-con was to be the safety valve for this democratic reform malady. As George Mason explained, “it would be improper to require the consent of the National Legislature, because they may abuse their power and refuse their consent on that very account.”

Born of decades of bitter experience with an Assembly opposed to decennial reapportionment based on population, the framers of Maryland’s 1851 Constitution expanded on this principle by requiring that a statewide con-con referendum be periodically placed on the ballot — currently five times a century — regardless of Assembly opposition.

The issue for the public now is not whether to support convening a con-con; it is whether to support one standard for upholding the law for average citizens and a lesser standard for the powerful.

Moreover, even if Maryland’s officeholders weren’t violating their oath of office, they would be violating their democratic duty to represent their constituents. As Article I of Maryland’s Constitution states, “All Government of right originates from the People…; and they have, at all times, the inalienable right to alter, reform or abolish their Form of Government.”

A yes vote to convene a con-con merely requires that an election be held to elect delegates to a con-con, which may then propose constitutional reforms for ratification by popular referendum.

Maryland is the only U.S. state where the legislature, through a shamelessly self-serving and twisted interpretation of the framer’s intent, claims a larger popular majority is required to convene a con-con than ratify its recommendations.

This amounts to a claim that the right of the people to put something on the agenda requires a greater majority than to pass it into law. Such a theory violates core democratic norms.

The Assembly knows that if a con-con fulfilled its constitutional function, the result would likely be popular democratic reforms, such as legislative redistricting, transparency and term limits, that aren’t in its political self-interest.

But self-interest is no excuse to violate Maryland’s Constitution, defy the people’s will and hide behind the court’s fear of retribution from the political branches.

The Assembly should fulfill its ministerial duty under Maryland’s Constitution to convene the con-con the people approved.

–J.H. Snider is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics. He is suing the State of Maryland to uphold its Constitution by convening a Con-con.

Snider, J.H., It will take a con-con to untangle Maryland’s gerrymanders, Washington Post, February 12, 2012

The U.S. Constitution mandates that states redraw their political districts every decade, based on the latest population census data. Maryland’s General Assembly is currently considering new districts for itself.

Maryland’s redistricting process allows incumbent legislators to choose their own and their competitors’ voters for the coming decade. The resulting anti-democratic districts are called gerrymanders, which have two basic flavors: partisan and pro-incumbent.

In a partisan gerrymander, districts are drawn to favor the dominant political party. For example, Maryland’s recently approved congressional districts were drawn so that the Republican Party would be dominant in only 12.5 percent of the congressional seats despite routinely polling more than 40 percent of the vote.

In a pro-incumbent gerrymander, districts are drawn to favor sitting legislators. Maryland’s proposed General Assembly districts have been drawn to give most members of both parties safe seats in the general election. Many will run unopposed or face only nominal opposition.

Of course, the incumbents who control redistricting routinely profess that the districts are drawn to enhance, rather than harm, democratic values. Although everyone knows these claims are a farce, it plays out this way decade after decade because incumbents benefit from the status quo and voters have no practical recourse for bringing about change.

One common recommendation to fix the problem is to create a bipartisan redistricting commission. But creating such a commission isn’t politically viable in Maryland, where one party dominates the government and no ballot initiative exists.

Another often-heard idea is to empower judges to draw the districts. But judges lack the power of the purse or sword to enforce their rulings, often depend for their appointments and perks on the good will of incumbent legislators and know that they are popularly perceived to be the least democratic branch of government. Hence, except for the most egregious gerrymandering cases, they defer to the political branches. As U.S. District Court Judge Roger W. Titus wrote in a recent redistricting case, it “is clear that the plan adopted by the General Assembly of Maryland is, by any reasonable standard, a blatant political gerrymander.” Nevertheless, he approved the plan.

My preferred solution is the redistricting jury. With a redistricting jury, judges don’t choose a plan. Instead, they convene a jury to pick from among submitted plans based on democratic criteria such as compactness, contiguity and equal population. To enhance its democratic legitimacy, the jury is randomly selected and unusually large. Until recent technological advances, redistricting juries weren’t practical. Drawing district maps used to require experts, cost hundreds of thousands of dollars and required months of work. Now a fifth-grader connected to the Internet can draw comparable maps with a few clicks of a mouse. This means that a redistricting jury would be able to choose from among many high-quality submitted maps.

However, given the long-standing and inevitable opposition of Maryland’s incumbent legislators to meaningful redistricting reform, the only politically plausible way to implement such reform is via a state constitutional convention. The good news is that Maryland’s Constitution mandates that citizens be asked every 20 years whether they want to convene such a con-con. In 2010, when the question was last on the ballot, 54.4 percent of those voting on the question voted yes. Not a single member of the General Assembly publicly supported a yes vote. The bad news is that, relying on a self-serving and, I believe, illegal interpretation of Maryland’s Constitution, the governor and General Assembly refused to convene the approved convention, despite their oath of office to uphold the Constitution.

With the need for redistricting and other democracy-enhancing reforms in mind, reformers should support pressuring and suing the governor and General Assembly to convene the con-con that Maryland voters approved.

–The writer is president of iSolon.org and a fellow at Harvard University’s Edmond J. Safra Center for Ethics.

Snider, J.H., “State ignores voters, constitution,” Baltimore Sun, January 19, 2012, p. 19A

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

Snider, J.H., “Give Marylanders the constitutional convention they voted for,” Washington Post, November 14, 2010

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.

Snider, J.H., “Con-con promise comes due for O’Malley,” Washington Post, November 13, 2010

Snider, J.H., Con-con promise comes due for O’Malley, Washington Post, November 13, 2010