A proposed ballot question that could set new standards for the way congressional maps are drawn in Maryland will go to voters in November, the Supreme Court of Maryland ruled Thursday evening.
The order from a divided high court overturned two lower courts that had sided with state Republicans who challenged the proposed amendment to the Maryland Constitution. The Thursday evening order came as an end-of-the-day deadline to finalize the ballot for printing approached.
The decision was anything but a full-throated victory for legislative Democrats who muscled the bill and a legally faulty question through a two-day special session. Even so, the end result is voters will be asked to weigh in on the proposed change this fall.
In an eight-page order written for the majority, Chief Justice Matthew J. Fader agreed with judges in Anne Arundel and Dorchester counties who ruled that the ballot question as written by the Maryland General Assembly “is misleading and therefore violates due process requirements.”
In particular, Fader said the majority found fault with the question’s reference to “applicable federal laws” as the criteria for determining congressional boundaries.
Questioning Question 3
The Supreme Court of Maryland rewrote a proposed ballot question on redistricting Thursday before sending it to voters this fall.
Original Question 3
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.
New Question 3
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.
Despite that, Fader wrote that judges in both cases were wrong to have issued injunctions last week blocking the question.
“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,” the majority opinion states.
In a three-page dissent, Justice Steven B. Gould, writing for himself and Senior Justice Glenn T. Harrell, said he would have affirmed the decisions of both lower courts and issued a scathing rebuke of the ballot question as passed by the Democratic legislative majority.
“I am skeptical … the Election Law Article authorizes us to draft ballot language,” Gould wrote. “Even if we had such authority, I am perplexed that we would do so when, as here, a majority of the Court has determined that the General Assembly drafted and sought to submit a misleading ballot question to voters.
“The General Assembly claimed the prerogative to draft the question; it should bear the consequences of drafting a misleading one. It is not our job to rewrite the question for the General Assembly,” Gould wrote.
Gould went on to say the new question written by the majority “remains misleading.”
“Maryland voters reading it would not understand that the criteria being removed include the guarantees of the Declaration of Rights — the collection of sacred rights that protect Marylanders against government overreach,” he wrote.
Gould said that if voters approved the question in November, the “Declaration of Rights would provide no criteria against which a congressional districting plan may be measured.”
The result, he said, would be the loss of any ability by any Marylander to “challenge a plan drawn to disadvantage a religious minority or punish citizens for their political expression or association. These are not redundant guarantees,” Gould wrote.
Gould and Harrell also agreed with the lower courts that the legislature missed a legal deadline to approve the proposed ballot language and improperly included two subjects in the one ballot question. But the majority said the circuit courts were wrong to claim those errors by the General Assembly.
Thursday’s rushed order represents only a part of the justices’ thinking on the appeal. Both Fader and Gould said that fuller opinions would be filed later.
The order followed a two-hour hearing Thursday that was held exactly one month after House Bill 2100 was introduced in the House of Delegates and the start of a whirlwind two-day special session of the Maryland General Assembly.
Justices had questions for both sides during two hours of arguments Thursday. The court was working on deadline: An end-of-day deadline for election officials to finalize the November ballot for printing.
The high court ordered the lower courts to lift the respective injunction orders and issue new orders requiring the Maryland State Board of Elections to use the re-written question. That must be done by Friday, according to the majority order.
In a statement Thursday night, State Elections Administrator Jared DeMarinis thanked the court for its quick work.
“With this ruling, SBE [the State Board of Elections] will meet all mail-in ballot delivery deadlines,” wrote DeMarinis, who said he was finishing a Spanish translation of the new ballot question Thursday night. “Mail-in ballots will start being sent out on Sept. 19.”
The General Assembly claimed the prerogative to draft the question; it should bear the consequences of drafting a misleading one. It is not our job to rewrite the question for the General Assembly. – Maryland Supreme Court Justice Steven Gould, dissenting from the redistricting order
Democrats proclaim ‘a massive victory’
Democrats rushed to social media and email to victory-lap the decision.
“Today is a victory for Maryland voters and affirms the General Assembly’s longstanding constitutional power to formulate ballot questions and present them to the State’s electorate. With this ruling, Marylanders will determine the standards governing congressional redistricting,” Senate President Bill Ferguson (D-Baltimore City) and House Speaker Joseline Peña Melnyk said in a joint statement.
An organization formed to support the ballot question again said Republicans sought to prevent voters from having a choice in November.
“Opponents of Question 3 tried every avenue they could find to keep this decision out of the hands of Maryland voters. They failed. We are going to organize in every corner of this state, make our case directly to Marylanders, and mobilize voters to vote,” said Joe Francaviglia, political director of Fight Back MD.
Gov. Wes Moore (D), a vocal advocate of having Maryland enter the rush of red and blue states engaged in hyperpartisan midcycle redistricting, hailed the decision as “a massive victory.”
“The Court has rightfully reversed the lower court decisions, guaranteeing that this critical constitutional amendment will appear on the general election ballot this November,” Moore said in a statement. “This affirms what I have said from the very beginning: The final decision on how we draw our maps belongs in the hands of Marylanders, not politicians.”
‘Obviously not what we expected’
Senate Minority Leader Stephen S. Hershey (R-Upper Shore), a plaintiff in one of the cases, said the early evening decision was “obviously not what we expected.” He said the ruling gave the General Assembly a mulligan on a legally deficient ballot question.
“The one positive to come from today’s ruling is that the Court recognized what we argued from day one: Maryland voters were not given a fair and accurate explanation of this constitutional amendment,” Hershey said. “If the ballot question had to be rewritten, then it was clearly inadequate as originally written. Unfortunately, I still believe the revised language fails to fully explain the amendment’s true effect.”
A group formed to oppose the amendment in November called the decision “baffling.”
“Marylanders will now be asked to vote on ballot language deliberately written to obscure what this amendment actually does,” Doug Mayer, a senior adviser for Protect Maryland Votes, said in a statement.
“It doesn’t mention gerrymandering. It doesn’t mention stripping away 50 years of constitutional protections. It doesn’t mention disenfranchising nearly half of this state,” Mayer wrote. “It was written that way on purpose by politicians trying to deceive voters. That is an insult to every Maryland voter’s intelligence and a fundamental betrayal by the people who swore an oath to protect them.”
Members of the ultraconservative Maryland Freedom Caucus, also plaintiffs in one of the lawsuits, decried the decision.
“We are disappointed in today’s ruling, and we don’t agree with the remedy offered by the court,” the group said in a statement. “While the Supreme Court of Maryland affirmed that the Maryland Freedom Caucus and our co-plaintiffs were correct that the ballot question written by Annapolis Democrats was misleading, they corrected the Democrats’ homework instead of striking it completely.”
The group, which was represented by the conservative Oversight Project, said it was looking at “next steps,” but did not elaborate.
The push to eliminate Maryland’s last GOP member of Congress
Thursday’s hearing comes exactly a month after HB 2100 was introduced in the House, kicking off a whirlwind two-day special session on the redistricting question.
Democratic super majorities in both the House and Senate easily passed the amendment along party lines.
The proposal would supersede a ruling by Judge Lynne Battaglia in a 2022 congressional redistricting challenge. Her ruling — which is not precedent — tied the recasting of congressional districts to compact and contiguous requirements in the Maryland Constitution.
The ruling was considered novel, as those standards had been thought to only apply to state legislative districts. Even so, Battaglia’s ruling was enough of a concern that Ferguson iced a new congressional map that was approved by the House in February, as some states rushed to redraw congressional districts ahead of this fall’s elections.
But subsequent national politics — including a U.S. Supreme Court ruling that gutted racial protections of the landmark Voting Rights Act — led to a change of heart for Ferguson, who then backed a special session for the purposes of an amendment to the Maryland Constitution to override the Battaglia ruling. Because it’s a constitutional amendment, the change would have to be approved by voters.
Days after the end of the special session, two challenges to the proposed amendment were filed, one in Annapolis and another in Cambridge.
Republicans opposed the bill in the legislature and in the courts because it is seen as clearing the way for Democrats to return as early as next year and engage in midcycle redistricting that could make all eight of the state’s congressional seat tilt toward Democrats.
Currently, Rep. Andy Harris (R-1st), who represents a district that includes all of the Eastern Shore, is the lone Maryland Republican in Congress.
In fast-tracked rulings over the past week, judges in both the Annapolis and Cambridge cases cited legal deficiencies in the process followed by the legislature, and missed statutory deadlines.
The judges also said there were violations of the Maryland Declaration of Rights, citing concerns about due process and whether voters could understand that approval of the amendment would effectively eliminate future challenges to any new congressional map.
The circuit court rulings were immediately appealed to the Supreme Court.
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by Bryan P. Sears, Maryland Matters
September 3, 2026
Maryland Matters is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Maryland Matters maintains editorial independence. Contact Editor Steve Crane for questions: info@marylandmatters.org.