GOP threatens lawsuit over Maryland map-drawing vote

Legislation setting redistricting standards in Maryland could land in court before it lands on a ballot for voters this fall.

The Senate Tuesday gave final approval to House Bill 2100, the constitutional amendment that, if approved by voters, would override a 2022 court ruling that some Democrats said hamstrung efforts to redraw the state’s eight congressional districts. Republicans said the bill will result in the loss of the only congressional seat held by a member of their party.

“We’re going to try to get this into the court as soon as we possibly can to try to put any type of delay that we can,” said Senate Minority Leader Stephen S. Hershey Jr. (R-Upper Shore).

Hershey and Senate Minority Whip Sen. Justin Ready (R-Frederick and Carroll) said time is of the essence: The measure has to be to state elections officials Wednesday to make the November ballot.

“This was done at the last minute,” Hershey said Tuesday. “They have to have this ballot language on Aug. 5, which is tomorrow.”

Amendments to the state constitution have to pass by a three-fifths majority of both legislative chambers, and do not require the signature of the governor, but Gov. Wes Moore (D), a supporter of midcycle congressional redistricting, is scheduled to hold a bill signing ceremony anyway Wednesday.

“I continue to believe that our country needs national redistricting reform,” Moore said in a statement praising lawmakers’ passage of the bill. “But until that happens, inaction is not an option. Maryland will not be caught flat-footed while Republicans engage in political redlining that guts decades of progress that the generations before us fought for.

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“By passing this constitutional amendment, the General Assembly has ensured that Maryland remains committed to being part of that conversation—and that the final decision will rest where it belongs: with the people of Maryland,” his statement said.

Republicans claim that a provision in the bill passed Tuesday sidesteps a law passed this year that requires constitutional amendments to be simple and to be submitted at the start of July for public review and comment on before being put on the ballot. They also say the bill creates a scenario where future congressional redistricting maps could not be challenged in federal or most state courts.

But Senate President Bill Ferguson (D-Baltimore City) said that’s “just patently not the case.”

“What it does is keeps existing law whole in that it says that the U.S. Constitution and federal laws are what apply to congressional maps, which is how it had been for hundreds of years in Maryland until a single court case challenged that certainty,” said Ferguson, who voted for the bill Tuesday after blocking a similar effort earlier this year.

Asked on Tuesday about the potential for legal challenges to the ballot question, House Speaker Joseline Peña-Melnyk (D- Prince George’s and Anne Arundel) demurred.

“I can’t control and tell you whether there’s going to be a potential legal challenge,” Peña-Melnyk said. “We did this because it was needed.”

She said she believes there is strong evidence that rules for redistricting in in the Maryland Constitution were intended only for General Assembly elections.

“It has never included Congress. It’s not mentioned anywhere,” Peña-Melnyk said in a news conference after the House passed the bill early Tuesday.

If voters choose to approve the amendment, it gives Maryland the option to decide whether it will enter the national redistricting fray next year, said House Majority Leader David Moon (D- Montgomery).

“We’ll see what the voters say. Some time after that, you’re going to see additional states beginning to conduct mid-decade redistricting, including maybe states like Indiana that took a pass on it last time,” Moon said. “As we in Maryland sit here watching those other states engage in mid-decade redistricting, we will now have the flexibility, in the same posture as those states, to decide how we want to respond.”

Asked what happens if voters reject the ballot question, Peña-Melnyk said simply, “They say no. The voters, they have spoken.”

Predictions of an impending lawsuit — the Republican leaders made it clear they were not behind it — came after two long days of partisan floor fights. The outcome was never in doubt, as Democrats hold supermajorities in both the House and Senate.

Republicans could do little but lean on procedure and a flurry of amendments — all rejected or ruled out of order.

The final 32-13 Senate vote came hours after the House voted 96-38 Tuesday morning for the bill. It capped a yearlong effort by some Democrats, including Moore and others, who wanted to respond to a flurry of hyperpartisan redistricting touched off by President Donald Trump, when he pushed Texas to redraw congressional maps ahead of midterm elections.

Democratic and Republic states joined in, but Maryland ultimately did not. The issue pitted Moore against Ferguson, who blocked an effort to pass new maps earlier this year.

In doing so, Ferguson cited a 2022 decision by Judge Lynne Battaglia that struck down a 2021 congressional map. Battaglia applied a portion of the state constitution that requires districts be compact, contiguous and mindful of jurisdictional and geographic boundaries — language that had always been applied only to legislative districts, not congressional districts.

It was considered a novel ruling. Ferguson saw it as an impediment to new maps and potentially one that could open up new litigation on the 2022 compromise map that resulted. That compromise changed a map that favored Democrats in all eight of Maryland’s congressional districts to the current 7-1 split, in which Rep. Andy Harris (R-1st) is the state’s only GOP representative.

During floor debate Tuesday afternoon, Democrats argued that the Battaglia decision was meaningless — a reversal of concerns from earlier this year.

Harris was in Ocean City, not Annapolis, as state lawmakers took steps that could ultimately defeat him, unobtrusively watching the weigh-ins at the White Marlin Tournament.

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Targeting Harris will require a new map, something some hoped to see during the special session. The bill that passed does not contain a new map.

“It’s an important first step to allow us to really look at whether we can rebalance Congress later on,” said Sen. Clarence Lam (D-Howard and Anne Arundel), an early advocate of midcycle redistricting. “There’s still more work to be done on this issue. This issue is not going away, and it will continue to grow as a concern as we approach 2028.”

If approved by voters in November, the legislature could take up new congressional districts as early as January.

“I think there’s a lot of information between here and there, and I and I don’t think I would come in predisposed,” Ferguson told reporters after the vote. “What I know is that this was started by the White House and added on by a Republican Supreme Court that has radically undermined the norms of American democracy, and so Maryland has to be in a position of strength and certainty, when we act, should we act.”

Ferguson at times has questioned whether there would be enough votes in the Senate to pass new maps. Lam believes Tuesday’s vote is a positive sign.

“I think if you got the bill up there on the board, the votes would be there,” Lam said. “The question is: Is there enough support amongst the body and in leadership to get the bill up there? And if you get the bill on the board, the votes will be there to pass it. It’s an interesting kind of dynamic where it’s not the board itself that is the determinative step. It’s getting it up there. I think if you get it up there, the votes will be there.”

— Josh Kurtz and Maryland Matters reporter Christine Condon contributed to this report.

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: editor@marylandmatters.org.