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‘No vote’ was a ‘no’ vote on Maryland constitutional convention

It appears Maryland will not engage in a full-scale review of the state’s constitution any time soon, even though 55 percent of those voting on it supported the call for a constitutional convention.

That’s because when it comes to reviewing Maryland’s constitution a simple majority is not so simple.

On most issues, 55 percent of votes cast would be sufficient for a victory.

But Maryland’s constitution provides that a convention be called only when it has the support of a majority of voters “at such election,” not just those who voted on the proposal, said Assistant Attorney General Daniel A. Friedman, counsel to the General Assembly.

More than 1.7 million people cast votes in the Maryland election on Tuesday, but only about 1.5 million voted on Question 1. Therefore, the 843,183 who favored a constitutional convention represent only 48.5 percent of total voters in the election, according to preliminary numbers from the State Board of Elections.

Those figures would appear to spell defeat for the convention proposal, said Friedman, who has written extensively on the Maryland constitution.

Two leading senators agreed with Friedman’s interpretation of the requirement.

“It ought to be absolutely clear that [a convention] is preferred by a majority of the electorate at large,” said Senate Judicial Proceedings Committee Chairman Brian E. Frosh, D-Montgomery. “I don’t think you can conclude that it’s something the general public has a burning desire for when so many people didn’t even bother to vote on the issue.”

Sen. Jamin B. “Jamie” Raskin agreed.

“There is this presumption that you need a majority of all electors” to support a convention before a wholesale review of the constitution is initiated, said Raskin, D-Montgomery, who teaches constitutional law at American University’s Washington College of Law.

‘Sense of the people’

The state constitution requires the Legislature to take “the sense of the people” every 20 years on whether a constitutional convention is needed. The year of 2010 was just such a milestone.

Friedman said the requirement that a majority of all voters approve a convention is found in the same provision, Article XIV, section 2 of the state constitution.

The provision calls for a convention if, on Election Day, “a majority of voters at such election” vote for a convention.

The phrase “at such election” is not superfluous but rather distinguishes the vote required for passage from a simple majority of those voting on the issue, Friedman said.

“What does ‘at such election’ mean if it doesn’t mean that?” Friedman said.

Friedman said his view of the constitution is supported by history.

In 1930 and again in 1950, more people voted in favor of a constitutional convention than voted against it; however, as in Tuesday’s election, the supporters did not make up more than half the total number of voters, Friedman said.

After the 1930 election, a prominent attorney of the day, Philip B. Perlman, advised the General Assembly that a convention must be called only if approved by a majority vote of all voters on Election Day. The advice was rooted in the belief that a convention to change the state’s governing documents should be undertaken only with the support of a majority of the people who went to the polls.

“It is likely that I would give that same advice,” Friedman said.

4 comments

  1. …but how will the courts interpret the Maryland Constitutional Convention provision? Hmmmm… Perhaps as a Marylander I should put it to the judicial test. Developing…

  2. I think you should D8n. Let’s kick some pol ***.

  3. D8n, I think it’s pretty clear how the courts would interpret the provision, provided you could even get a court to hear such a case:

    “In 1930 and again in 1950, more people voted in favor of a constitutional convention than voted against it; however, as in Tuesday’s election, the supporters did not make up more than half the total number of voters.” In both of those instances, no convention was held.

    As noted before, getting a court to hear such a case could be difficult. It’s unclear whether you’d have standing to sue; one question a court would ask would be, “How have you been injured [legally] by the legislature’s decision to interpret the constitutional convention question in the same way that it has for at least the past 80 years?” A court may also decide that this a “political question” that the judicial branch shouldn’t weigh in on.

  4. Brian you’re probably right about the courts, though a misrepresentation of the provision or a political two-step by the general assembly on two prior occasions does not confirm their position as being proper — to me it only reflects that their position was unchallenged (unless there was a case that challenged the legislature back in ’30 or ’50 on matter that I haven’t yet come across).

    How the general assembly’s position would be injurious to me and whether or not it’s a political question that the court would avoid, are two considerations that could have been avoided I suppose if a few more people just voted for the darn thing!