October 13, 2010

Rewriting Maryland constitution is up to voters, but not many know

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By Megan Poinski
Megan@MarylandReporter.com

While candidates dominate the news, a ballot question that could make a bigger difference than any one politician is at the bottom of this year’s ballot.

Voters are being asked whether Maryland should call a convention in order to revamp the state’s constitution, a question the document itself requires be on the ballot every 20 years.

There are no signs, political ads, mailers or overt campaigners urging people to vote one way or another.

Political scientist J.H. Snider, who supports another constitutional convention with his website http://www.marylandconcon.org/, is a lone active campaigner on the issue. He puts out his message through his website or commentary in newspapers.

G. Alan Tarr, director of the Center for State Constitutional Studies at Rutgers University, said it has been about two decades since one of the 50 states had a constitutional convention. Since then, voters in every state with a constitutional convention question rejected the idea by a large margin, he said.

“It would seem in the present day, when things get difficult, people think it is time to revisit state government,” Tarr said. “These ballot questions come up not necessarily at the right times. People are not thinking it’s time for a change.”

Snider added that studies have shown that only 44% of Americans are aware that states have constitutions. There have been so few state constitutional conventions in the last half-century, he added, that most voters today don’t know much about them.
Maryland’s last convention

The last time Maryland had a constitutional convention, it was inspired by big changes.

In 1964, the U.S. Supreme Court ruled that Maryland’s county-based General Assembly districts were unconstitutional. Then-Gov. J. Millard Tawes proposed that a constitutional convention be called to rewrite how legislative districts are apportioned and also revisit the rest of the document.

Voters approved the convention, which took place between 1967 and 1968. The entire rewritten charter was placed on the ballot for voters to adopt or reject.

Many voters objected to sections of the document and defeated it at the polls.

A constitutional convention could implement changes that current office holders might not want Snider said — such as term limits for elected officials, a less partisan process for redrawing legislative districts, or mandating more legislative openness.

A majority of all voters casting ballots on Election Day have to vote for the measure in order to call the convention. That means that people who do not vote on the issue are actually voting against it.

“The less likely people know about something, the less likely they are to vote,” said Snider. “The strategy here is to ignore the issue.”
Maryland’s current constitution

The oldest portions of Maryland’s constitution date back to 1867 – the last time a constitutional convention successfully rewrote the document.

Since then, it has been amended more than 200 times. Two more amendments are going to be considered by Maryland voters this year. One changes the minimum dollar amount for a jury trial in civil suits from $10,000 to $15,000, and another requires that Orphans’ Court judges in Baltimore City be attorneys.

Tarr said that when dealing with a constitution that has undergone many amendments, it’s not a bad idea to have a constitutional convention to “make it a coherent document” and remove sections no longer relevant.
Irrelevant provisions

The Maryland Constitution has 43,000 words, close to twice as long as the average state constitution. Many of those words are no longer relevant.

According to attorney Dan Friedman’s 2006 book, “The Maryland State Constitution: A Reference Guide,” Article XI of the constitution, which sets up governance for the city of Baltimore, is “mostly obsolete and by remaining in the constitution serve[s] to confuse, not clarify the law governing the operation of the City of Baltimore.” Except for the section that deals with how the city can approve an extension of credit, the entire article has been replaced by Baltimore’s city charter.

There are five main sections in the constitution specific to the city of Baltimore, dealing with land development, off-street parking, port development, and residential and industrial financing loans. Because they are in the constitution, if Baltimore City wants to make a change to any of these articles, voters throughout the state would have to approve them .

“Things like off-street parking should not be in the constitution,” said Byron Warnken, a professor at the University of Baltimore Law School. “Those are the kinds of things that, if they can be regulated by local government, should be under local government.”

Snider called many of these specific provisions “a bit of an embarrassment,” but pointed out he does not think people will ever call a constitutional convention to fix them.
What could a convention change?

Snider said that constitutional amendments — approved by the General Assembly, then voted on by the electorate — are effective in making many changes to the document.

A constitutional convention is, however, the best way to make changes in some areas of policy where Snider said conflicts of interest exist between legislators and ordinary people, such as the redrawing of legislative district lines after the Census.

The current process leads to districts where political parties or politicians are more protected. New sections in the constitution could establish a more fair and nonpartisan way to draw the next set of district lines.

Snider said that term limits tend to be extremely popular among voters as a method of getting rid of career politicians and stopping political machines. Politicians, on the other hand, are less likely to support them.

Politicians are also less likely to approve measures to make their business more open and government records more accessible, Snider said.
What if no convention is called?

If voters do not choose to call a constitutional convention, Tarr said there are other options that are often used in other states. Legislatures set up constitutional commissions, and their members review portions of the document. They hold public hearings and collect input on what people think their state charter should say.

If the convention question fails, Warnken advocated a similar commission, which would make recommendations to the General Assembly.

“It’s nice in the abstract because they would sit back and make some choices,” Warnken said. “They could look at the things in there that are not needed at the constitutional level, and find the things that are needed at the constitutional level that aren’t in there.”