Per curiam order reverses lower courts on keeping Question 3 off the ballot; two justices dissent; both parties vow to keep fighting through November
By Michael Phillips | MDBayNews
ANNAPOLIS — The Supreme Court of Maryland ruled Thursday evening that voters will get to decide on the state’s proposed congressional redistricting amendment after all, but ordered election officials to rewrite the ballot question using clearer, statutorily accurate language before it goes to print. The 5-2 decision, issued hours after oral arguments the same day, sets up a campaign fight over Question 3 that both parties say they intend to wage through November.
The seven-justice court issued a per curiam order in the consolidated cases, Maryland State Board of Elections v. Howell and Maryland State Board of Elections v. Wheatley, Nos. 21 and 22, September Term 2026. The order allows Question 3 to remain on the November ballot, departing from both circuit courts’ rulings on that point, while agreeing the original ballot language was misleading and ordering it rewritten.
The order’s caption lists all seven participating justices: Chief Justice Matthew J. Fader, and Justices Shirley M. Watts, Brynja M. Booth, Steven B. Gould, Angela M. Eaves, Peter K. Killough, and Senior Justice Glenn T. Harrell, sitting by special assignment. Justice Jonathan Biran did not participate. Of those seven, five joined the per curiam decision; Gould and Harrell dissented, as detailed below.
What changes on the ballot
The order directs the State Board of Elections to replace the original ballot summary, which described the amendment as “clarifying” existing law, with the official purpose language the General Assembly itself wrote into Chapter 881 of the 2026 Laws of Maryland. That purpose paragraph states the amendment is for clarifying that certain constitutional requirements apply only to state legislative districts, authorizing the General Assembly to grant the Supreme Court of Maryland original jurisdiction over congressional districting cases, and providing that no Maryland constitutional criteria govern congressional district boundaries.
- What stays the same: Question 3 will appear on the Nov. 3 ballot. Voters, not the courts, will decide whether the amendment takes effect.
- What changes: The summary voters read at the ballot box will now mirror the bill’s own statutory purpose language rather than the shorter “clarifies” summary two circuit judges found misleading.
- What it does not resolve: The underlying policy question, whether Maryland’s congressional map can be redrawn without the compactness and boundary standards that currently apply, is unaffected by Thursday’s order and remains up to voters in November.
Where the majority and the circuit courts parted ways
Both circuit courts that heard the case, Anne Arundel County’s Robert J. Thompson and Dorchester County’s S. James Sarbanes, had found multiple problems with House Bill 2100: that lawmakers missed their own certification deadlines, that the ballot language was misleading, and that the measure improperly combined separate subjects into one ballot question.
The Supreme Court’s majority agreed with only one of those three findings. The specific breakdown below is drawn from legal-news aggregator SCOTUS Wire’s account of the order; MDBayNews has independently confirmed the outcome and the misleading-language finding through the Associated Press and Maryland Matters, but has not independently verified the majority’s treatment of the deadline and single-subject theories beyond SCOTUS Wire’s reporting.
- Rejected: The majority found that lawmakers missing statutory deadlines did not, by itself, justify excluding the question from the ballot merely because election officials could not fully comply with those same deadlines.
- Rejected: The majority found the amendment does not violate the Maryland Constitution’s single-subject requirement for referred ballot questions, a conclusion that departs from both circuit courts.
- Upheld, with a different remedy: The majority agreed the ballot language was misleading, specifically language stating the amendment “requires” congressional district criteria to come from federal law. Rather than strike the question from the ballot, as both circuit courts had ordered, the majority ordered the language replaced with the General Assembly’s own statutory purpose paragraph.
The dissent
Justice Steven B. Gould, joined by Senior Justice Glenn T. Harrell, dissented from the majority’s decision to keep Question 3 on the ballot with rewritten language rather than remove it entirely. MDBayNews reviewed a portion of the dissent directly.
Gould and Harrell wrote that the majority’s rewritten question “remains misleading” because it does not tell voters that the amendment would strip away Declaration of Rights protections, not just the compactness and boundary standards at the center of the ballot fight. The dissent points specifically to Articles 7, 24, and 40 of the Declaration of Rights, writing that if the amendment passes, those provisions would no longer provide any criteria against which a congressional map could be challenged, including by a voter arguing a map was drawn to disadvantage a religious minority or punish people for their political views.
The dissent rejects the idea that those state constitutional protections are redundant with federal law simply because they overlap with it, citing a string of Maryland cases holding that state and federal constitutional provisions “remain independent” of one another even when closely related, among them Attorney General v. Waldron, 289 Md. 683 (1981), and Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604 (2002). Gould and Harrell conclude that the average voter reading the majority’s new ballot language still would not understand that “a vote for Question 3 is a vote to eliminate rights” currently guaranteed under the Declaration of Rights.
“A vote for Question 3 is a vote to eliminate rights.”
Why it matters
If approved in November, the amendment would clear the way for the General Assembly to redraw Maryland’s congressional map without the compactness, contiguous-territory and boundary standards that a 2022 circuit court ruling first applied to congressional districts. Democratic leaders have said a revised map could aim to elect Democrats to all eight of the state’s U.S. House seats, up from seven of eight today, eliminating the seat held by Rep. Andy Harris, the state’s only Republican member of Congress.
Democratic leaders were not unanimous on how far to go. Senate President Bill Ferguson had previously expressed caution about an 8-0 map specifically, warning it might not survive a legal challenge, while Gov. Wes Moore and House Speaker Joseline Peña-Melnyk supported pursuing one, a split that carried into how each of them reacted Thursday night.
Democratic reaction: unified on the outcome, split on tone
“The most important outcome is clear: Marylanders will have their say.”
Senate President Ferguson and Speaker Peña-Melnyk issued a joint statement calling the outcome a win for the legislative process that produced the amendment.
“The most important outcome is clear: Marylanders will have their say,” the two leaders said in a joint statement.
Gov. Moore’s own statement struck a sharper, more national note than the Ferguson-Peña-Melnyk statement, tying the ruling directly to Republican-led redistricting efforts in other states.
“The final decision on how we draw our maps belongs in the hands of Marylanders,” Moore said, arguing the ruling confirmed a position he has held since the amendment was first proposed. He argued that President Trump and Republicans nationally have pushed aggressive mid-decade redistricting elsewhere, and said Maryland’s amendment ensures the state is not caught flat-footed against those efforts. He closed with a pledge to campaign for a “strong YES vote” on Question 3, saying, “We do not surrender.”
MDBayNews has not independently located Moore’s statement through the Governor’s official channels and is relying on reporting from Fox45/WBFF political reporter Mikenzie Frost.
Sen. Joe Vogel, D-Montgomery, was more pointed toward the Republicans who brought the lawsuits, suggesting on social media that they should refocus on other work.
“Maybe now they can go back to working for their constituents,” Vogel said.
Republican reaction: same outcome, different tones
Maryland Republican Party Chairwoman Nicole Beus Harris said the party was disappointed the reworded amendment will appear on the ballot but expressed confidence in the party’s chances with voters directly.
“We are confident voters will not stand for one-party rule,” Beus Harris said, pointing to the party’s existing “Save Our Voice” campaign against the amendment.
The Maryland Freedom Caucus, one of the plaintiff groups in the underlying lawsuit, issued a formal statement calling the outcome a partial vindication undercut by the court’s choice of remedy.
“It corrected the Democrats’ homework instead of striking it completely.”
“We are disappointed in today’s ruling,” the caucus said, adding that while the Supreme Court agreed the original ballot language was misleading, it “corrected the Democrats’ homework instead of striking it completely.” The caucus said it was reviewing the order with attorneys from the Oversight Project and considering next steps, and thanked co-plaintiffs Mike Howell, Sen. Stephen Hershey and Sen. Justin Ready by name.
Del. Matt Morgan, R-St. Mary’s, the caucus chair, posted a separate and more pointed personal statement arguing the court had overstepped its role. “It is pretty clear we are in a post-constitutional era,” Morgan wrote, arguing that Article 8 of the Maryland Declaration of Rights requires separation of legislative, executive and judicial power, and that Article 14 assigns the General Assembly, not the courts, the duty to set the form of a constitutional amendment on the ballot. He argued the justices had effectively taken on that duty themselves, writing, “That is legislating from the bench.”
“That is legislating from the bench.”
Senate Minority Whip Justin Ready, also a plaintiff, argued the ruling let the state off the hook for conduct the court itself found deceptive.
“This Court is aiding and abetting the deceptive behavior of our state’s one-party supermajority,” Ready said, echoing the dissent’s argument that even the rewritten language fails to tell voters the amendment would remove Declaration of Rights protections from congressional redistricting.
None of the Republican statements reviewed by MDBayNews announced a specific further legal filing; the Freedom Caucus said only that it was weighing next steps with its legal team. Across every Republican statement reviewed, the common thread was a call to defeat the amendment in November regardless of the legal outcome.
Election administration
Ballot printing, which had been on hold awaiting the ruling, can now proceed with the revised language, including a Spanish translation State Administrator of Elections Jared DeMarinis said his office was preparing Thursday.
“The best scenario for Marylanders, just in general, is clarity,” DeMarinis said.
“The best scenario for Marylanders, just in general, is clarity.”
Accounts differ slightly on the mail ballot timeline: DeMarinis said in a social media post that mail-in ballots would begin going out Sept. 19, while state law requires the first ballots to be mailed to voters starting Sept. 17. MDBayNews was not able to resolve that discrepancy by publication and will update this story if it is clarified.
Background
- Aug. 26: Anne Arundel County Circuit Judge Robert J. Thompson ruled the amendment unlawful, finding lawmakers missed their own certification deadlines and that the ballot language was misleading. He stayed his injunction pending appeal.
- Aug. 28: Dorchester County Circuit Judge S. James Sarbanes reached a similar conclusion in a separate lawsuit, also finding the ballot language misleading. He stayed his injunction as well.
- Sept. 3: The Supreme Court of Maryland heard both appeals together and ruled the same day, reversing the circuit courts on ballot inclusion while directing that the ballot language be rewritten.
Sources: This story is based on the per curiam order and the Gould-Harrell dissent in Maryland State Board of Elections v. Howell and Maryland State Board of Elections v. Wheatley, Nos. 21 and 22, September Term 2026, filed Sept. 3, 2026, portions of which were reviewed directly, including the dissent’s citations to Attorney General v. Waldron, 289 Md. 683 (1981), and Dua v. Comcast Cable of Maryland, Inc., 370 Md. 604 (2002). The majority’s specific treatment of the deadline and single-subject theories is drawn from an account of the order published by legal-news aggregator SCOTUS Wire and has not been independently verified by MDBayNews beyond that source. Reporting on the ruling’s context is drawn from Pamela Wood’s coverage for The Baltimore Banner and David A. Lieb’s Associated Press report, republished by The Washington Times. Statements from Senate President Bill Ferguson and Speaker Joseline Peña-Melnyk, Sen. Joe Vogel, Maryland Republican Party Chairwoman Nicole Beus Harris, the Maryland Freedom Caucus, Del. Matt Morgan, Sen. Justin Ready, and State Administrator of Elections Jared DeMarinis were posted to X on Sept. 3, 2026. Gov. Moore’s statement is reported via Fox45/WBFF political reporter Mikenzie Frost and has not been independently located by MDBayNews through official channels. Background on the underlying circuit court rulings is drawn from MDBayNews’s own prior coverage.
Keep MDBayNews Reporting Free
MDBayNews exists to help Marylanders understand decisions made by state and local leaders — especially when those decisions affect daily life, rights, and public services.
If this article helped clarify what’s happening or why it matters, reader support makes it possible to keep publishing clear, independent reporting like this.
Have a tip or documents to share?
We review submissions carefully and confidentially. Anonymous tips are welcome when appropriate.
Discover more from Maryland Bay News
Subscribe to get the latest posts sent to your email.