What type of majority is necessary to approve Maryland's Nov. 6 ballot referendum to expand gambling? Maryland's Constitution says: "a majority of the qualified voters in the State" (Article XIX).
Those who have studied this clause, an amendment voters ratified in 2008, recognize its careless draftsmanship. Read literally, it means a majority of eligible voters in Maryland. This is not a crazy interpretation: dozens of laws with similar language have been interpreted this way since America's founding. However, Maryland's legislature wants to make it as easy as possible for voters to approve its proposed gambling referendum. Consequently, it interprets the clause as a majority of voters voting on the question.
Now consider another similar clause in Maryland's Constitution: the clause to convene a constitutional convention, which requires "a majority of voters at such election or elections" (Article XIV). Syntactically, it's identical to the gambling clause.
A majority clause is of the form: type of majority denominator, when, and where, with the when and where optional depending on context. The gambling clause specifies the denominator type and the where; the convention clause specifies the denominator type and the when.
Many jurisdictions and courts have interpreted a majority of voters at an election as a majority voting on the question. A particular election, such as a general election, may be specified simply to assure a well-attended election. However, Maryland's legislature has wanted to make it as hard as possible for voters to convene a constitutional convention, whose primary democratic function is to provide a mechanism for democratic reform when incumbent legislators have a strong conflict of interest with the public. (The most famous example of such an issue in the 20th century was legislative reapportionment; today it is legislative redistricting). Consequently, it interprets the clause as a majority voting, which means a majority voting on any proposition, even on a completely unrelated issue.
For example, in 2010, 54.4 percent of those voting on the question supported convening a convention. After the election, the legislature cited a glib legal analysis that the majority required was the much more difficult majority voting at a general election — a majority never achieved in Maryland's 226-year history.
Admittedly, Maryland's constitution has many poorly worded majority clauses interpreted by the legislature in self-serving ways. (Anyone who doubts the tendency of politicians and journalists to use imprecise language to describe majorities should do an Internet search on Maryland's gambling referendum.) But as a matter of both logic and fairness, the legislature shouldn't be able to have it both ways. If it insists that the convention clause means a majority of those voting (despite the fact that the intent of the clause's framers and ratifiers was a majority voting on the question), then the gambling clause must mean a majority of eligible Maryland voters.
After the dispute over the majority required in the 2010 convention referendum, the legislature recognized the gambling referendum's inconvenient wording and has claimed that its original intent in 2008 was "a majority of the voters in Maryland voting on the question" by including that language in the 2012 enabling act to place the referendum on the ballot. But constitutionally required majorities cannot be rewritten by statute.
The legislature should not be allowed to interpret the same type of constitutional clause in different ways depending on its political self-interest. It must choose one consistent interpretation or the other. If it continues to refuse to do so, then the courts should end this self-serving political charade. Supporters and opponents of the Nov. 6 gambling referendum, take note.
J.H. Snider, an Anne Arundel County resident, is the president of iSolon.org and a Fellow at the Edmond J. Safra Center for Ethics at Harvard University. His email is firstname.lastname@example.org.Copyright © 2015, The Baltimore Sun