Maryland’s highest court spent Wednesday afternoon weighing in on whether voters will actually get to decide what to do with Baltimore’s Harborplace in November.

While the court heard arguments sweeping from the deep technicalities of election law through to zoning regulations, they are mainly considering two things: was the challenge to Question F submitted at the appropriate time and does it, in fact, constitute proper charter material?

A lower court judge decided “yes” to the first and “no” to the latter– declaring it “null” on the ballots that had already been sent out for printing. The State Board of Elections and Baltimore City hope the Maryland Supreme Court will reverse that.

As of this moment, thousands of mail-in ballots have gone out to Maryland residents. Under Anne Arundel County Judge Cathleen Vitale’s ruling, all ballots have Question F printed on them but the results of any filled out ballots will not be certified. They will, however, be counted so the elections board will know how voters responded.

“When a voter opens their ballot they should be confident in it,” said Daniel Kobrin, an attorney representing the State Board of Elections, going on to argue that election law does not allow for “substantive” challenges so close to the election.

Baltimore City Ballot Question F asks voters whether they would amend the city’s charter to allow multi-family housing and off-street parking to be constructed at the Inner Harbor while also expanding the development footprint to 4.5 acres from its currently allowable 3.2 acres. That has to happen in order for MCB Real Estate’s proposed $900 million Harborplace redevelopment plan to become a reality.

But the way that it asks those things is “incoherent” and “gibberish” according to attorney and two-time mayoral candidate Thiru Vignarajah, who represents lead plaintiff Anthony Ambridge and about two-dozen Baltimore residents who challenged the question.

That petition for judicial review was filed September 5th while the State Board of Elections sent ballots out for printing on September 6th.

Judges grilled Vignarajah on why the challenge was filed so late, asking where the “diligence” was on behalf of Ambridge, who they noted has been actively following Question F’s progression.

Kobrin stressed that the elections board knows challenges come around August and tries to be quick in responding to concerns, often foregoing the need for a Maryland Public Information Act request.

But Vignarajah said his client reached out multiple times to the city’s law department, who oversaw the language of the question before it was sent to the SBE for certification. Ambridge did not receive the language, he said. Speaking on WYPR’s Midday on August 20th, reporter Melody Simmons shared that she could not get the language from the elections board.

Ballots were certified on September 2nd.

Question F was created and passed by the Baltimore City Council, with its final passage in March. The language on the ballot is nearly identical to the one passed at that time and similarly is nearly identical to the language written in the current city charter, with the obvious exception of the proposed changes.

Vignarajah also makes the argument that Question F isn’t proper charter material because it doesn’t relate to the “form and structure” of city government: two ballot questions related to a “baby bonus” and a property-tax cap were thrown out in late August under the same argument.

The justices weren’t so certain that argument applied in this case.

“This is unchartered territory as far as case law is concerned,” said Justice Brynja Booth.

Chief Justice Matthew Fader suggested that under Maryland law “form and structure” applied to charter amendments brought forth by citizens, not legislative bodies like the Baltimore City Council.

Here too, the justices wondered why if “form and structure” was a concern, why was the challenge not brought forth earlier?

In his arguments on behalf of Baltimore City, attorney Michael Redmond, countered Vignarajah’s claims that language is unintelligible.

“The average Baltimorean would know this area,” he said. “It is familiar to people who live and vote in Baltimore.”

The Maryland Supreme Court is expected to have a decision expeditiously, potentially within days. Early voting begins on October 24th.

Question F (as printed on ballot)

Charter Amendment Inner Harbor Park Question F is for the purpose of amending the provision dedicating for public park uses the portion of the city that lies along the Northwest and South Shores of the Inner Harbor, south of Pratt Street to the water's edge, east of Light Street to the water's edge, and north of the highway to the water's edge, from the World Trade Center around the shoreline of the Inner Harbor including Rash Field with a maximum of 4.5 acres north of an easterly extension of the south side of Conway Street plus access thereto to be used for eating places, commercial uses, multifamily residential development and off-street parking with the areas used for multifamily dwellings and off-street parking as excluded from the area dedicated as a public park or for public benefit.

Current Charter Amendment

§ 9. Inner Harbor Park. There is hereby dedicated to public park uses for the benefit of this and future generations of the City of Baltimore and the State of Maryland the portion of the City that lies along the north, west and south shores of the Inner Harbor, south of Pratt Street to the water’s edge, east of Light Street to the water’s edge and north of Key Highway to the water’s edge, from the World Trade Center around the shoreline of the Inner Harbor to and including Rash Field, except that, in order to provide eating places and other commercial uses, areas totalling not more than 3.2 acres plus access thereto, within the dedicated space and north of an easterly extension of the south side of Conway Street shall be set aside for such purposes; and except that in order to provide outdoor eating places for the areas known as West Shore Park and Rash Field, areas totalling not more than 0.5 acres within the dedicated space and south of an easterly extension of the south side of Conway Street shall be set aside for such purposes; and except that an area of not more than 3.4 acres shall be set aside for use by the Maryland Science Center, plus access thereto. (Res. 16-029, ratified Nov. 8, 2016.)