Yet again, General Assembly moves to regulate speech

But this time they say it’s not going to be struck down by the courts as unconstitutional, really and truly, cross their hearts. A federal court has temporarily blocked California’s Age-Appropriate Design Code Act of 2022, ruling in favor of challenger NetChoice on free speech grounds. What is called the Maryland Kids Code, sponsored by Del. Sara Love (D-Montgomery), has similar aims and would bar various common online design features when aimed at kids, including video auto-play and frequent notifications. From the NYT:

(The New York Times and the Student Press Law Center filed a joint friend-of-the-court brief last year in the California case in support of NetChoice, arguing that the law could limit newsworthy content available to students.)

NetChoice has similarly objected to the Maryland Kids Code. In testimony last year opposing an earlier version of the bill, Carl Szabo, NetChoice’s vice president and general counsel, argued that it impinged on companies’ rights to freely distribute information as well as the rights of minors and adults to freely obtain information.

Maryland lawmakers say they have since worked with constitutional experts and amended it to address free speech concerns. The bill passed unanimously.

Unanimously! The legislators must be awfully confident the constitutional issues were fixed. More from NetChoice, asking Gov. Moore to veto the measure, here.

“We are technically the second state to pass a kids code,” said Delegate Jared Solomon, a Democrat who sponsored the children’s code bill. “But we are hoping to be the first state to withstand the inevitable court challenge that we know is coming.”

Oh, so it’s “hoping,” which may or may not be the same thing as “awfully confident.” We’ll see.

Frederick panel on ranked choice voting

Ranked choice voting is on the move in Frederick! I was glad to participate in an outstanding panel discussion held Wed., Nov. 29 at the C. Burr Artz Library downtown and sponsored by the county chapter of the League of Women Voters. Others on the panel included Frederick County election director Barbara Wagner; Jeremy Rose of FairVote; Hood College math professor Sara Malec; and Stuart Harvey, the county’s former election director and also a member of the city’s charter review committee, which handed down a report unanimously endorsing RCV in principle. Ryan Marshall of the Frederick News-Post covered the event and had written up another explanatory piece previewing it. Thanks to him for quoting me in both pieces. In September we threw a party on the subject.

P.S. In a Nov. 15 letter to the editor at the Frederick News-Post, Willie J. Malone, president of the Frederick County chapter of the NAACP, has positive words for the idea: “Ranked-choice voting allows greater choice and weight to a person’s vote…. [It] militates against the ‘lesser of two evils’ syndrome. It also makes for a more diverse array of candidates and platforms, and increases the viability of women and candidates of color.”

Juvenile crime and the Maryland General Assembly

Here’s a startling line from a Capital News Service/Maryland Reporter story on juvenile crime on the Eastern Shore: “Cambridge Police Chief Justin Todd and [Cambridge Mayor Stephen] Rideout referred to the case of a child under 13 accused of stealing 11 cars in Dorchester County.”

Stealing 11 cars! And by complete coincidence, a 2022 Maryland law provides that persons under 13 can no longer be charged with nonviolent crimes, even felonies. Instead they and their families get diverted to social services and the like, assuming process is pursued against them at all.

It would be nice to think that was a solution.

In Dorchester County, where police say youth crime has spiked since the law went into effect in June 2022, law enforcement and community leaders are questioning whether the CINS process offers adequate options for interventions to address the reasons for youth crime, while allowing law enforcement to protect the public….

If a CINS case goes to court, a judge can order evaluations or services for youth and families, but courts have no means to enforce their decisions….

“The (Act) really ties the hands of everybody,” Todd said. “…Because you can mandate them to go to services, but if they come back to court a month later. Did you do the services? No. There’s no next step, and that makes it very difficult.”

Another recent Maryland law severely restricts police investigators from asking questions of juveniles without a lawyer present. State’s attorneys such as Charles Smith of Frederick County as well as police have consistently criticized both laws as contributing to a youth crime wave. Supporters of the laws have responded with misleading statistical defenses about how arrest and conviction numbers don’t bear out the popular sense of a wave of youth crime — although much of the point is that the crimes no longer result in conviction, or even to arrest if that seems futile.

Car theft can seriously disrupt the daily life as well as the finances of victims, making it harder to, for example, hold down a job. Pleading with a young criminal’s family to accept social services and counseling doesn’t seem like an adequate substitute for the rule of law.

Grading Maryland’s redistricting performance

A new 50-state survey of redistricting released by Common Cause favorably contrasts the work of the Maryland Citizens Redistricting Commission with that of the competing panel set up by the legislature to draw districts.  

In an account for Maryland Matters, Bryan Sears quotes Dan Vicuña, national redistricting director for Common Cause: “‘Maryland is an unusual case,’ said Vicuña. ‘…Having a governor of a different party produce less partisan maps did play somewhat of a role in the outcome of writing some options for a court when congressional maps were struck down as a violation of the state constitution.’” That’s interesting because it draws a direct line from the work of our commission to the later court review, culminating in an impressive decision by Judge Lynne Battaglia, that was to result in the adoption of an alternative plan with fairer, less partisan and more compact Congressional districts. 

Report: Maryland receives C grade for legislative, congressional redistricting

The Common Cause report can be read here (see p. 42). Among highlights:

Advocates noted that the governor’s commission managed to draw more majority-minority districts than the legislature did.

[They also] noted that while there were marked improvements in transparency and engagement in the legislative redistricting process over the 2011 redistricting cycle, the state legislature still drew lines largely behind closed doors, whereas the governor’s advisory commission had public deliberations as they drew maps. Therefore, although both the state legislature and the governor’s commission took public input across the state, the map-drawing by the state legislature that was ultimately adopted was not done publicly. The state legislature also gave very short notice to the public about when their hearings were taking place, provided minimal public education and information dissemination, and provided the public with no justification as to how their maps were drawn and no details on who worked with them to draw their maps.

The report also includes a memorable quote from Joanne Antoine of Common Cause Maryland about the General Assembly’s speedy adoption of the insider-drawn maps: “People are disengaged because they know their feedback will receive very little consideration… Common Cause MD is taking no position because the outcome is preordained.”

That preordained result was alas to govern the state’s adoption of legislative districts, even as thanks to Judge Battaglia’s courageous decision the revision of Congressional districts was to be placed on a better path.

I’m a guest on the Conduit Street Podcast

I had fun joining Michael Sanderson and Kevin Kinnally on the Maryland Association of Counties’ Conduit Street Podcast, a must-listen in Maryland governance circles. It’s my second appearance. Topics ranged from election law, including speedier tabulation, ranked choice voting and poll worker security, to COVID in retrospect and Trump’s legal woes. Give it a listen here.

We give a party for ranked choice voting

We had a grand time hosting a party this month here in Frederick County to introduce friends, neighbors and interested onlookers to ranked choice voting and how it works. Despite a rainy forecast a diverse crowd of more than fifty assembled to participate in what turned out to be a surprisingly close three-round contest for which of five home-baked cookies was the crowd favorite, with oatmeal finally winning in a tiebreaker against a strong finish by ginger snaps. Photo by Kat Murti, Instagram. 

About half the RSVPs were from Frederick County and half from away, with pretty much every point on the political spectrum represented, including neighbors, people active in Maryland politics and civic life, think tankers, and friends. Among highlights were remarks from FairVote founder Cynthia Richie Terrell.

That’s not the only way RCV, as it’s called, is on the move locally. The city of Frederick’s charter review committee last week announced its recommendations for changes in how the city is governed. [Final draft report here.] To quote Ryan Marshall of the Frederick News-Post:

The committee said the city should give “serious consideration” to implementing ranked-choice voting in future city elections. The city’s Board of Supervisors of Elections should be consulted and help the city leadership figure out the best approach for implementing ranked-choice voting….

[At present the approved ballot systems] can’t process ballots that use ranked-choice voting, committee member Stuart Harvey said after Thursday’s meeting….

If Frederick moved to ranked-choice voting, the city may not be able to get assistance from Frederick County, and may have to operate and tally its own votes until the state acquires a system that can accommodate the practice, Harvey said.

The committee’s recommendation also calls for the city to “advocate to state election officials and to the Maryland Legislature that tools and/or legislation be created to permit implementation of [ranked-choice voting].”

And mark your calendars: on Nov. 29 the Frederick County chapter of the League of Women Voters will host an education forum on ranked choice voting for the general public. I’m slated to be a panelist, along with Stuart Harvey and others.

Maryland regularly blocks private university degree programs. It shouldn’t.

I’ve got a new article in Reason on an unusual regulatory arrangement in Maryland that requires universities to ask permission of the state higher education commission to start new degree programs, and invites rival institutions to file objections on the grounds that they would be harmed by the resulting competition for students.

In short, it replicates for higher education the kind of “certificate of need” rules strongly criticized by libertarian thinkers in the realm of health care. As in health care, I write, the “result can be state‐​enforced cartel arrangements that protect inefficient incumbents, slow innovation, and leave consumers with fewer and less attractive choices.”

The Maryland program is not, for the most part, rationalized as a matter of cost containment and, in fact, is very poorly suited to such a purpose. It does nothing to curb the number of students that can be admitted, only the opportunities they can be given. In practice, the rules often protect incumbent programs with low rates of student completion, which are among the worst offenders in contributing to government spending and burdensome student debt.

The fiercest disputes under the law tend to be over degrees in sought‐​after professional fields like business, engineering, and computer technology. (The Maryland Higher Education Commission guidelines provide that basic liberal arts programs are not normally suitable subjects for objection since colleges have a core interest in offering them.)

Contrary to the picture sometimes painted by “campus life gone wild” accounts, the top fields in which Maryland’s major state system awards degrees are sober and career‐​oriented: business, computers, and health professions. (All the social sciences combined, including economics and political science, come in as fourth.)

After documenting some recent battles under the law, worsened by a racial angle in which the state tries to bend over backwards to assist historically black colleges and universities (HBCUs), I quote a Baltimore Sun editorial: “The insanity of it” is that the conflict has little to do with the well‐​being of the students and “everything to do with protecting the institutional prerogatives and egos of the schools.” The best way to promote students’ interests, I argue, would be to allow competition and choice. You can read the piece here. [cross-posted from Cato at Liberty]

Flying Dog flies away, bad policy to blame

The FNP’s UnCapped podcast reports:

“FX Matt Brewing Company and Flying Dog Brewery today announced that FX Matt Brewing Company is acquiring Flying Dog and is in the process of looking for a location for a Flying Dog taproom, to include an innovation brewery, in Frederick, MD.

FX Matt Brewing Company, founded in 1888 and the 4th longest-running family-owned brewery in the United States, has been brewing many of Flying Dog’s beers over the last ten years due to limitations at Flying Dog’s Frederick brewery. Flying Dog will shift all production to FX Matt over the course of the summer and is expected to cease operations sometime in August. This will be a seamless transition with all Flying Dog beers being brewed at FX Matt Brewing in New York until a taproom and innovation brewery opens in Frederick.”

A few years ago I followed the struggles in Annapolis over whether the General Assembly would relax and modernize antiquated Maryland laws that insulate beer wholesalers and other established businesses from competition so as to give independent brewers a fair chance. The wrong side (i. e. the incumbents seeking to protect their “three-tier” market position) won. And now arrives the predicted and foreseen consequence: Frederick is losing perhaps its premier business, Flying Dog Brewery, which will be brewed and managed from New York. (We’ll get some sort of “innovation brewery” as a consolation prize.)

More from the Baltimore Sun:

Flying Dog, the state’s largest producer of craft beer, had put major expansion plans on hold in 2017 because of legislation regarding state brewery regulations, Caruso said at the time. The brewing company had bought nearly 32 acres of farmland near Frederick Municipal Airport for $2.55 million to create a brewery five times the size of its current 50,000-square-foot facility.”

From the press release: “Frederick is a great place to live and do business. Unfortunately, even though we have invested millions of dollars in the [old] brewery, it has too many limitations and puts Flying Dog at too great a competitive disadvantage.”

Politics shouldn’t matter so much in our lives, but it does.

City of Frederick should consider ranked choice voting

I enjoyed presenting to the City of Frederick charter review committee on the case for ranked choice voting, alongside Jeremy Rose of FairVote. From Ryan Marshall’s coverage in the FNP:

Ranked choice voting provides more information about voters’ real preferences, said Walter Olson, a New Market resident who served as co-chair of former Gov. Larry Hogan’s Maryland Citizens Redistricting Commission.

It also helps prevent third-party candidates from intentionally or accidentally siphoning off support from other candidates, he said.

A former Republican who is now unaffiliated, Olson said some in his former party have spread misinformation about how ranked choice voting works. But Republicans could expect to do just as well under a new system in areas where they are popular, he said.

Ranked choice voting has sometimes drawn suspicion from the left because it’s a way to nominate more centrist Democrats, he said.

So far in Maryland, Takoma Park is the only municipality that uses ranked choice voting, Olson said.

But there has been interest from communities around the state, including in Prince George’s and Howard counties, he said.

He warned the committee against trying to put too many restrictions on ranked choice voting into the charter, recommending that details be left to the city clerk, who administers the city’s elections.

Keeping them out of the charter would make it easier to make a change if it’s clear that something isn’t working properly, he said.

End of session update

Mostly, though not uniformly, good outcomes on bills I wrote about:

HB 294, a bad bill shifting the burden in special ed hearings against the school district being accused of noncompliance, passed the House of Delegates unanimously (yikes!) but fortunately died in the Senate triple-E committee (Education, Energy, and the Environment) following a March 29 hearing.

HB 119, a giant power grab over K-12 curriculum that would have severely curtailed the discretion of both teachers and school districts about how to teach, passed the House of Delegates 96-37 but also died in the Senate triple-E committee.

HB 259 and SB 113, which were meant to establish a legal basis for unfair “public nuisance” suits against gunmakers, both died in the relevant committees (Judiciary and Judicial Proceedings).

Ho. Co. 10-23, a bill proposed by the Howard County delegation that would have bizarrely reconfigured the selection process for the county school board in such a way as to disenfranchise county voters, died after the delegation’s leadership declined to introduce it.

SB 387 would have created a task force to examine excessive emergency room wait times, an issue I wrote about in December. It passed the Senate 47-0, but died in the House Rules and Executive Nominations committee.

Finally, and disappointingly, HB 344 and HB 334, which would have authorized Montgomery County to adopt ranked choice voting for county-level offices and directed procurement of election equipment compatible with RCV, died in the House Ways and Means Committee. I wrote in favor of the bills in a January 27 Baltimore Sun op-ed.