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State Board of Elections v. Snyder

Court of Appeals of Maryland

September 27, 2013

STATE BOARD OF ELECTIONS
v.
CLIFFORD E. SNYDER, JR. ON BEHALF OF CARL PHILLIP SNYDER, HIS SON & STATE BOARD OF ELECTIONS
v.
RICHARD D. BOLTUCK ON BEHALF OF SARAH ELIZABETH BOLTUCK, HIS DAUGHTER

Harrell, Battaglia, Greene [*] Bell [*] Murphy Wilner, Alan M. (Retired, Specially Assigned) Cathell, Dale R. (Retired, Specially Assigned), JJ.

OPINION

Bell, C.J. (Retired).

This case, consolidated actions brought by the appellees, Carl Snyder ("Snyder") and Sarah Boltuck ("Boltuck"), 17 year-olds, who would have been 18 by the 2008 general election, presents a narrow issue: whether under Maryland law, 17 year-olds who will turn 18 by close of registration for the general election and, thus, are eligible to vote in the partisan primary election preliminary to, and associated with, that election, may vote in non-partisan primary elections, in this case, for county school boards in Frederick and Montgomery counties, respectively. This issue has its genesis in Lamone v. Capozzi, 396 Md. 53, 912 A.2d 674 (2006). In that case, this Court held unconstitutional legislation that would have authorized early voting.[1] Id. 396 Md. at 93, 912 A.2d at 697. Critical to that legislation, in addition to permitting voting on more than one day as the Maryland Constitution prescribed, was a provision that permitted a voter to vote in a polling place other than his or her election ward or district. Id. at 64–65, 912 A.2d at 680–81.

Relevant to this case, we held that the latter provision conflicted with, and was therefore violative, of Article I, § 1 of the Maryland Constitution, which provides:

"All elections shall be by ballot. Except as provided in Section 3 of this article, every citizen of the United States, of the age of 18 years or upwards, who is a resident of the State as of the time for the closing of registration next preceding the election, shall be entitled to vote in the ward or election district in which the citizen resides at all elections to be held in this State. A person once entitled to vote in any election district, shall be entitled to vote there until the person shall have acquired a residence in another election district or ward in this State."

Construing this provision, we stated, "It is clear from Article I, § 1, that a voter can only vote in the election ward or district in which he resides." Capozzi, 396 Md. at 84, 912 A.2d at 692. As the appellant, the Maryland State Board of Elections ("the appellant, " "MSBE, " or "Board") submits, we further explained that "[t]he phrase, 'shall be entitled to vote in the ward or election district in which he resides, ' modifies the preceding phrase '[e]very citizen of the United States, of the age of 18 years or upwards, who is a residen of the State as of the time for the closing of registration next preceding the election. . . . The phrase, as a whole, designates who is allowed to vote, if they so choose." Id. at 85 912 A.2d at 692.[2] We concluded:

"The location at which a citizen can vote also is a requirement. Even under the strained interpretation that the appellants give the phrase, 'shall be entitled to vote in the ward or election district in which he resides, ' the subsequent language of Article I, § 1 bars voting in an election district or ward that a person does not live in. Article I, § 1 states that a person shall be entitled to vote in the ward or election district where he resides until he acquires residence in another election district or ward. Therefore, once a voter who resides and votes in a particular ward acquires residence in another election district or ward, that voter's right, his or her entitlement, to vote in the ward where he or she once resided is extinguished. If he or she has the right to vote it is in the newly acquired district or ward."

Id.

The Court then rejected the State's alternative argument that the early voting statute was constitutional with respect to primary elections since those elections were not within the reach of Article I, § 1. Id. at 89, 912 A.2d at 695. We adopted the trial court's analysis and reasoned:

"[I]f Article I, § 1 were read to exclude primary elections, 'such a reading could lead to an absurd result, as it would eliminate all Constitutional qualifications for primary elections. Thus, a 12 year-old, non-U.S. citizen, residing in Virginia, would not be barred by the [Maryland] Constitution from voting in the Maryland primary election.' Such a reading simply cannot be correct."

Id. Thus, we held that "primary elections are included within the meaning of the phrase, 'at all elections to be held in this State' in Article I, § 1." Id.

Following our decision in Capozzi, the appellant asked the Attorney General for advice as to the effect of that decision on the right of persons under 18 to vote in primary elections. That course was dictated because, prior to December 2006, when the opinion was issued, the Board had construed Maryland Code (2003, 2004 Cum. Supp.) § 3-102 of the Election Law Article ("EL"), [3] which implements Article I, § 1, to permit 17 year-olds to vote in primary elections. This interpretation was based on the Board's understanding that Article I, § 1 applied only to general elections and did not apply to primary elections. Therefore, before Capozzi, after becoming a registered voter pursuant to EL § 3-102 (a), an individual who would be 18 by the general election could vote in a primary election, even if not 18 by the date of the primary election.

The appellant reports that the Office of the Attorney General responded that "the inescapable consequence of this Court's interpretation of Article I, § 1 was that only individuals who will turn 18 before the next election (as opposed to the next general election) should be permitted to register." Subsequently, the Attorney General's Office of Opinions and Advice issued the advisory memorandum, "Age Requirement for Voting, " which advised that, based on this Court's interpretation of Article I, § 1 in Capozzi, 17 year-olds who would be 18 by the next general election were prohibited from voting in primary elections. Still later, the Attorney General responded to an inquiry from a state senator regarding the decision of the two major political parties to allow 17 year-olds who would be 18 by the general election to vote in their primary.[4] Specifically, the senator inquired into how the decisions affected, if at all, the Attorney General's advice to the State Board on the matter of 17 year-olds voting in primary elections.

In his response, the Attorney General acknowledged the First Amendment associational rights of political parties to determine who will "participate in the 'basic function' of selecting the Party's candidates, " Tashjian v. Republican Party of Conn., 479 U.S. 208, 216, 107 S.Ct. 544, 549, 93 L.Ed.2d 514, 524 (1986), and that, to burden those protected associational rights, there must be an overriding state interest. The Attorney General found no such state interest. Indeed, he found that EL § 3-102 (a), as historically understood and applied by the State Board, "expressed a legislative policy in favor of permitting such voters to exercise the franchise in the primary" – a policy that coincides with the associational interest recently embraced by the parties. He concluded that neither Article I, § 1, nor Capozzi "indicates a specific state interest in excluding from primary elections those 17 year-olds who will be 18 by the time of the general election." Therefore, the Attorney General recommended that the State Board permit 17 year-olds to vote in partisan primaries, which he believed to be in accordance with EL § 3-102 and the First Amendment.

Consistent with the Attorney General's advice letter, the Board adopted the following policy:

"A 17 year old who is a Democrat or Republican may vote in a primary election. However, if the voter lives [in a county with non-partisan contests on the ballot], the voter must vote by provisional ballot so that the local board of elections can ensure that the voter did not cast any votes in the non-partisan contests. If a vote was cast in a non-partisan contest, this vote will not be counted, and only votes that the 17 year old is entitled to cast (i.e., partisan contests) will be counted."

After exhausting their administrative remedies, as required, [5] Snyder[6] and Boltuck[7]filed separate complaints in the Circuit Court for Anne Arundel County against the MSBE seeking "judicial relief" pursuant to Maryland Code (2003) § 12-202 of the Election Law Article.[8] Snyder alleged that the MSBE violated several provisions of the Election Law Article, including §§ 3-102, 3-501, [9] and 8-802, [10] when it determined that he was ineligible to vote in the upcoming non-partisan elections. Snyder additionally alleged that the MSBE's administrative actions violated Article I, § 1 of the Constitution of Maryland, and Articles 8[11] and 24[12] of the Maryland Declaration of Rights. He requested an injunction to require the MSBE to allow him to vote by regular ballot, and to have his votes counted in the usual way in all contests on Frederick County's February 2008 ballot.[13] Boltuck filed her action on January 18, 2008. The action mirrored Snyder's complaint by seeking relief pursuant to EL § 12-202, and alleging that the MSBE violated several provisions of the Election Law Article. The Snyder and Boltuck complaints were then consolidated.

At the hearing, the MSBE argued that the Circuit Court should dismiss both complaints or, in the alternative, provide favorable summary disposition. It reasoned that Article I, § 1 of the Maryland Constitution, as interpreted by Capozzi, prohibited persons under the age of 18 from voting in non-partisan primary elections, even if they turn 18 before the subsequent general election.

The Circuit Court denied the MSBE's motion for summary judgment, granted the appellees' cross motion in part and, pursuant to the appellees' oral motion to amend, issued the following declaratory judgment:

"[A]ll 17 year old voters, whether or not affiliated with any political party, who will be 18 on or before the November 4, 2008 general election, shall be entitled to vote in both the partisan and nonpartisan primary elections on February 12, 2008, and it is further ORDERED that Defendant State Board of Elections may use provisional ballots in the February 12, 2008 primary elections for all 17 year old voters, whether or not affiliated with any political party, who will be 18 on or before the November 4, 2008 general election."

With respect to the issue this case presents, the eligibility of 17 year-olds to vote in non-partisan primary elections, the Circuit Court concluded that "the voter eligibility requirements of Article I, § 1 of the Maryland Constitution do not apply to non-partisan elections for Boards of Education, municipal elections, and local ballot questions that are not mandated by the Constitution." It found support for that interpretation of Article I, § 1 in Hanna v. Young, 84 Md. 179, 183, 35 A. 674, 675 (1896). There, this Court stated, "It is only at elections which the constitution itself requires to be held, or which the legislature, under the mandate of the constitution, makes provision, that persons having the qualifications set forth in said Article 1, § 1 are by constitution of the state declared to be qualified electors." Id. The Circuit Court concluded from this statement that Article I, § 1 and Capozzi's interpretation of it, were inapposite to this case and did not preclude registered 17 year-old voters from participating in a non-partisan primary election under EL § 3-102.

Pursuant to EL§ 12-203 (a) (3), [14] the MSBE noted its appeal of the Circuit Court's judgment. We subsequently exercised direct appellate jurisdiction to consider whether 17 year-old persons, who will be 18 at the time of the general election, are eligible to vote in the non-partisan primaries preceding that election.[15] On February 8, 2008, following oral argument, we answered that question in the affirmative and issued a per curiam order, with opinion to follow, vacating the order of the Circuit Court and remanding the case to that court, "with directions to enter a new Order and Declaratory Judgment not inconsistent with the following determinations:

"1. The provisions of Article I, Section 1 of the Maryland Constitution apply to primary elections conducted in Maryland.
"2. The foregoing notwithstanding, the voter eligibility provisions of Article I, Section I are not in conflict with the age provisions of Md.Code, Election Law Article, Section 3-102. Article I, Section I does not operate to prohibit The General Assembly from establishing the age provisions in Section 3-102.
"3. All 17–year–old registered voters who will be 18 on or before the November 4, 2008 general election, shall be entitled to vote in the primary elections to be held on February 12, 2008, including non-partisan elections for county boards of education.
"4. The foregoing notwithstanding, such 17–year–old voters may not vote in any special or municipal election conducted concurrent with the February 12, 2008 primary election.
"5. The State Board of Elections may use provisional ballots in the February 12, 2008 primary elections for all 17–year–old voters who will be 18 on or before the November 4, 2008 general election; and it is further
"ORDERED, that the judgment be entered on the respective motions for summary judgment consistent with the above declarations. Mandate to issue forthwith."

State Bd. of Elections v. Snyder, 403 Md. 172, 172–73, 941 A.2d 467 (2008). We now provide the reasons for our decision and order.

Article III, § 49 of the Constitution provides:

"The General Assembly shall have the power to regulate by Law, not inconsistent with this Constitution, all matters which relate to the Judges of election, time, place and manner of holding elections in this State, and of making returns thereof."

Pursuant to this mandate, [16] the General Assembly promulgated the State election law, see County Council for Montgomery County v. Montgomery Ass'n, Inc., 274 Md. 52, 60, 333 A.2d 596, 601 (1975), now codified as the Election Law Article. The Election Law Article expressly applies to all elections, general, primary, and special, and "unless otherwise specifically provided in this article, " excludes municipal elections except those in Baltimore City.[17] The provisions governing general, primary, and special elections are enumerated, and explicated, in Title 8, in Subtitles 2, 3, and 4, respectively. Also included in Title 8, in Subtitle 8, albeit exempted from some of the requirements pertaining to the other covered elections, [18] are the provisions that apply to, and govern, Board of Education elections. With the exception of ten counties and Baltimore City, county school boards are elected in countywide elections as provided in the State Code. See ยง 3-114 of the Education Article (1978, 2008 ...


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