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Voters Organized for Integrity of City Elections v. Baltimore City Elections Board

Court of Appeals of Maryland

January 23, 2017

Voters organized for the Integrity of City Elections, et al.
v.
Baltimore City Elections Board, et al.

          Argument: November 7, 2016

         Circuit Court for Baltimore City Case No. 24-C-16-005773

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten Wilner, Alan M. (Senior Judge, Specially Assigned), JJ.

          OPINION

          McDonald, J.

         There is a medieval legend concerning a Danish king named Canute whose domain included the British Isles and Scandinavia. To his contemporaries, his authority must have seemed boundless. Canute was less impressed. To demonstrate that his power was quite finite in the grand scheme of things, Canute invited his courtiers to the seashore where he commanded the incoming tide to halt - an order that was, as Canute intended to demonstrate, without effect.[1]

         An appellate court may sometimes find itself in a situation when, due to time or other circumstances beyond its control, it is asked to issue an order that, like King Canute's command to the sea, would be without practical effect. The appeal is said to be moot and, typically, the court dismisses it. Such is the case with this appeal.

         Appellants, Voters Organized for the Integrity of City Elections ("VOICE") and its founder Hassan Giordano, initiated this action just weeks before 2016 general election in the apparent hope of compelling Appellees, the State Board of Elections ("State Board") and the Baltimore City Board of Elections ("City Board" or "local board"), to establish a special system for "inmate voting" in Baltimore City for the 2016 general election. Their complaint sought relief on behalf of individuals who were detained pretrial or were incarcerated as a result of a misdemeanor conviction, who were eligible to vote, and who wished either to register to vote or, if already registered, to cast a ballot in the 2016 general election.

         While VOICE and Mr. Giordano may have had the laudable purpose of ensuring that those with the right to vote were able to do so, the timing and basis on which they took legal action raised a plethora of issues. The Circuit Court for Baltimore City denied their request for a broadly worded temporary restraining order ("TRO") on the ground that they had filed their complaint too late. Alternatively, the court concluded that, even if it overlooked the procedural default, they had failed to show, by the "clear and convincing evidence" standard in the statute, any act or omission by the election boards that threatened to change the outcome of the election.

         The expedited appeal of the Circuit Court's decision was argued before this Court on November 7, 2016 - the day before the 2016 general election. We dismissed the appeal as moot that same day and indicated that the case would be remanded to the Circuit Court to consider any further request for a declaratory judgment in accordance with an opinion to be issued by this Court. This is that opinion.

         I

         Background

         The Complaint - Parties and Jurisdiction

         On October 28, 2016, less than two weeks before the 2016 general election, VOICE and Mr. Giordano brought this action against the two election boards in the Circuit Court for Baltimore City. In its complaint VOICE stated that it is a "watchdog organization" that is comprised of Maryland voters concerned about the integrity of elections in Baltimore City and that operates "exclusively" in the City. Mr. Giordano was alleged to be a City voter and the founder of VOICE. The complaint did not identify any other members of VOICE or name any other individual plaintiffs.

         The complaint sought injunctive and declaratory relief with respect to all City and State detention centers and correctional facilities within the jurisdiction of the Circuit Court. The complaint alleged that the Circuit Court had jurisdiction of the action under the State Election Law - in particular, Maryland Code, Election Law Article ("EL"), §12-201 et seq. That provision is limited in scope and requires prompt action by one who seeks to invoke it. In particular, under that provision, a registered voter may bring an action with respect to any act or omission "relating to an election": (1) that is inconsistent with the State Election Law and (2) that may affect the outcome of the election. EL §12-202(a). Such an action must be brought either within 10 days after the alleged act or omission became known to the plaintiff, or within a specified number of days after the election (depending on whether it is a primary or general election) - whichever of the two dates is earlier. EL §12-202(b). The complaint also invoked the Maryland Uniform Declaratory Judgments Act, Maryland Code, Courts & Judicial Proceedings Article ("CJ"), §3-401 et seq.

         The Complaint - Factual Allegations

         The complaint appeared to relate the time of its filing to legislation enacted during the 2016 session of the General Assembly - specifically, Chapter 6, Laws of Maryland 2016 ("2016 legislation"). The 2016 legislation amended the statute that defines the qualifications for voting (EL §3-102) to limit the disqualification from voting for convicted felons to the period of the individual's incarceration. Prior to that amendment, a convicted felon would have also been disqualified from voting during any period of probation or parole. The amendment was enacted by the General Assembly over the Governor's veto and became effective March 20, 2016.

         The complaint then focused on two categories of individuals in custody who may be eligible to vote if they otherwise satisfy the general criteria applicable to all Maryland citizens[2]: (1) pretrial detainees who have not been convicted; and (2) individuals in custody only because they had been convicted of a misdemeanor offense.[3] (As will be seen below, however, the 2016 legislation had no effect on the voting rights of either of these categories of potential voters.) The complaint alleged that there were "hundreds" of individuals in State custody in those two categories who were eligible to vote.

         The complaint alleged that "the lack of a State strategy governing inmate voter registration and the casting of ballots in the upcoming election infringes upon the fundamental right to vote" of those individuals. More particularly, the complaint faulted the State, the counties, and Baltimore City for lacking a policy or plan to distribute ballots to pretrial detainees and incarcerated misdemeanants during the early voting period (October 27 through November 3, 2016) or on election day (November 8, 2016) and for not providing information about voting, voter eligibility, and voter registration during the intake process at detention centers and correctional facilities. The complaint alleged that, as a result, there would be "massive disenfranchisement" that threatened to affect the outcome of the 2016 general election. The complaint did not allege any details as to how the outcome of the election was likely to be affected.

         The Complaint - Causes of Action and Relief Sought

         Based on those factual allegations, the complaint alleged various causes of action and violations of the Election Law in six counts. It appears that some of the counts pertain to only one of the two defendant election boards, although the complaint is not always clear in that regard.

         Count I, apparently directed at both the City Board and the State Board, alleged a violation of the right to register to vote, as provided in EL §3-102, with respect to pretrial detainees and individuals serving sentences for misdemeanor convictions.

         Count II, apparently directed at the City Board alone, asserted that the local board had failed to carry out the powers and duties assigned to it by EL §2-202, [4] by not establishing a plan to ensure the opportunity to vote by pretrial detainees and individuals serving sentences for misdemeanor convictions.

         Count III, apparently directed at the State Board alone, alleged that the State Board had failed to carry out the powers and duties assigned to it by EL §2-102[5] by not establishing a Statewide plan to ensure the opportunity to vote by pretrial detainees and individuals serving sentences for misdemeanor convictions. That count also quoted State Board regulations that implemented same day voter registration at early voting centers. See COMAR 33.19.04.01 et seq.

         Count IV, apparently directed at both election boards, alleged a violation of the statutes governing applications for voter registration. See EL §3-201 et seq. The complaint asserted that these violations arose from a failure of the two election boards to allocate resources to provide volunteers to assist pretrial detainees and individuals serving misdemeanor sentences with registration and voting.

         Count V requested injunctive relief, presumably against both election boards, including a TRO, a preliminary injunction, and a permanent injunction, on the grounds that the plaintiffs (VOICE and Mr. Giordano) were threatened with irreparable harm, that the State would be "only slightly inconvenienced" by an injunction, and that the plaintiffs were likely to succeed on the merits of their claims. Count V did not itself specify the nature of the requested injunctive relief.

         Count VI requested declaratory relief, again presumably against both election boards, although, like Count V, it was not specific as to the declaration of legal rights that it sought.

         The Complaint - Relief Sought

         Finally, in a concluding prayer for relief, the complaint became specific as to what it asked the court to do. As will be evident, much of the relief sought would extend beyond Baltimore City throughout the State and some would appear to extend beyond the 2016 general election. In particular, the complaint asked the Circuit Court to order:

a. That all pre-trial detainees and individuals serving a court-ordered period of imprisonment for misdemeanor offenses who are eligible to vote, shall receive an official ballot and the opportunity to cast it on November 8, 2016 for the general election, or during early voting (October 27, 2016 - November 3, 2016);
b. That voting and election information including the opportunity to register shall be provided within 8 hours upon booking into each facility throughout the State of Maryland within the jurisdiction of this court;
c. That all pre-trial detainees and individuals serving a court-ordered sentence of imprisonment for misdemeanor offenses at a facility owned by the State of Maryland shall be provided with accurate education on their right to vote and the process for exercising that right;
d. That all pre-trial detainees and individuals serving a court-ordered period of imprisonment for misdemeanor offenses, who are duly registered to vote, shall be provided with a copy of the official general election ballot to review ballot questions, candidates and proposed funding questions relevant to their jurisdiction;
e. That the State and local board cover the cost of providing ballots to all eligible persons in a timely fashion that are clear and legible;
f. That the State and local board account for and maintain control over the ballots from the beginning of production to post-election storage and disposition in ...

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