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Lamone v. Lewin

Court of Appeals of Maryland

July 31, 2018

Linda H. Lamone
v.
Nancy Lewin, et al.

          Argument: May 2, 2018

          Circuit Court for Anne Arundel County Case No. C-02-CV-18-001013

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          McDonald, J.

         Under Maryland law, the State Board of Elections ("State Board") and the local election boards have the often formidable task of conducting elections fairly, efficiently, and even-handedly. To that end, the General Assembly has directed the State Board "to ensure compliance with the requirements of [the Election Law Article]" and any federal law relating to the election process.[1] This case raises the question whether the State Board has discretion to deviate from the directives of the Election Law Article concerning the content of a primary election ballot and whether its adherence to those directives violated the State and federal constitutions.

         Nathaniel Oaks, a longtime State legislator, filed a timely certificate of candidacy for the 2018 primary election for the State Senate seat that he held and for a position on his party's central committee. Before the primary, but after the deadlines for withdrawal of his candidacy and removal of his name from the ballot, he pled guilty to two felonies in federal court. The guilty plea itself did not disqualify him from holding office, but service of a prison sentence for those offenses would. After the State Board included his name on the certified primary election ballot in accordance with the relevant provisions of the Election Law Article, Appellees Nancy Lewin, Elinor Mitchell, and Christopher Ervin - two of whom were rival candidates for the central committee - filed this suit against Appellant Linda Lamone in her official capacity as State Administrator of Elections to have Mr. Oaks' name removed from the ballot.

         The Appellees later filed a motion for an injunction to compel the State Board to remove Mr. Oaks' name from the ballot on the ground that he would likely receive a prison sentence that would render him disqualified before the general election. The Circuit Court declined to grant the injunction, on the basis that Mr. Oaks' disqualification from office, though likely, was not yet certain. Shortly thereafter, Mr. Oaks gave up his voter registration, rendering him disqualified for office because he was not a registered voter. The Circuit Court then issued the requested injunction, ordering the State Board to remove Mr. Oaks' name from the primary election ballot, despite the fact that such an action was contrary to the Election Law Article.

         The State Board appealed. We reversed the Circuit Court in a per curiam order. We now state our reasons for that decision.

         I

         Background

         A. State Election Law - Candidacy in a Primary Election

         Eligibility

         A minimum requirement for eligibility to serve in any office created pursuant to the Maryland Constitution - such as State Senator - is that one must be a registered voter on the date of election and throughout the entire term of service. Maryland Constitution, Article I, §12. Similarly, to be a candidate for an office of a political party or to be a nominee of that party one must be a registered voter affiliated with that party. Maryland Code, Election Law Article ("EL") §5-203(a)(2).[2] An individual who has been convicted of a felony and is serving a sentence of imprisonment for that conviction is not qualified to be a registered voter. EL §3-102(b)(1). Thus, during such imprisonment, that individual may not hold public or party office in Maryland.

         Deadlines for Candidates in Primary Elections

         The Election Law Article sets certain deadlines for a candidate to appear on the ballot in a primary election. There are three deadlines relevant to this case.

         First, one must file a certificate of candidacy by "the last Tuesday in February in the year which the primary election will be held." EL §5-303(a)(1).[3] For the 2018 primary election, that deadline was February 27, 2018.

         Second, if a candidate has a change of heart and no longer wants to run in the primary election, the candidate must file a certificate of withdrawal within two days after the deadline for filing a certificate of candidacy. EL §5-502(a). If the candidate withdraws by the statutory deadline, the previously-filed certificate of candidacy is void and the person's name is not to appear on the ballot. EL §5-504(a). For the 2018 primary election, the withdrawal deadline was March 1, 2018.

         Third, if a person has filed a timely certificate of candidacy, but the pertinent board of elections learns, by the 10th day after the deadline for filing that certificate, that the person has died or become disqualified for office, the person's name is not to appear on the ballot. EL §5-504(b); EL §5-601(1)(ii). For the 2018 primary election, that deadline fell on March 9, 2018.

         If a person has filed a timely certificate of candidacy, but has not filed a timely certificate of withdrawal, or died or become disqualified (to the knowledge of the board of elections) by the statutory deadline, the name of the candidate "shall appear on the primary election ballot." EL §5-504(b); see also EL §5-601 (the name of the candidate "shall remain on the ballot and be submitted to the voters"). If a candidate in a primary election garners the most votes as a party's nominee in the primary election but wishes to decline the nomination or dies or becomes disqualified for the office, the party is to choose a successor nominee according to the Election Law Article. EL §§5-801, 5-1001 et seq.[4]

         Deadline for Ballot Certification and Overseas Ballots

         The State Board is to certify the content and arrangement of the ballots for a primary election at least 55 days before the election. EL §9-207(a)(1). Because different candidates stand for various offices in different districts and localities, there are multiple versions of the primary election ballot - referred to as "ballot styles" - that correspond to the various permutations pertinent to particular geographical areas. According to the State Board, there were 747 different ballot styles related to the 2018 primary election.

         Within 24 hours after certification, the State Board is to publicly display the content and arrangement of the ballots on its website. EL §9-207(c). Unless a court orders otherwise, the content and arrangement of the ballot may not be changed after the second day of public display and the State Board may begin printing ballots. EL §9-207(d)-(e).

         These deadlines are specified to ensure that the State Board has time to comply with federal law that requires that absentee ballots be available to military and overseas voters at least 45 days before the election. Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. §20302(a)(8)(A). For the 2018 primary election, that deadline was May 12, 2018.

         B. Candidacy in the 2018 Primary Election

         Generally

         According to statistics compiled by the State Board, it received 2, 563 certificates of candidacy for the 2018 primary election by the February 27 deadline and 77 certificates of withdrawal by the March 1 deadline. The State Board became aware of the death or disqualification of eight candidates by the March 9 deadline and removed their names from the ballot. The State Board received approximately 10 requests from candidates to withdraw after the statutory deadline, which were all rejected on grounds of lateness.

         Mr. Oaks, his Candidacy, and his Criminal Prosecution

         Mr. Oaks had served as a member of the House of Delegates for nearly 30 years when he was appointed to fill a vacancy in the State Senate for Legislative District 41 on February 10, 2017. See https://msa.maryland.gov/msa/mdmanual/05sen/former/ html/msa12285.html (last visited July 18, 2018).

         On April 7, 2017, Mr. Oaks was initially charged in a criminal complaint in the United States District Court for the District of Maryland with wire fraud, a felony under the federal criminal law. United States v. Oaks, No. 1:17-CR-00288-RDB (D. Md.). On May 31, 2017, a federal grand jury superseded that complaint by returning an indictment comprised of nine felony counts. The charges all related to "corrupt use of his office in a bribery scheme." See United States v. Oaks, 302 F.Supp.3d 716, 718 (D. Md. 2018). Mr. Oaks pled not guilty to the charges; pretrial motions challenging the indictment were filed and litigated on his behalf. Id.

         The filing of the criminal charges alone did not disqualify Mr. Oaks as a registered voter, as a candidate for office, or, for that matter, as an incumbent office holder. As indicated above, he would be disqualified in all three respects if and when he was convicted and imprisoned with respect to those charges.

         While the criminal charges remained pending against him, Mr. Oaks filed a timely certificate of candidacy for the State Senate seat that he held, as well as for the Democratic Central Committee for District 41 in Baltimore City. Mr. Oaks did not withdraw his candidacy by the March 1, 2018 deadline. Nor had the State Board learned of anything by the March 9, 2018 deadline that disqualified Mr. Oaks as a candidate, as indeed he was not disqualified as of that date. Accordingly, under the State election law, his name was to appear on the primary election ballot.

         On March 29, 2018, Mr. Oaks pled guilty, pursuant to a plea agreement, to two counts in the federal criminal case. The maximum penalty for both of the offenses to which he pled guilty included 20 years imprisonment. Sentencing was scheduled for July 17, 2018. Like the indictment, the guilty plea itself did not disqualify Mr. Oaks from being a registered voter, from being a candidate for office, or from holding office. He would become disqualified in all three respects if and when he were to serve a sentence of imprisonment as a result of that plea. On the same day that he pled guilty, Mr. Oaks resigned from his State Senate seat.

         Certification of 2018 Primary Ballots

         The State Board certified the primary election ballots on April 3, 2018 and, in accordance with the statute, posted them on its website the next day. Because Mr. Oaks had not filed a certificate of withdrawal nor become disqualified as a voter or candidate (even as of the date of his resignation from the Senate), the State Board included his name as a candidate for the State Senate and Democratic Central Committee on the pertinent primary election ballots that it certified.

         C. Legal Proceedings

         Complaint

         On April 9, 2018, almost a week after the ballots for the primary election had been certified, the Appellees filed this action in the Circuit Court for Anne Arundel County against Ms. Lamone in her official capacity as State Administrator of Elections. The Appellees were all registered voters in District 41; both Ms. Mitchell and Mr. Ervin were candidates for the Democratic State Central Committee for that district.

         The complaint alleged that the State Board was allowing "the name of a person who will be disqualified" from the general election and from serving as State Senator to remain on the primary election ballot. Having Mr. Oaks' name on the ballot, the complaint alleged, would confuse voters, cause voters to mistakenly vote for Mr. Oaks despite his anticipated disqualification, and violate the federal and state constitutional rights of the voters within the district. The complaint asked the court to compel the State Board to remove Mr. Oaks' name from the primary election ballot.

         The Appellees brought their lawsuit under EL §12-202. Under that statute, a registered voter may seek judicial relief from a State Board action or omission relating to an election on the grounds that the act or omission is "inconsistent" with applicable election laws and "may change … the outcome of the election." EL §12-202(a)(1)-(2).[5] Prior to an election, suit must be filed within 10 days after the act or omission allegedly inconsistent with the election law - or within 10 days after the act or omission became known to the plaintiff. EL §12-202(b)(1). The complaint also asked the court to issue a writ of mandamus against the State Board, and sought declaratory and injunctive relief.

         Denial of Motion for TRO or Preliminary Injunction

         One week after the complaint was filed, the Appellees filed an amended complaint and a motion for a temporary restraining order ("TRO") and a preliminary injunction directing the State Board to take Mr. Oaks' name off the ballot. In that motion, they argued that the election law deadlines for removing names from the ballot are directory rather than mandatory, that the State Board therefore had discretion to remove Mr. Oaks' name, and that its failure to do so was arbitrary and capricious. Alternatively, the Appellees asserted that, if the provisions of the Election Law Article are mandatory, the statute was unconstitutional as applied in this instance.[6] The Circuit Court denied the motion for a TRO and scheduled a hearing concerning the request for a preliminary injunction.

         On Friday, April 20, the Circuit Court held a hearing on the motion for a preliminary injunction. At the hearing, the State Board argued that it had no discretion to remove Mr. Oaks' name from the ballot in light of the statutory deadlines for doing so. It also presented evidence that, in any event, it would be difficult to remove Mr. Oaks' name from the ballot, even if it was legally permissible to do so. Natasha Walker, the Project Manager of Election Management Systems for the State Board, who was responsible for coordinating the layout and printing of ballots, submitted an affidavit and testified at the hearing about the process of preparing the ballots for the primary elections. She stated that creation of the 747 different ballot styles in various formats (e.g., specimen ballots, election day ballots, absentee ballots, audio ballots, etc.) required eight days. An additional week was needed for a local election board in a larger jurisdiction such as Baltimore City to verify that the ballot styles aligned correctly with precincts. According to Ms. Walker, Mr. Oaks appeared on two of the ballot styles, which were assigned to 50 election precincts and seven early voting centers. Any change to a ballot would necessitate restarting the process and result in a delay of at least a week. She stated that ballot preparation was complete and that printing was to begin on the Monday after the Friday hearing and was expected to take approximately three weeks. As of the date of the hearing, she stated it would be "doable" but "very challenging" to make any changes in the ballots.

         The Circuit Court denied preliminary injunctive relief. The court reasoned that, while it was "virtually certain" that the sentence that Mr. Oaks ultimately would receive in the federal criminal case would disqualify him in the future from participating in the general election, he was not yet disqualified and that his future disqualification remained "legally speculative." Accordingly, it was not a basis for granting a preliminary injunction. The court did not express an opinion on whether EL §5-504(b) and §5-601 are mandatory or directory or on the constitutionality of those provisions.

         Mr. Oaks Withdraws his Voter Registration

         The following Monday, April 23, 2018, the State Board began printing the primary election ballots. That same day, Mr. Oaks withdrew his Maryland voter registration at the behest of the Appellees. In his letter to the local election board he stated that he was doing so "[t]o facilitate removal of my name from election ballot."

         Circuit Court Grants Preliminary Injunction

         In light of the fact that Mr. Oaks had relinquished his voter registration to disqualify himself from office, the Appellees filed a second amended complaint and asked the Circuit Court to reconsider their request for a preliminary injunction. The State Board filed an opposition, including a supplemental affidavit of Ms. Walker stating that ballot printing had already begun and that, for a variety of reasons that she detailed, making changes to ballots at that stage was "not feasible."

         On April 26, 2018, without holding a hearing, the Circuit Court granted the preliminary injunction. It ordered the State Board to "immediately remove" Mr. Oaks' name from "any and all ballots for elective office." In its two-page order, the Circuit Court noted that Mr. Oaks had disqualified himself as a candidate by virtue of his voluntary removal from the voter registration rolls. As a consequence, the court reasoned, "the harm to the voters by way of potential confusion, inadvertence, and/or mischief by the appearance of a disqualified name on the ballot far outweighs any inconvenience to the Board of Elections." The court also concluded that there was "no less comprehensive remedy" other than taking Mr. Oaks' name off of the ballot to make sure "that the voters' rights to effectively exercise their franchise will be protected."

         In the order, the Circuit Court stated that it believed that there was sufficient time before the primary election for the State Board to revise the primary election ballots, and that any work on the ballots that the State Board had done between the denial of a preliminary injunction on April 20, 2018, and the grant of the motion on April 26, 2018, had been done with notice that the "matter remained in active litigation." As a result, the court said, the State Board could not claim that its position had been prejudiced. The court further concluded that the Appellees were likely to prevail on the merits of their claim, although it did not provide any analysis of the legal issues. Finally, the court found that the balance of convenience favored the Appellees and that the public interest would be served by issuance of the injunction.[7]

         The State Board immediately filed a notice of appeal and a petition for a writ of certiorari in this Court pursuant to EL §12-203(a)(3). On April 27, 2018, we granted certiorari and stayed the preliminary ...


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