Linda H. Lamone
Nancy Lewin, et al.
Argument: May 2, 2018
Circuit Court for Anne Arundel County Case No.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
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. 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.
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.
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.
State Board appealed. We reversed the Circuit Court in a
per curiam order. We now state our reasons for that
State Election Law - Candidacy in a Primary Election
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). 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.
for Candidates in Primary Elections
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.
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). For the 2018
primary election, that deadline was February 27, 2018.
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.
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.
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.
for Ballot Certification and Overseas Ballots
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
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).
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.
Candidacy in the 2018 Primary Election
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.
Oaks, his Candidacy, and his Criminal Prosecution
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,
html/msa12285.html (last visited July 18, 2018).
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.
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
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
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.
of 2018 Primary Ballots
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.
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.
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
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). 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.
of Motion for TRO or Preliminary Injunction
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. The Circuit Court denied the
motion for a TRO and scheduled a hearing concerning the
request for a preliminary injunction.
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.
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.
Oaks Withdraws his Voter Registration
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."
Court Grants Preliminary Injunction
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
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."
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
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