MD: Early vote plan is rejected by court -- Judge says it violates state constitution

By Andrew A. Green
Sun Reporter

http://tinyurl.com/ncfrm

Originally published August 11, 2006, 9:42 PM EDT

An Anne Arundel County circuit judge ruled Friday that the General Assembly's plan to allow voters to cast ballots in the week before Election Day is unconstitutional, a victory for the governor who has made opposition to early voting a central issue in the fall campaign.

Circuit Judge Robert A. Silkworth ruled that the General Assembly's plan violated the clear language of the Maryland Constitution, which says citizens may vote in their local election districts on a specific day, the Tuesday after the first Monday in November.

"Maryland can adopt early voting if it wants by a constitutional amendment," said M. Albert Figinski, an attorney for the plaintiffs in the case. "What it can't do, in my view and apparently the judge's view, is to do it by legislation."

Attorney General J. Joseph Curran Jr. said in a statement that he has already filed an appeal of the decision, and both sides say the issue will be settled by the Court of Appeals, Maryland's highest court. Curran said he expects briefs to be filed within 10 days and oral arguments by the end of this month.

Still, the decision throws a monkey wrench into efforts by state and local election boards to prepare for balloting that is now just weeks away for the party primaries. Until Friday's decision, select polling places were scheduled to open for early voting on Sept. 5 in advance of the Sept. 12 primary -- a timetable that is now in doubt.

The ruling provides ammunition for Gov. Robert L. Ehrlich Jr., a Republican who has made attacks on "overreaching" by the Democratic-controlled General Assembly a central theme in his re-election bid.

Ehrlich has fought hard against early voting, which is in place in more than 30 other states, saying it is an invitation to fraud. He backed an ultimately unsuccessful petition drive to throw out the statute and supported the plaintiffs in this case.

"The sanctity of Maryland elections must not be eroded for the sake of one party's political advantage," Ehrlich said in a statement Friday.

Ehrlich vetoed a 2005 bill establishing early voting and a 2006 bill that provided guidelines for its implementation. The Assembly overrode him both times.

Neither he nor his administration was directly involved in this suit, but the plaintiffs' attorneys have close ties to him. Figinski is married to Ehrlich's budget secretary, and attorney Christopher R. West is former legal counsel to the Maryland Republican Party.

"Marylanders should see the lawsuit that resulted in today's ruling for exactly what it is: an effort spearheaded by supporters of Governor Ehrlich and Lieutenant Governor Steele to make it difficult for voters to exercise the franchise in November," said U.S. Rep. Steny H. Hoyer, the House Democratic whip from Southern Maryland, in a statement.

Hoyer -- part of a chorus of Democrats who decried the ruling, including U.S. Senate candidate Kweisi Mfume -- said he hoped the decision would be overturned on appeal "so that elections in this state are as convenient as possible for voters, not candidates."

Democrats say they enacted the law to give all citizens -- particularly those who work long hours or commute long distances -- the chance to cast ballots at a convenient time and place.

"It's definitely a setback as we try to increase voter turnout and voter participation in the elections, especially for constituencies that have had historically low turnout, like African-Americans," said Baltimore City Councilman Keiffer J. Mitchell Jr., a vice chairman of the Maryland Democratic Party.

Although Ehrlich called the General Assembly's approach to early voting "flawed, irresponsible and an overreach of the Maryland Constitution," he said he doesn't object to the concept and would be willing to work with the General Assembly on a "sensible and nonpartisan approach" -- after the election.

Curran's office, which defended the law, argued that the language in the constitution should be interpreted broadly. It's definition of "election" should mean the day when voting stops, not the only day when it takes place, argued the attorney general's office, representing the state Board of Elections.

But Silkworth wrote that the constitution's language should be interpreted in its literal meaning and, thus, early voting and all its enacting laws must be thrown out.

Del. Kumar P. Barve, the House Democratic leader from Montgomery County, said that interpretation makes no sense.

"He doesn't seem to have outlawed absentee ballots, which, when you come down to it, is the same thing," Barve said. "I think he's just flatly wrong, and he's going to be overturned."

Sen. Lisa A. Gladden, a Baltimore Democrat and a lead sponsor of early voting laws, said she hopes the Court of Appeals will recognize the necessity of flexibility in interpreting the state's 19th-century constitution.

"A constitution is a living, breathing document," she said. "If you always literally interpret the constitution you get strange results, like 'all men are created equal,' so what do you do with the women?"

According to the Attorney General's brief in the case, nine other states with constitutional language similar to Maryland's allow early voting.

Del. Samuel I. Rosenberg, a Baltimore Democrat and another lead sponsor of early voting, said the plaintiffs' arguments were never raised during legislative debate and that precedent from other states is persuasive.

"I certainly hope that a single activist judge, if I may borrow the expression, shouldn't thwart the will of the legislature," Rosenberg said.

Silkworth was appointed to the bench by former Gov. Parris N. Glendening, a Democrat. In 2004, he stopped an attempt by Ehrlich appointees to the Board of Elections to fire state Elections Administrator Linda H. Lamone.

Lamone said an agreement between the parties in the case would allow her office to continue preparing for early balloting until the case is decided on appeal.

Ehrlich has said the system would allow people to cast multiple ballots and has suggested that it is an attempt by Democrats to steal the election.

He has not provided examples of multiple voting in other states with early balloting, and state elections officials -- including the Republican head of the Board of Elections -- say new technology and procedures would prevent it.

Democrats allege that the real reason Ehrlich and the Republicans want to stop early voting is that it could drive up turnout and hurt their chances in a state where Democrats outnumber Republicans nearly 2-1. However, other states where early voting has been allowed for years offer little evidence that the practice increases turnout.

Alex Zeese, a spokesman for the voting security watchdog group TrueVote Maryland, said that although he sympathizes with the desire to give working voters more flexibility, a delay could be a blessing.

"Our concern is always making sure the election is safe and secure first, and I'd heard way too much about the technology we wanted to use not being ready," Zeese said. "When you move too quickly with the technology, you never know what is going to happen."

andy.green@baltsun.com

Sun reporter Doug Donovan contributed to this article.