Non-party Voter Sues To Throw Out Judge's Election

October 07, 1990|By Deidre Nerreau McCabe | Deidre Nerreau McCabe,Staff writer

A Dayton woman has filed a lawsuit asking the state to throw out Judge James B. Dudley's recent election to county Circuit Court because only Democrats and Republicans were allowed to vote in the non-partisan primary race.

That restriction in the Sept. 11 election discriminated against many voters, said Erin Gilland-Roby, who is affiliated with no political party.

She filed the suit Monday in Circuit Court.

"The election of judges is actually non-partisan, analogous to that of school board members," Gilland-Roby says in her three-page suit. "All voters should have access to vote in their election."

Gilland-Roby contends if the judges' race were on all ballots, "the outcome could have been significantly altered." She wants primary results declared "null and void" and requests that Dudley and his challenger, JoAnn Branche, face a rematch in the Nov. 6 general election.

Gilland-Roby said she went to the polls on primary day because of the judicial race and had intended to vote for Branche.

Dudley, who was appointed to a seat on the Circuit Court by the governor in 1988, faced his first election challenge this year. He will now serve a 15-year term before facing re-election. Dudley was on vacation and unavailable for comment about the lawsuit.

Branche, a private practice attorney in Columbia, could not be reached for comment. However her campaign manager, Natalie W. Woodson, said Branche believes Gilland-Roby has "a legitimate concern."

"It should have been handled like the school board," Woodson said. "They should not have two different policies -- one for school board and one for judges."

The school board race appears on all primary ballots, not just those of registered Democrats and Republicans.

In Maryland, judges who are up for re-election must cross-file their candidacy as Republicans and Democrats, even though they cannot declare a party affiliation in a general election.

Their names appear on Republican and Democratic ballots during the primary, but not on the ballots of voters who decline to affiliate or who join one of the 14 other political parties that list registered voters in Howard County.

If a judge wins both primaries, he is for all practical purposes the winner, because only the primary winner's name appears on the ballot on Nov. 6.

In this September's primary, Dudley won over Branche by comfortable margins in both primaries, thus deciding the election.

Barbara W. Feaga, chief clerk of the county's Board of Elections, said during this year's primary, only 313 independents turned out to vote.

Clearly, those who voted were not numerous enough to have changed the outcome of the primary, since Dudley won by more than 4,000 votes.

But Feaga said there are almost 12,000 voters in the county who belong to alternate parties or have chosen not to affiliate. In general elections, where they can vote in all races, their turnout is typically as strong as Democrats and Republicans, she said.

In the 1988 general election, for example, 80 percent of the registered Democrats, 78 percent of the registered Republicans and 76 percent of the "declines" voted.

Feaga said many of the "declines" don't bother to vote in primaries because they realize their choices are slim.

"If they come in here to register, we try to explain that to them," Feaga said. But many move here from other states where voting laws are different, she said.

In some states, such voters are allowed to select which primary -- Democratic or Republican -- they will vote in. Some people come here thinking the system works the same way, never realizing they will be blocked from voting in key races, she said.

Gilland-Roby said she thinks more of those voters would turn out for primary elections if they had more choices.

Marvin L. Meyn, deputy administrator of the State Administrative Board of Election Laws, said his office turned Gilland-Roby's suit over to the state Attorney General's office for consideration.

Elizabeth L. Nilson, the assistant attorney general assigned to the case, said she first received it Thursday and had no comment.

Meyn said the judge's election was in compliance with state election laws, so he doubts the results will be thrown out. Working through the state legislature is probably the best way to to change the process, he said.

Both Feaga and Meyn said that although the electoral process for judges has been questioned frequently, this is the first legal challenge they know of.

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