And just what constitutes a candidacy, Mr. Kelly? ACLU questions judgment of a state official.

January 31, 1992|By James Bock

ANNAPOLIS -- A presidential candidacy is to Winfield M. Kelly Jr. what someone once said about pornography: He knows it when he sees it.

Mr. Kelly, Maryland's secretary of state, was hauled into court this week by three men he'd judged as presidential candidates unworthy of a spot on Maryland's primary ballot: Eugene McCarthy, a former senator from Minnesota; Larry Agran, a former mayor of Irvine, Calif.; and A. Robert Kaufman, a Baltimore activist.

A lawyer for the three candidates told an Anne Arundel County Circuit Court judge yesterday that Mr. Kelly's judgment of who should be on the ballot was so arbitrary that it should be set aside.

Maryland law gives the secretary of state "sole discretion" to put presidential candidates on the primary ballot if they are "generally advocated or recognized" in the news media.

But John H. Morris Jr., representing the three candidates on behalf of the American Civil Liberties Union, told Judge Raymond G. Thieme Jr. that Mr. Kelly "invites second-guessing because he provides no basis to determine whether what he's doing is fair and consistent with the law."

"The only record is, 'This is what I've decided,' " Mr. Morris said.

In 1988, the lawyer noted, Mr. Kelly put auto executive Lee Iacocca and diplomat Jeane J. Kirkpatrick on the Republican ballot, although a computer data-base search showed that neither as a candidate got as much press coverage as Mr. McCarthy or Mr. Agran has gotten this time.

Mr. Morris also contended that Mr. Kaufman, who declared himself an anti-David Duke candidate last month, had received enough attention in the news media to merit a favorite-son spot on the ballot.

However, Evelyn O. Cannon, the assistant attorney general defending Mr. Kelly, said the three candidacies were so obscure that they didn't rate a place on the ballot unless they won it through petition. None of the three opted to collect signatures to get on the ballot.

She also contended that overturning Mr. Kelly's decision now would throw the March 3 primary election into chaos because local election boards are already having absentee ballots printed.

Ms. Cannon said the purpose of the Maryland law was to make sure that recognized candidates couldn't dodge the state's primary, not to ensure minor candidates a place on the ballot.

Judge Thieme did not rule on the suit. However, he refused last jTC week to order election boards to print ballots with the three candidates' names on them, saying he found "substantial evidence" for Mr. Kelly's decision not to include them.

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