Validity doubts muddle absentee count Jurisdictions have varying policies ELECTION 1994

November 11, 1994|By William F. Zorzi Jr. | William F. Zorzi Jr.,Sun Staff Writer

The partisan tug of war over vote-counting yesterday was FTC complicated by confusion over whether thousands of absentee ballots are valid.

The law seemed clear to the Maryland attorney general and to the state election laws administrator: If a voter's application for an absentee ballot did not include a signed affidavit, that ballot was not valid and should not be counted.

But policy among the state's 24 local election boards varies. Some counties, such as Montgomery, have made a practice over the years of mailing out ballots even when the request is simply a letter.

Ballot applications, which must be signed, include a statement attesting to certain information -- such as name, address, phone number, birth date and party affiliation -- and an assertion that the applicant is unable to vote in person.

So Gene M. Raynor, administrator of the State Administrative Board of Elections, sent out a memo yesterday to the 24 local boards in which he cited the attorney general's interpretation of the law that says applications for absentee ballots that do not include affidavits should not be counted.

Mr. Raynor also noted that those ballots should be kept separate from the others, because rejecting such ballots as invalid requires a unanimous vote by the local election board, and one or more members might not agree to do so.

"This practice will ensure that the court will have the relevant evidence if suit is brought contesting the counting of these ballots," he wrote.

Jack Schwartz, the Maryland attorney general's counsel for opinions and advice, said, "Essentially, the attorney general's advice is, was and will be that if there was not an affidavit, those ballots should not be counted."

Some counties agreed, and some didn't.

"Montgomery County assumed they were being directed not to count the other ballots and didn't," Mr. Schwartz said, referring to the ballots lacking affidavits. "They understood this was intended as a directive, so they announced they were not going to count the ballots, which was perfectly consistent with our advice."

But then, said Deputy Attorney General Ralph S. Tyler III, "The Baltimore City board said, 'Thank you very much, but we're going to count those ballots.' "

That, Mr. Schwartz said, "is within their legal prerogative," despite being contrary to the attorney general's nonbinding advice.

He added that it was "vitally important" to keep track of ballots without affidavits in case there is a court challenge.

The city board's decision to count ballots without affidavits ultimately led other local boards, such as those in Baltimore and Montgomery counties, to include such ballots in their absentee ballot totals.

"They are not lawful absentee ballots, but ultimately, presumably, a court will make that decision," Mr. Schwartz said.

Besides people who are away from home on Election Day and military personnel, the largest group of absentee voters, those eligible to vote by absentee ballot include election board employees or judges who are assigned to polling places other than their home precincts; handicapped people or those over age 65 who vote at polling places not accessible to them; and full-time college students whose schools are outside their home precincts.

Also eligible are voters with physical disabilities; those unable to go to the polls because of the death of or serious injury to family members; and those unable to get out to vote because of illness or accident.

Among the applications without affidavits that were initially discounted in Montgomery County were handwritten letters from the elderly and infirm.

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