Challenge in governor's race uncharted territory Lawyers research candidate options ELECTION 1994

November 12, 1994|By Sandy Banisky | Sandy Banisky,Sun Staff Writer

Maryland's long, strange gubernatorial contest will enter largely unexplored legal territory if it ends up in the courts, lawyers from both parties said yesterday.

"Everybody's flying by the seat of their whatevers," said George Beall, the attorney whom Republican candidate Ellen R. Sauerbrey has asked to head a committee overseeing the vote counts. "This is unprecedented in Maryland."

Democratic and Republican lawyers have been hovering over the counts in local elections boards, careful to keep track of problems. And they've been poring over the state constitution and the Annotated Code of Maryland for guidance on how to proceed should a court fight arise.

But attorneys for Mrs. Sauerbrey, who continued to run behind Democratic candidate Parris N. Glendening last night, said any decision about going to court would not be made until at least next week.

"That decision needs to be made way down the road," said Christopher R. West, counsel to the Maryland State Republican Party.

Jack Schwartz, chief counsel for opinions, advice and legislation in the Maryland attorney general's office, said state law offers at least three methods for challenging an election in court.

A candidate or an absentee voter can challenge the validity of a specific group of absentee ballots.

A candidate also may challenge the official canvass of votes. That process, which is required by law and will be completed next week, has every election board compare the vote totals announced on election night with the official numbers locked into voting machines.

The canvass is meant to catch mathematical problems and figures taken down incorrectly.

But the third method allows the broadest challenge. A candidate, or any registered voter, could challenge the entire election, claiming anything from improper activity by elections officials to outright fraud.

In court, the plaintiff would have to prove that the irregularity occurred and that the irregularity could change the outcome, Mr. Schwartz said. So a court presumably would not entertain a challenge of 500 votes if one candidate was leading by 3,000.

The court's powers are broad, Mr. Schwartz said. It could make minor adjustments, order a recount, or go so far as to throw out the results and order a new election.

Has a gubernatorial election ever been thrown out?

"Never in my lifetime," said Gene M. Raynor, head of the state elections board.

"That is the last resort," said Mr. Schwartz.

The state constitution complicates the issue, Mr. Schwartz said, with a provision that applies only to the election of the chief executive:

". . . All questions in relation to the eligibility of Governor and Lieutenant Governor, and to the Returns of said election, and to the number and legality of votes therein given, shall be determined by the House of Delegates. . . ."

What does that mean?

"That one is unexplored territory," Mr. Schwartz said.

"It is not clear the extent to which the judicial system is being told by the framers of the constitution these are not issues for the courts, these are issues for the House of Delegates," he said. "This provision dates back, I believe, to 1837," when the state constitution was amended to allow the popular election of the governor. "To the best of my knowledge, this issue has not been explored."

But Mr. West, representing the Republicans, said that the courts -- not the Democrat-dominated legislature -- would be the correct forum for deciding any election challenge.

"If we get way down to that, and the other side argues that the House of Delegates should take control of that, it would be very political," Mr. West said. "It would terribly embarrassing for the state."

As some lawyers scan the law books, others are watching every move in local elections offices -- and checking out complaints in case a legal challenge is mounted.

Mr. Beall, a Republican former U.S. attorney for Maryland, said the Sauerbrey campaign has investigators looking into reports of voter fraud and irregularities. "Everybody's going to do what they can to protect the process," he said. "An election is an expensive, important exercise in democracy."

With the vote totals remaining close four days after the election, every vote takes on added importance.

"The closer the count is to a dead heat, the easier it is to make a successful argument about voting irregularities," Mr. West said.

Bruce L. Marcus, who represents the Glendening campaign, cautioned that any challenges should be substantive. "Every election has minor problems," he said. "If these are problems that will not affect the outcome of the election, then they don't have any place in court."

And he said he was confident that elections officials -- and not a judge -- would make the final announcement of the winner.

"I don't presume we'll be in court, because when the Sauerbrey people realize that Parris Glendening got more votes than they did, they will realize that's the will of the people."

But what if the election is bogged down in court for weeks? For months? Is there a provision to hold over Gov. William Donald Schaefer?

Yes, Mr. Schwartz said. "But that's just not going to happen."

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