Republican Ellen R. Sauerbrey told Attorney General J. Joseph Curran Jr. yesterday that she intends to file suit today in state court challenging the Nov. 8 general election and asked that he exclude himself from the state's defense.
At a private meeting in Mr. Curran's office, set up at her request, Mrs. Sauerbrey told the attorney general that she was contesting the governor's race because of certain irregularities in the election and "very questionable practices" by the state election board, she said.
RF In an interview, Mrs. Sauerbrey said her attorneys would file suit
contesting the election in Anne Arundel Circuit Court by midafternoon today, the legal deadline for such challenges.
She would not be specific, however, as to the allegations to be included in her complaint, what action she would ask of the court or the reasons for filing in Annapolis.
Mrs. Sauerbrey, who lost the governor's race to Democrat Parris N. Glendening by just 5,993 votes, asked Mr. Curran not to represent the Baltimore and state election boards because of what she called a "significant perception problem."
"It is hard for me to understand how the attorney general's office can represent the election board, which means they are representing and defending this election . . . the board's findings, their totals, their count," she said.
She stopped just short of charging that Mr. Curran has a conflict of interest, noting that he is a member of the five-person Board of State Canvassers -- made up of the attorney general, secretary of state, comptroller, treasurer and clerk of the Court of Appeals.
That board certified the statewide general election results Dec. 7, declaring Mr. Glendening the governor-elect.
Mr. Curran, a Democrat who was elected to his third term in the November election, said that at this point he would not honor her request to step aside, citing his statutory and constitutional responsibilities to represent certain agencies as the state's top lawyer.
He also said Mrs. Sauerbrey and her attorney, John M. Carbone, were not specific in their allegations or concerns about his office defending the Baltimore Board of Supervisors of Elections and the State Administrative Board of Election Laws -- two agencies expected to be named as defendants.
"They did not disclose anything that would indicate to me there was any reason why the attorney general should not defend the suit," Mr. Curran said. "They said, 'We trust you and we feel you're fair and feel you're honest,' but they said there were 'unnamed persons' who support their efforts who would feel uncomfortable.
"I told them when the suit comes in, we'll look at it," Mr. Curran said. "It's awfully difficult to ask the attorney general not to become involved in something, sight unseen, particularly when we don't know what the allegations are."
Mr. Curran also said Mrs. Sauerbrey and Mr. Carbone indicated they would also file suit in federal court, but said they were vague on when that might occur or why a federal court would have jurisdiction in a state election matter.
Mrs. Sauerbrey did not rule out the possibility of a federal lawsuit, which her attorneys have suggested privately might be filed and which attorneys for Mr. Glendening anticipate.
"I think it's premature to look that far out," she said yesterday. "We'll see how we do in state court, but I think it's fair to say we'll be seeking all remedies that are available."
Whatever the outcome in Circuit Court, the decision is almost certain to be appealed.
She referred other questions about the challenge to Mr. Carbone, a New Jersey lawyer and elections specialist who is heading a small army of volunteers and investigators searching for Election Day irregularities. He could not be reached for comment yesterday.
On Friday, Mrs. Sauerbrey asserted that she has enough evidence of voting fraud -- including potentially hundreds of ballots cast in the names of dead voters in Baltimore -- to throw out Mr. Glendening's victory and either award the governor's seat to her or order a new election. Again, she declined to release specific allegations of fraud. State and local elections officials have acknowledged there could be some technical irregularities -- such as voters who, after moving, cast ballots in their old polling places -- but have vehemently denied any fraud or wrongdoing.
The legal battle that looms will be fought in largely uncharted territory, as this is the first gubernatorial election challenge in Maryland's history to be considered by the courts.
(A challenge to the 1875 governor's race, again by the Republican loser, was decided by the Democratic-majority House of Delegates, under a provision of the Maryland Constitution.)
Among the legal issues to be considered would be the separation of powers -- in this case, between the judicial and legislative branches.
The state Constitution is clear in giving the House of Delegates responsibility for deciding "all questions" in the governor's race, including "the number and legality of votes therein given." Yet, state law -- which is approved by the legislature -- provides for relief from the courts for election challenges in general.
If a suit is filed, one of the first hurdles Mrs. Sauerbrey will have to clear is that of persuading a judge to prevent the Democratic-controlled House from declaring Mr. Glendening the winner Jan. 11, when the General Assembly convenes.