One for the books

January 05, 1995|By Frank A. DeFilippo

THE CASE OF Sauerbrey vs. Glendening raises the slippery legal question: Huh?

For when the pin-striped lawyers step before the bench tomorrow, they'll be plodding through a legal thicket that wasn't taught in law school.

The only Maryland legal precedent for the case dates to 1875, the only other legally contested election for governor in Maryland's history books. Even the presiding judge and resident renaissance man, Anne Arundel Circuit Court Judge Raymond G. Thieme Jr., may not be all that sure where the case is heading.

And, for the first time, there's a suggestion by the Sauerbrey camp that a pattern of fraud was so prevalent in the three jurisdictions Mr. Glendening carried -- Baltimore, Montgomery and Prince George's counties -- that the FBI might be enlisted to determine who masterminded the alleged Election Day scheme.

Attorneys for Republican Ellen Sauerbrey will contend there was massive Election Day fraud committed to deny their client the governorship, but apparently not by Democrat Parris Glendening's campaign or election officials. Mr. Glendening's attorneys will argue that technical violations do not necessarily constitute fraud. And they've already asked for dismissal of the case on the grounds that it disenfranchises voters.

First is the question of jurisdiction. While state law says the courts have jurisdiction over elections, the state constitution states that the General Assembly is responsible for overseeing the process of mediating contested elections.

If the case proceeds, nobody's quite certain where it'll end up. So the question is whether the courts could do what Mrs. Sauerbrey's lawsuit seeks: declare her governor or order a new election.

Mrs. Sauerbrey notes that at least 71 people voted from addresses that are abandoned buildings. Moreover, the Sauerbrey campaign claims that new computer runs have revealed the names of at least 1,000 additional people who voted in Montgomery County but who no longer even live in Maryland. So the legal question that must be answered is whether failure to notify the election board of a change of address is outright fraud, especially for persons who have moved out of state but nonetheless were recorded as having voted in Maryland.

Mrs. Sauerbrey contends that 4,700 votes were cast in the names of people who were in prison on Election Day. Under Maryland law, persons convicted of felonies can't vote until they're out of prison and their probation is completed.

However, people convicted of misdemeanors can vote. So the legal question is how many cell-block voters are in prison for misdemeanors. More to the point, where did they get the absentee ballots? Were they sent to the prisons?

Mrs. Sauerbrey contends that absentee ballots were mishandled in Montgomery County and wants 2,000 of them invalidated. Different jurisdictions apparently have different methods for processing absentee ballots. There is no uniform system across the state. Do these inconsistencies in the process actually raise a serious legal issue?

Mrs. Sauerbrey contends that some voters voted twice -- once by absentee ballot and again at the polls. Why don't the election board books reflect that a person actually received an absentee ballot and, what's more, is there a breakdown in the notification process?

A decision in the contest for governor could have legal implications in other races as well. If votes are thrown out in the race for governor, for example, would the same votes affect close contests for the House of Delegates?

In Baltimore's 40th District, Clarence Mitchell IV ran third and won a House seat by 100 votes. If enough votes are discarded in that district, could the person who ran fourth challenge the returns of the three winning delegates?

Finally, Mrs. Sauerbrey claims that 37 votes were recorded for people who are dead. In order to prove fraud, signatures will pTC have to be checked to determine whether they are markedly different or very similar -- essentially by the same hand.

The underlying strategy of the Sauerbrey forces is as simple as it is complex. They believe it's important to determine whether the person who cast a vote is actually the person who's registered. Translation: Did somebody in West Baltimore pull a lever in the name of another person who's moved to Delaware?

Moreover, they hope to present such a clear pattern of evidence that it will become apparent that there was an elaborate scheme of fraud and they hope that it will become the responsibility of a law enforcement agency -- preferably the FBI -- to prove it.

To help underwrite her seemingly quixotic mission, Mrs. Sauerbrey has already received a $10,000 contribution from House Speaker Newt Gingrich's controversial political action committee, GOPAC.

And to further add legitimacy to her claim to Maryland's governorship, the Republican party's Big Deals are coming to town to toss out a lifeline.

Senate Majority Leader Robert Dole will be the guest of honor at a Sauerbrey fund-raiser on Jan. 13 at the BWI Marriott. Tickets are $100 for the hoi polloi and $1,000 a pop for Big Cheeses who want to rub shoulders with Mr. Dole, one of the GOP's 1996 presidential contenders.

To be sure, this is one of those WOW! moments in Maryland politics.

Frank A. DeFilippo writes on Maryland politics from Owings Mills.

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