Election Day payment ban is overturned

Charges against three tied to Ehrlich race thrown out

State law found unconstitutional

Judge says 1979 statute infringed on free speech

April 25, 2003|By Walter F. Roche Jr. and David Nitkin | Walter F. Roche Jr. and David Nitkin,SUN STAFF

A Prince George's Circuit Court judge declared unconstitutional yesterday a state law barring the payment of Election Day poll workers, and threw out criminal charges against three workers tied to Gov. Robert L. Ehrlich Jr.'s 2002 election campaign.

In an eight-page decision issued just six days after a hearing, Judge Richard H. Sothoron Jr. said the 1979 law improperly infringed on guaranteed free-speech rights and had been interpreted to give "carte blanche authority" to restrict Election Day activities.

The judge's order dismisses the criminal charges leveled by a Prince George's County grand jury against Shirley R. Brookin, 56, head of a Washington employment agency; Rashida Hogg, 23, of Silver Spring; and Steven P. Martin, 31, of Capitol Heights. The three could have faced penalties of a year in jail and fines of up to $25,000 each.

The decision, if unchallenged, would end a nearly 25-year-old Maryland ban on "walk-around money," the custom of handing out cash to Election Day workers, a practice critics equated with buying votes.

Noting existing state laws that bar vote-buying and electioneering within 100 yards of polling places, Sothoron said that the law barring walk-around money "is lacking in constitutionally mandated specificity."

"The reality," Sothoron wrote, "is that [the law] is unlimited in its geographic scope, thus providing no guidance whatsoever as to how the conduct is to be controlled on election day in Maryland."

Adopting many of the arguments offered last week by defense lawyers for the three defendants, Sothoron also noted apparent inconsistencies and conflicts in the law. For instance, he said, it appeared to him that the ban applied only to final elections, not primaries.

The law states the payments are barred "on the day of the election, while the polls are open."

Assistant State Prosecutor Thomas M. McDonough said yesterday that no decision had been made on whether to appeal the decision. He said his office would be conferring with state Attorney General J. Joseph Curran Jr. before making a final decision.

A spokesman for Curran said the attorney general would be happy to consult with State Prosecutor Stephen Montanarelli on the issue, but offered no further comment.

McDonough, however, acknowledged that prospects for a successful appeal were slim, especially in light of recent U.S. Supreme Court decisions that have struck down similar laws in other states.

Calling the ruling "no big surprise," McDonough said the cases against the three defendants along with any additional investigation were "dead in the water" barring an appeal.

"Being branded as a criminal for expressing your First Amendment rights is clearly wrong. We are obviously pleased that Judge Sothoron moved quickly to correct this injustice," said Larry Nathans, the lead attorney on the constitutional challenge.

"I'm too happy to talk. I'm just ecstatic," said Wayne Clark, who coordinated the Democrats for Ehrlich efforts in Prince George's County and remained a possible target were the investigation to continue.

"It's a great day for the Ehrlich campaign, but it's an even better day for democracy in the state of Maryland," Clark added.

Democratic State Party spokesman David Paulson, however, called the ruling "unfortunate."

"There was a reason the law was put in place in the first place," Paulson said.

Henry Fawell, a spokesman for the governor, said the judge's decision validated Ehrlich's campaign practices.

"The governor made clear from the outset of the campaign that illegal or inappropriate behavior would not be tolerated, and that all campaign employees must follow the letter and the intent of the law," Fawell said. "This ruling dispels even the appearance of impropriety."

In the hearing last week, attorneys for the three defendants argued that the 1979 statute was an improper infringement on free speech. Citing U.S. Supreme Court rulings on similar laws in other states, they told Sothoron the 1979 law was too vague and was aimed at problems that no longer exist.

Prosecutors, however, said that the law met constitutional requirements and was necessary to maintain public confidence in the election process. They argued that even the appearance of vote-buying must be barred.

The American Civil Liberties Union had joined with the defense in calling for the law to be declared invalid.

Brookins, the first to be indicted in the case, works with a Washington employment agency that was paid by Lt. Gov. Michael S. Steele's campaign committee, while Hogg and Martin were paid by Democrats for Ehrlich.

Brookins was charged with paying workers from a Washington homeless shelter to hand out Election Day literature. Hogg and Martin were charged with recruiting high school and college students for the same task.

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