Lawsuit seeks to nullify primary

Independent voter claims he was unfairly kept from voting for Arundel judges

Election 2004

March 09, 2004|By Johnathon E. Briggs | Johnathon E. Briggs,SUN STAFF

A three-judge panel is considering a request to nullify last week's primary election results for Anne Arundel County Circuit Court after an independent voter alleged that it was unconstitutional to exclude him from casting a ballot.

If the challenge is successful, the case could transform procedures statewide for electing judges.

The lawsuit, filed by Gregory Care of Linthicum with assistance from the American Civil Liberties Union, argues that because candidates for circuit judge are listed on both Democratic and Republican ballots, the contests are nonpartisan. And therefore, the suit says, judicial elections should be open to all registered voters regardless of party affiliation.

Maryland's primaries are closed, meaning that only Democrats may vote in the Democratic primary and only Republicans in the Republican primary. Independents, those not registered with either major party, are prohibited by law from voting in primaries, although they account for 14 percent of the Maryland electorate.

"Judicial elections are not partisan elections," said ACLU staff attorney David R. Rocah, who argues that the current system disenfranchises independent voters. "What you have in Maryland is a bizarre system of a partisan primary for a nonpartisan election. We think that the system is not only bizarre, but is unconstitutional."

By denying independents the right to vote in judicial primaries, the state violates their rights under the 14th Amendment and the state Declaration of Rights, the suit argues.

As the defendant in the case, the state Board of Elections counters in a motion to dismiss that there is no constitutional right to vote in a party's primary.

Although judicial candidates need not be members of the Democratic or Republican party to run in either party's primary and routinely "cross-file" to appear on both ballots - a practice that dates to at least 1941 - attorneys for the state disagree with the notion that judicial elections are nonpartisan.

"It is what it is: a partially nonpartisan process," said Assistant Attorney General Judith Armold. "It is the constitutional prerogative of the state to decide its judicial selection process. The [three-judge panel] is going to tell us who is right."

Attorneys for both sides said a decision in the matter is expected "any day now."

If the judges grant the plaintiffs' request, the results of the hotly contested primary for Anne Arundel circuit judge would be voided and a new election would be scheduled.

Of the eight candidates, the top three chosen by Democratic voters were incumbents David S. Bruce, Michele D. Jaklitsch and Rodney C. Warren, while Republicans voters supported challengers Paul Goetzke and Paul F. Harris in addition to Jaklitsch. The top three contenders from each party will face off for three judgeships in November.

On the Republican ballot, Jaklitsch finished in the top three ahead of challenger Scott A. Conwell by 89 votes, according to unofficial results. ACLU attorneys argue that if independent voters had been allowed to participate, they could have represented the margin of victory for a candidate.

Care's complaint amends a similar suit in St. Mary's County Circuit Court brought last month by attorney Michael B. Suessmann, an independent voter in Leonardtown. The ACLU withdrew that request Friday after concluding that given lopsided results in the primary there, the participation of independent voters would not have changed the outcome.

The original complaint requested a three-judge panel for the case; circuit judges from Calvert, Prince George's and Charles counties are hearing it.

Though rare, state officials point out that judicial candidates can gain a place on the general election ballot through petition if they choose not to run in the primary. That's what Bel Air lawyer Stuart Jay Robinson did in 2002, collecting 1,776 signatures to land on the general election ballot for circuit judge in Harford County.

Robinson said last week that independent voters should be able to vote in primary elections for judges. "It opens up the process," he said.

Sun staff writer Andrea F. Siegel contributed to this article.

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