Appeal of judicial elections case set today

Independent wants to vote for circuit judge in primary

Anne Arundel

April 02, 2004|By Andrea F. Siegel | Andrea F. Siegel,SUN STAFF

Gregory Care is among the 43,434 Anne Arundel County citizens registered to vote but politically unaffiliated.

As an independent, the 22-year-old law student was barred from voting in last month's primary election for Anne Arundel County Circuit Court judge, a race in which fewer than 100 votes made the difference in whether or note candidates got on the general election ballot.

Today, he expects to listen closely as the state's highest court hears arguments in his challenge to a section of the state election law that allows only registered Democrats and Republicans to vote in the primary for circuit judge, an office considered nonpartisan.

"It's your civic duty to vote," said the Linthicum resident, a first-year law student who sued the state Board of Elections, saying he was wrongly disenfranchised. "And then they say, `No, no, we really don't want you to vote.'"

The lawsuit has been on a fast track because of this year's election schedule - primary results are to be certified Tuesday, and certificates of nomination are to go out soon after that - and the Court of Appeals could decide as early as this afternoon.

This is the first time the Court of Appeals has heard the issue. A ruling against the state could transform the way circuit judges are elected in Maryland and let independents, who make up 14 percent of voters statewide, vote in judicial primaries.

The court also could erase the results of the contested Anne Arundel County primary and force a new primary, a daunting prospect for candidates.

"Run another campaign? It would be devastating to have to do that," said judicial candidate Paul F. Harris Jr., one of the three Republican primary winners. "People who worked very hard campaigning, most of our budgets are gone now."

In Maryland's unusual election process, Circuit Court judges are first appointed by the governor and then run against any challengers for 15-year terms. Candidates' names appear on the Democratic and Republican primary ballots; their political affiliations are absent. Primary winners on each side move on to the general election.

Candidates can skip the primary by filing petitions by midsummer.

In the eight-way Anne Arundel primary, five lawyers challenged three sitting judges. The three top vote-getters on each ballot narrowed the field to five candidates with an oddity: Judge Michele D. Jaklitsch, a registered Democrat, won in the Republican primary as well as the Democratic primary.

In February, an independent voter in St. Mary's County sued the state Board of Elections. The American Civil Liberties Union and Care joined the suit, then the St. Mary's resident dropped out. That left Care's complaint regarding Anne Arundel County in a St. Mary's court, where a three-judge panel dismissed the case. Care and the ACLU appealed.

This year, five counties had contested judicial primaries.

"We think this system of having partisan primaries for a nonpartisan office is unconstitutional," said David R. Rocah, a lawyer for the ACLU, which is representing Care.

The state argues that there is nothing unconstitutional about voters removing themselves from the primary process by registering as independents, that Care's case doesn't belong in St. Mary's County and that the matter belongs in the legislature.

"Maryland has a closed primary election system," said Donna Duncan, director of election management for the state Board of Elections. "It is a party nominating process."

In those circumstances, "courts have determined that there is no fundamental right for any voter to participate in the primary of another party," Duncan said.

The state also argues that overturning this year's primary or ordering a new primary would be disruptive to candidates, election boards and schools that serve as polling places. There is no assurance that legal preparations could be made in time for the general election, the attorney general's office wrote in a brief to the Court of Appeals.

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