Vote plan rejected by court

Early ballot violates Md. Constitution, judge says

August 12, 2006|By ANDREW A. GREEN | ANDREW A. GREEN,SUN REPORTER

An Anne Arundel County circuit judge ruled yesterday that the General Assembly's plan to allow voters to cast ballots in the week before Election Day is unconstitutional, a victory for the governor, who has made opposition to early voting a central issue in the fall campaign.

Judge Ronald A. Silkworth ruled that the General Assembly's plan violated the clear language of the Maryland Constitution, which says that citizens may vote in their local election districts on a specific day, the Tuesday after the first Monday in November.

"Maryland can adopt early voting if it wants by a constitutional amendment," said M. Albert Figinski, an attorney for the plaintiffs in the case. "What it can't do, in my view and apparently the judge's view, is to do it by legislation."

Attorney General J. Joseph Curran Jr. said in a statement that he has already filed an appeal of the decision, and both sides say the issue will be settled by the Court of Appeals, Maryland's highest court. Curran said he expects briefs to be filed within 10 days and oral arguments by the end of this month.

Still, the decision throws a wrench into efforts by state and local election boards to prepare for balloting that is now just weeks away for the party primaries.

Until yesterday's decision, select polling places were scheduled to open for early voting on Sept. 5 in advance of the Sept. 12 primary - a timetable that is now in doubt.

The ruling provides ammunition for Gov. Robert L. Ehrlich Jr., a Republican who has made attacks on "overreaching" by the Democratic-controlled General Assembly a central theme in his re-election bid.

Ehrlich has fought hard against early voting, which is in place in more than 30 other states, saying that it is an invitation to fraud. He backed an ultimately unsuccessful petition drive to throw out the statute and supported the plaintiffs in this case.

"The sanctity of Maryland elections must not be eroded for the sake of one party's political advantage," Ehrlich said in a statement yesterday.

Ehrlich vetoed a 2005 bill establishing early voting and a 2006 bill that provided guidelines for its implementation. The Assembly overrode him both times.

Neither he nor his administration was directly involved in this suit, but the plaintiffs' attorneys have close ties to him. Figinski is married to Ehrlich's budget secretary, and attorney Christopher R. West is former legal counsel to the Maryland Republican Party.

"Marylanders should see the lawsuit that resulted in today's ruling for exactly what it is: an effort spearheaded by supporters of Governor Ehrlich and Lieutenant Governor Steele to make it difficult for voters to exercise the franchise in November," said U.S. Rep. Steny H. Hoyer, the House Democratic whip from Southern Maryland, in a statement.

Hoyer - part of a chorus of Democrats who decried the ruling, including U.S. Senate candidate Kweisi Mfume - said he hoped the decision would be overturned on appeal "so that elections in this state are as convenient as possible for voters, not candidates."

Democrats say they enacted the law to give all citizens - particularly those who work long hours or commute long distances - the chance to cast ballots at a convenient time and place.

"It's definitely a setback as we try to increase voter turnout and voter participation in the elections, especially for constituencies that have had historically low turnout, like African-Americans," said Baltimore City Councilman Keiffer J. Mitchell Jr., a vice chairman of the Maryland Democratic Party.

Although Ehrlich called the General Assembly's approach to early voting "flawed, irresponsible and an overreach of the Maryland Constitution," he said he doesn't object to the concept and would be willing to work with the General Assembly on a "sensible and nonpartisan approach" - after the election.

Curran's office, which defended the law, argued that the language in the constitution should be interpreted broadly. Its definition of "election" should mean the day when voting stops, not the only day when it takes place, argued the attorney general's office, representing the state Board of Elections.

But Silkworth wrote that the constitution's language should be interpreted in its literal meaning, and thus early voting and all its enacting laws must be thrown out.

Del. Kumar P. Barve, the House Democratic leader from Montgomery County, said that interpretation makes no sense.

"He doesn't seem to have outlawed absentee ballots, which, when you come down to it, is the same thing," Barve said. "I think he's just flatly wrong, and he's going to be overturned."

Sen. Lisa A. Gladden, a Baltimore Democrat and a lead sponsor of early voting laws, said she hopes the Court of Appeals will recognize the necessity of flexibility in interpreting the state's 19th-century constitution.

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