Green Party v. Board of Elections

Decision Date29 July 2003
Docket NumberNo. 78,78
Citation377 Md. 127,832 A.2d 214
CourtMaryland Court of Appeals

Frank M. Dunbaugh, Annapolis (Mark Miller, admitted pro hac vice, Greenbelt), all on brief, for appellants.

Michael D. Berman, Deputy Chief of Litigation (J. Joseph Curran, Jr., Atty. Gen. and Judith A. Armold, Asst. Atty. Gen., on brief), Baltimore, for appellees.

James C. Praley (Lessans, Praley & McCormick, P.A., on brief), Glen Burnie, for appellees.


We issued a writ of certiorari in this case to determine the validity of several provisions of the Maryland Election Code which prescribe the manner in which a minor political party nominates its candidates for offices other than United States President and Vice President.


As this case comes to us on appeal from a grant of the respondents'1 motion for summary judgment, we shall set forth the facts in the light most favorable to the petitioners.2Lovelace v. Anderson, 366 Md. 690, 695, 785 A.2d 726, 728-729 (2001), and cases there cited. Nevertheless, there do not appear to be any disputed factual issues which are material to our decision in this case.

On August 16, 2000, the Green Party qualified as a statutorily-recognized "political party"3 in Maryland, after satisfying all of the requirements of Article 33, § 4-102.4 These requirements included, inter alia, submitting a petition supporting the recognition of the Green Party bearing at least 10,000 signatures. See § 4-102(b)(2)(i). Those who signed this party-forming petition were neither required to be affiliated as Green Party members nor obligated to support future Green Party candidates.

The Green Party then sought to nominate David M. Gross as its candidate for the November 2000 election for the United States House of Representatives in Maryland's first congressional district. Although the Election Code sets forth three procedures for a political party to nominate its candidates,5 the Green Party was limited to nomination via a second petition signed by at least 1% of the total number of registered voters in that congressional district. This limitation was essentially the product of two factors: first, the Green Party was not a "principal political party," and, second, less than 1% of Maryland's voters were registered as members of the Green Party.

On August 7, 2000, the Dave Gross for Congress campaign submitted a timely nominating petition containing 4,214 signatures of voters purporting to be registered in Maryland's first congressional district. On August 23, 2000, however, the Board notified the Green Party that Mr. Gross's name would not be included on the general election ballot because the nominating petition requirements had not been satisfied. The Board claimed that it could verify only 3,081 valid signatures, fewer than the 3,411 required by Maryland's 1% nomination petition requirement.6 A number of reasons were set forth by the Board for subtracting more than 1,100 signatures. Among these reasons, the Board claimed that many signatures were by "inactive" voters.

On September 5, 2000, the Green Party filed a complaint in the Circuit Court for Anne Arundel County alleging that several of Maryland's ballot access restrictions are unconstitutional. The Party sought declaratory and injunctive relief, relying, inter alia, on the Civil Rights Act of 1871, 42 U.S.C. § 1983. Specifically, the Green Party asserted that the Board's actions deprived the Green Party, the plaintiff voters, and the plaintiff candidate, of their rights under the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution and under various provisions of the Maryland Constitution and the Maryland Declaration of Rights. The Party also argued that such requirements violate international law and treaties of the United States. In addition, the Green Party sought a temporary restraining order and a preliminary injunction against enforcement of Maryland's ballot access restrictions on third-party candidates and an order requiring the Board to place Mr. Gross's name on the ballot for the November 2000 general election.

After a hearing on September 8, 2000, the Circuit Court denied the Green Party's motions for interim relief. The election then proceeded, with this case being placed on the regular docket of the Circuit Court. After filing its answer, the Board then filed a Motion to Dismiss or, in the alternative, for Summary Judgment. The Board argued that the case should be dismissed as moot because the election had already been held. In the alternative, the Board claimed that summary judgment in its favor was appropriate because there were no genuine issues of material fact. The Board argued that, as a matter of law, it was entitled to a declaration that (a) the Board's petition-validation procedures and the Board's actions in refusing to place Mr. Gross' name on the ballot were fully consistent with Maryland's election laws and (b) that the Board's actions were not in violation of any rights granted to the Green Party under Maryland or federal law.

On February 28, 2001, the Circuit Court for Anne Arundel County held that the Green Party's request for declaratory relief was not moot since the issues were "`capable of repetition, yet evading review,'" quoting Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714, 727-728 n. 8 (1974). Accordingly, the Circuit Court denied the motion to dismiss. Nevertheless, the Circuit Court entered summary judgment in favor of the Board, declaring that the Green Party "has not shown that Maryland's election laws are unconstitutional pursuant to the United States Constitution, Maryland Constitution, or various international treaties...." The Circuit Court stated that, "[s]ince requirements more stringent than Maryland's requirement have been upheld, as a matter of law, Maryland's 1% requirement is constitutional."

The Green Party appealed to the Court of Special Appeals, but this Court issued a writ of certiorari prior to consideration of the case by the intermediate appellate court. Green Party v. Board of Elections, 365 Md. 472, 781 A.2d 778 (2001). We shall reverse the Circuit Court's judgment and remand the case to the Circuit Court for the entry of a declaratory judgment in accordance with this opinion.


Numerous issues under the federal and state constitutions have been debated by the parties both in the Circuit Court and in this Court. We need not and shall not decide any of the issues raised under the federal constitution or federal law. Our holdings in this case, that certain provisions in the Maryland Election Code and practices by the Board are invalid, shall be based entirely upon Article I of the Maryland Constitution and Articles 7 and 24 of the Maryland Declaration of Rights. See Dua v. Comcast Cable, 370 Md. 604, 618 n. 6, 805 A.2d 1061, 1069-1070 n. 6 (2002)

("As pointed out in Frankel v. Board of Regents, 361 Md. 298, 313-314 n. 3, 761 A.2d 324, 332 n. 3 (2000), by not reaching the federal constitutional issues `we do not suggest that the result in this case would be any different if the sole issue were whether the [statutes] violated the federal Constitution. `We simply are making it clear that our decision is based exclusively upon the [Maryland Constitution] and is in no way dependent upon the federal [Constitution]' ). See Michigan v. Long, 463 U.S. 1032, 1041, 103 S.Ct. 3469, 3476, 77 L.Ed.2d 1201, 1214 (1983); Perry v. State, 357 Md. 37, 86 n. 11, 741 A.2d 1162, 1189 n. 11 (1999)."


An important issue raised in this case, but not covered by the Circuit Court's declaratory judgment, concerns the "inactive" voters whose signatures were not counted. The Board acknowledges that it invalidated numerous signatures by "inactive" voters, that is, formerly registered voters whose names had been placed on "inactive voter registration" lists. The precise number of these invalidations is not disclosed by the record.

The Board's purported authority for disqualifying the signatures stems from the Election Code and the Board's corresponding regulations in the Code of Maryland Regulations (COMAR). These provisions create two voter registries for any particular area: one for active voters and another for "inactive" voters. They further provide that anyone whose name appears on the inactive voter registry will not have his or her signature counted if it appears on a petition. Moreover, Art. 33, § 1-101(gg), states that the term "registered voter" in the Election Code "does not include an individual whose name is on the list of inactive voters." Some of these provisions, and the Board's practices in applying them, are inconsistent with the voter qualifications and the right to vote set forth in Article I of the Maryland Constitution and Articles 7 and 24 of the Maryland Declaration of Rights. Before addressing in detail the Election Code provisions and the Board's practices, we shall first review some of the state constitutional requirements.


The Maryland Constitution prescribes the exclusive and uniform qualifications for being on the list of registered voters and being entitled to vote.7 The right to vote is conferred upon any United States citizen, age eighteen or older, who is a Maryland resident, and who is not disqualified by a criminal conviction or mental disability. Article 7 of the Declaration of Rights emphasizes that "every citizen having the qualifications prescribed by the Constitution" has "the right of suffrage." Furthermore, Article I, § 1, mandates that, once entitled to vote in the election district of his or her residence, a qualified voter remains entitled to vote in that district until he or she "shall have acquired a residence in another election district...."


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