Hoffman v. State of Md.

• Decision Date: 17 April 1990
• Docket Number: Civ. No. K-90-669.
• Citation: 736 F. Supp. 83
• Parties: Thomas M. HOFFMAN, et al. v. STATE OF MARYLAND, et al.
• Court: U.S. District Court — District of Maryland

736 F. Supp. 83

Thomas M. HOFFMAN, et al. v. STATE OF MARYLAND, et al.

Civ. No. K-90-669.

United States District Court, D. Maryland.

April 17, 1990.

John H. Morris, Jr., Michael H. Davis, Mitchell Merviss, Charles G. Byrd, Jr., Gregory A. Cross, Kathleen McDermott and Susan Goering, American Civil Liberties Union of Maryland, Baltimore, Md., for plaintiffs.

J. Joseph Curran, Jr., Atty. Gen. of Maryland, and Jack Schwartz and Andrew Baida, Asst. Attys. Gen. of Md., Baltimore, Md., for defendants.

Deborah H. Karpatkin, New York City, for amicus curiae 100% VOTE: The Campaign for Universal Voter Registration.

FRANK A. KAUFMAN, Senior District Judge.

Plaintiffs Thomas Hoffman and Timothy Ulrich are citizens of the State of Maryland and residents of Baltimore City. Both are currently registered to vote in Baltimore City.¹ Defendants are the State of Maryland; the Maryland State Administrative Board of Elections (State Board), an agency of the State of Maryland; the individual members of the State Board in their official capacities; the Baltimore City Board of Supervisors of Elections (City Board), an agency of the State of Maryland; and the individual members of the City Board in their official capacities. Pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, plaintiffs seek declaratory and injunctive relief from the operation and application of Md.Ann.Code art. 33, § 3-20 (1986 Repl. Vol.), which requires that all voters who have not voted for a period of five years be removed from the list of registered voters. Subject matter jurisdiction is present under 28 U.S.C. § 1343.²

FACTS

As provided by Md.Ann.Code art. 33, § 3-20, the City Board has compiled a list of registered voters in Baltimore City who have not voted in any primary, general or special election since November 6, 1984. That list contains the names of approximately 55,000 individuals. The City Board intends to mail, on or after 5:00 p.m. on April 16, 1990, to persons whose names appear on that list notice of the cancellation of their registration and the removal of their names from the registry of voters. Thereafter, in accordance with section 3-20, the City Board plans to proceed to remove from the registry of voters all persons who have not, in response to the mailed notice, demonstrated that they have, in fact, voted within the aforementioned five-year period. Those persons whose names are removed from the registry as a result of their failure to vote in any election during the preceding five years will be afforded the opportunity to re-register as provided by article 33 of the Maryland Code.

Plaintiffs Hoffman and Ulrich currently are registered voters residing in Baltimore City. Their names are on the list of voters to be so removed. Neither of them desires to have his name removed. Each alleges, inter alia, that he intended his nonvoting to convey the communication that he did not, during the time period in question, support the candidacy of any person seeking office and that he had heard no message sage during any of the election debates during that period which reflected his views.³ According to Hoffman and Ulrich, by their refusals to vote in any given election, they in fact participate therein. Specifically, they each assert that such nonvoting is reflected in the difference between a 100% voter turn-out and the officially reported percentage of voters who cast ballots, and is in that way made publicly known. To be reflected in that negative tally, plaintiffs point out that a person must be both a registered voter and be recorded as not having voted. Once removed from the list of registered voters, a person, until re-registration, is ineligible from voting, from being so counted as nonvoting, from serving on juries, and from signing petitions for candidates or petitions for referendums.

LAW

Plaintiffs contend that Maryland's five-year purge statute violates the First and Fourteenth Amendments of the Constitution of the United States by restricting their rights to vote and/or not to vote, by contravening equal protection principles and by burdening freedom of speech. In so asserting, plaintiffs rely, inter alia, upon Dixon v. Maryland State Administrative Election Laws, 878 F.2d 776 (4th Cir.1989), in which Judge Winter held that the State's failure to announce the total of write-in votes closed off an avenue for dissident expression, and wrote:

A vote does not lose its constitutional significance merely because it is cast for a candidate who has little or no chance of winning. Nor do we think it loses this character if cast for a non-existent or fictional person, for surely the right to vote for the candidate of one's choice includes the right to say that no candidate is acceptable....

... Indeed, in many cases write-in voters may be backing persons who are not even running for office, in effect expressing the comment "A plague o' both your houses." Such dissident voters are no doubt aware that, as efforts to achieve the actual election of their favorites, their votes probably will be without effect. Nonetheless, these voters cast their ballots as they do, in the hope, however slim, that their votes will succeed as efforts to propagate their views, and so increase their influence. Our system of government accords the expression of this hope the status of a protected right.

The State's failure to report these votes closes off this avenue for dissident expression.

Id. at 782 (footnotes omitted). The right not to vote — and to have one's nonvote recorded — must be viewed in the same light. In that context, the right to vote includes the right not to vote. Nevertheless, plaintiffs' within voting rights, equal protection and free speech claims may not prevail because, to the extent that the Maryland statute restricts the rights of a registrant, it does so on a minimal basis and for a purpose which is rationally related to the interests of the State of Maryland in providing appropriate standards to govern election procedures.⁴ If a person has not voted for five years and receives notice from an election board that his or her name will be removed from the voter registration list unless the person can demonstrate that he or she has voted within the five-year period, that person then has the opportunity forthwith to re-register under rather easily usable state procedures. Cf. Bradley v. Mandel, 449 F.Supp. 983, 987 (D.Md. 1978) (three-judge court). The State's central purpose for the five-year purge statute is to prevent fraud by persons voting under the names of deceased voters or voters who have moved out of the State. That is an appropriate reason. See Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S.Ct. 1245, 1251-52, 36 L.Ed.2d 1 (1973) ("preservation of the integrity of the electoral process is a legitimate and valid State goal"). While plaintiffs assert that there are means less restrictive than those used in the challenged Maryland statute and while some states do utilize somewhat different procedures, the Maryland procedures for registration are sufficiently simple that a person who has not voted within a five-year period can re-register, in effect, with less difficulty and time consumption than is true with regard to most persons who exercise their rights to vote and go to the polls, even if they do not have to stand in line before voting.⁵

While in cases challenging state statutes which totally restrict the right to vote, such as Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), in which the challenged statute absolutely barred from voting anyone who moved into the state less than one year before the close of registration, the Supreme Court has applied a strict scrutiny type of standard and has required the existence of a "compelling" state interest. See also Hill v. Stone, 421 U.S. 289, 95 S.Ct. 1637, 44 L.Ed.2d 172 (1975); Muller v. Curran, 889 F.2d 54, 56-57 (4th Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1121, 107 L.Ed.2d 1027 (1990); Hayward v. Clay, 573 F.2d 187 (4th Cir.1978), cert. denied, 439 U.S. 959, 99 S.Ct. 363, 58 L.Ed.2d 351 (1978), which involved state statutes which effectively disenfranchised all potential voters who did not own property. This case, on the other hand, like Duprey v. Anderson, 518 P.2d 807, 809 (D.Colo.1974), involves a purging statute with opportunity for re-registration. Herein, the statute involved contains no absolute restriction on voting; rather, it simply requires re-registration under a procedure which is not burdensome to follow. See Broadwater v. State, 306 Md. 597, 605, 510 A.2d 583 (1986) (referring to "the ease with which one may register under the current law").

In cases in which plaintiffs similarly situated to plaintiffs have challenged purge-type standards on the basis of unconstitutional burdening of the right to vote, those challenges, except in one case,⁶ have failed. Williams v. Osser, 350 F.Supp. 646, 653 (E.D.Pa.1972) (three-judge court); Citizens' Committee for the Recall of Jack Williams v. Marston, 109 Ariz. 188, 507 P.2d 113, 116 (1973); Duprey, 518 P.2d at 809. In those cases, while the right to vote has been recognized as a fundamental constitutional right, nevertheless, the courts have concluded that the right is not absolute and that it is not overburdened by the type of statute herein involved. In Williams v. Osser, a three-judge court sustained the constitutionality of a Pennsylvania law which provided "for removal from the voter registration lists of persons who have not voted at any election or primary during the two immediately preceding calendar years and who, after notice, have failed to request reinstatement of registration...." 350 F.Supp. at 647. Plaintiffs in Osser claimed that the two-year purge statute "places an unconstitutional burden on the fundamental right to vote," and that the provision "violates the equal protection clause by singling out for separate treatment those who have not voted for two consecutive...