Lamone v. Capozzi

• Decision Date: 11 December 2006
• Docket Number: No. 143, September Term, 2005.,143, September Term, 2005.
• Citation: 912 A.2d 674,396 Md. 53
• Parties: Linda H. LAMONE, et al. v. Marirose Joan CAPOZZI, et al.
• Court: Court of Special Appeals of Maryland

Page 674

912 A.2d 674

396 Md. 53

Linda H. LAMONE, et al. v. Marirose Joan CAPOZZI, et al.

No. 143, September Term, 2005.

Court of Appeals of Maryland.

December 11, 2006.

Donna Hill Staton, Deputy Attorney General and Michael D. Berman, Assistant Attorney General of Maryland (Margaret Ann Nolan, Steven M. Sullivan and William F. Brockman, Assistant Attorneys General; Kathryn M. Rowe, Assistant Attorney General, of MD), on brief, for appellants.

M. Albert Figinski (Christopher R. West of MD), on brief, for appellees.

Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

BELL, C.J.

This is the second of two cases involving early voting in Maryland. In Roskelly v Lamone, 396 Md. 27, 912 A.2d 658 (2006), this Court considered a petition to refer Senate Bill 478 (2005), the act, see Chapter 5, Laws of Maryland 2006, establishing early voting in Maryland, to the voters for ratification. Concluding that the appellants, the proponents of the referendum, had been advised of the determination by the State Administrator of Elections that their petition was deficient because it had not been filed timely, but did not timely seek judicial review, we affirmed the judgment of the Circuit Court for Anne Arundel County, which had dismissed their action. 396 Md. at 47, 912 A.2d at 670.

The early voting scheme was substantially amended during the 2006 session of the General Assembly by House Bill 1368 (2006), Chapter 61, Laws of Maryland 2006. Marirose Joan Capozzi, Bettye B. Speed, and Charles W. Carter, the appellees herein, have challenged the constitutionality of the act¹. In the instant case, we address the constitutionality of early voting, probing whether the acts establishing the process are inconsistent with, and, thus, in derogation of, the Maryland Constitution.

A.

The Maryland Constitution designates when elections in Maryland will occur. Article XV, § 7 of the Maryland Constitution provides:

"§ 7. General elections

"All general elections in this State shall be held on the Tuesday next after the first Monday in the month of November, in the year in which they shall occur."

Other constitutional provisions, addressing specific elections, are consistent, e.g., Article XVII, § 2,² Article II, § 2,³ and Article IV, § 3.⁴ Specifically, Article XV, § 7 of the Maryland Constitution states that all elections in Maryland "shall be held on the Tuesday next after the first Monday in the month of November, in the year in which they shall occur." Article XVII, § 2 of the Maryland Constitution states that "elections by qualified voters for State and county officers shall be held on the Tuesday next after the first Monday of November, in the year nineteen hundred and twenty-six and on the same day in every fourth year thereafter." Article II, § 2 of the Maryland Constitution states that the "election of Governor and Lieutenant Governor, under this Constitution, shall be held on the Tuesday next after the first Monday of November." Article IV, § 3 of the Maryland Constitution states that judges of the Circuit Courts shall be elected "at the general election to be held on the Tuesday after the first Monday in November." Thus, historically, the general elections occur on one day, the first Tuesday after the first Monday in November, specified by Article XV, § 7 of the Maryland Constitution.⁵

The Maryland Constitution also addresses, in Article I, "The Elective Franchise," recognizing two methods of exercising it, one it prescribes expressly and the other it authorizes the General Assembly to prescribe. The first method, "by ballot," the Maryland Constitution expressly provides for. It is contained in Article I, § 1, which defines who may vote, where he or she may vote, and the qualifications for doing so. Captioned "Elections by ballot, qualifications to vote," it provides:

"All elections shall be by ballot. Every citizen of the United States, of the age of 18 years or upwards, who is a resident of the State as of the time for the closing of registration next preceding the election, shall be entitled to vote in the ward or election district in which he resides at all elections to be held in this State. A person once entitled to vote in any election district, shall be entitled to vote there until he shall have acquired a residence in another election district or ward in this State."

(Emphasis added).

Under this provision, the ballot must be cast in-person and at the polling place in the ward or election district in which the voter resides.⁶ Because Article I, § 1 provides that a voter is entitled to vote in his residential election district or ward "until he shall have acquired a residence in another election district," a voter who moves from one ward or election district and acquires a new residence in another may only vote in the newly acquired ward or election district.

The second method of voting is by "Absentee Voting," to address those situations when voters, for whatever reason, are unable to vote in-person, at his or her designated polling station on the designated day. While, unlike voting "by ballot," the Maryland Constitution itself does not mandate absentee voting, it authorizes the General Assembly to do so. Article I, § 3, entitled "Absentee Voting," of the Maryland Constitution, provides:

"The General Assembly of Maryland shall have power to provide by suitable enactment for voting by qualified voters of the State of Maryland who are absent at the time of any election in which they are entitled to vote and for voting by other qualified voters who are unable to vote personally and for the manner in which and the time and place at which such absent voters may vote, and for the canvass and return of their votes."

The Constitution, in addition to Article 1, § 3, also delegates to the General Assembly a significant role in the regulation of the election process. See Article III, § 49.⁷ Pursuant to this provision, it is empowered to enact laws to regulate "all matters" relating to elections, including election judges, their "time, place, and manner" and the manner of making election returns. The General Assembly's authority in this area is subject to one, albeit significant, limitation: its regulation and the laws it enacts may not be "inconsistent with this Constitution;" the statutes and regulations enacted by the General Assembly to govern the exercise of the elective franchise must be consistent with the constitutional provisions that provide for the exercise of the elective franchise and which they supplement.

The General Assembly, acting pursuant to Article III, § 49, has taken seriously its responsibility to regulate all aspects of Maryland elections. The many statutes it has enacted are codified in the Election Law Article ("EL"). Maryland Code (2003, 2006 Cum.Supp.). Many of the statutes involve in-person, ballot voting, e.g. Title 9, Subtitles 1 and 2 of the Election Article, which, inter alia, they aim to facilitate, make uniform and make more reliable. For example, EL § 9-205 and 9-206 dictate the Content and Arrangement of the words on the ballot, EL § 9-210 dictates how candidates names shall be listed on all ballots, and EL § 9-208 explains that, if there is a late change or error in the ballots, the local board shall reprint the ballot if there is enough time, or print a sufficient number of stickers to be affixed to each ballot incorporating the change or correction, taking steps also to notify all candidates of the changes.

Moreover, EL § 9-101 of the Election Law Article establishes that "a voting system for voting in polling places and a voting system for absentee voting," shall be selected and certified, and that this certified system "shall be used in all counties." EL § 9-101(b). This voting system requires that "all voting shall be cast by ballot," EL § 9-201(a)(1), and that "only votes cast on a ballot shall be counted." EL § 9-201(a)(2). The State Board of Elections certifies these ballots and each local board of elections prepares the ballots in accordance with the State Board of Elections' prescription, EL § 9-202(b), such that each ballot is "easily understandable by voters," EL § 9-203(1), and "as uniform as possible." EL § 9-204(a).

The General Assembly also has acted, pursuant to the authority given it by Article 1, § 3, to provide "by suitable enactment" for qualified voters "who are absent at the time of any election in which they are entitled to vote," and "who are unable to vote personally," to vote and "for the manner in which and the time and place" where they may do so. See Title 9 Subtitle 3. The right to vote absentee applies to every Maryland election. EL § 9-301. The State Board is required to establish guidelines for the administration of absentee voting by the local boards of election, EL § 9-303, each of which is required to keep a record of absentee voting. EL § 9-302.⁸ EL § 9-304 prescribes who may vote absentee. Although it now states simply, "An individual may vote by absentee ballot except to the extent preempted under an applicable federal law," before its amendment by Chapter 6, § 1, Maryland Laws 2006, it set out a series of circumstances that comported with the dictates of Article 1, § 3. See Maryland Code (2003, 2005 Cum.Supp.) § 9-304 of the Election Law Article.⁹ Absentee ballots may be obtained from the local board of elections by filling out an Absentee Ballot Application. EL § 9-305(a).¹⁰ An absentee voter may use an agent in the absentee voting process and that agent may pick up and deliver the absentee voter's ballot, EL § 9-307,¹¹ or an absentee voter may use a special envelope provided by the State Board. EL § 9-310. An absentee voter may also receive assistance in marking his or ballot. EL § 9-308. By utilizing this method of voting, a voter who is unable to vote personally on Election Day may exercise his or her elective franchise.

The General Assembly, on April 9, 2005, two days before the end of the 2005...