Maryland Appellate Blog: “The Democracy Canon and the Oaks Ballot Dispute”

Steve Klepper:

The Maryland high court is about to hear, on emergency briefing, the appeal in Lamone v. Lewin. The administrator of the State Board of Elections is challenging the April 26 injunction requiring that former state senator Nathaniel Oaks’ name be removed from the June primary ballot.

The Court granted certiorari on Friday. The parties filed opening briefs on Monday and reply briefs on Tuesday, with arguments Wednesday. The briefs are available here.

The briefing is superb on both sides. Julia Doyle Bernhardt and Andrea Trento, with the Office of the Attorney General, and Mark Sitchel and Elizabeth Harlan, representing the challengers, did top-flight work on a frantic schedule. The quality of briefing should make the Court’s job easier, but the ultimate choice is a difficult one.Notwithstanding pending criminal charges against him, then-Senator Nat Oaks filed papers seeking the Democratic nomination for reelection to his Senate seat and for a seat on the Democratic State Central Committee on February 27, 2018. The statutory deadline for withdrawal was March 1. Four weeks later, Oaks pleaded guilty to wire fraud and resigned from the Maryland Senate. But Oaks was still a registered voter and was not in prison at the time, so he still remained technically eligible for the ballot, at least until his post-primary sentencing hearing. Three voters, including two candidates for central committee, filed suit on April 9, seeking to remove Oaks’ name from the ballot. The Anne Arundel County Circuit Court initially denied relief but granted reconsideration when Oaks voluntarily resigned his registration as a Maryland voter.

The Board of Elections’ argument is straightforward. The Election Law Article contains clear deadlines, with “shall” language; it is unworkable for the Board to exercise discretion under these rules; and it is too late from a logistical standpoint to remove Oaks’ name from the ballot. Much of its argument consists of pointing to slippery slopes. The Board asserts that in “this election cycle alone, ten candidates have asked to have their names removed from the ballot since the passing of the withdrawal deadline,” and that removing Oaks’ name would require the Board to accommodate those other requests.

These are weighty concerns, but the challengers ask the Court to follow other states’ lead and read the Election Law Article with an eye to what leading scholar Rick Hasen calls the “Democracy Canon….

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