The Democracy Canon and the Oaks Ballot Dispute

By Steve Klepper (Twitter: @MDAppeal)[*]

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.” They quote from Hasen:

The Canon’s stated purposes usually are described in terms of its role in fostering democracy. Its purpose is “to give effect to the will of the majority and to prevent the disfranchisement of legal voters …. ” The canon plays a role in “favoring free and competitive elections ….” It recognizes that the right to vote “is a part of the very warp and woof of the American ideal and it is a right protected by both the constitutions of the United States and of the state.” Liberal construction of election laws serves “to allow the greatest scope for public participation in the electoral process, to allow candidates to get on the ballot, to allow parties to put their candidates on the ballot, and most importantly to allow voters a choice on Election Day.”

Under these unusual circumstances, I do tend to agree with the challengers that the public interest and the Democracy Canon favor removing Oaks’ name from the ballot. What message will Oaks’ name on the ballot send to the voters in his district? Voters who know of his guilty plea will see a soon-to-be-convicted felon on the ballot. Even worse, many who do not follow the news closely will vote for Oaks, only to find their vote was never going to count. Either situation seems likely to undermine voters’ faith in the electoral system.

I don’t see a particularly slippery slope. The challengers filed within 10 days after the guilty plea under Election Law § 12-202, which in broad terms allows a registered voter to “seek judicial relief from any act or omission relating to an election” if “no other timely and adequate remedy is provided by this article.” The Board would not be required to stop the presses any time a candidate seeks to withdraw after the deadline, nor would it be required to exercise discretion. Rather, § 12-202 appears to give the judiciary discretion, in certain extraordinary circumstances such as these, to excuse a deadline in the greater interest of democracy.

[*] Because I am commenting on a pending case, I’ll clarify that I am the sole author of this post, and I am not counsel to any party to the case.