Monday, February 12, 2007

Fritszche v. Maryland State Board of Elections (Ct. of Appeals)

Filed February 12, 2007. Opinion by Chief Judge Robert M. Bell.

From the opinion's headnote:

The mere occurrence and/or experiencing of processing problems with absentee ballots does not justify an extension of time for the filing of such ballots, absent proof that those problems were the direct cause for voters not voting.
In an interlocutory appeal from the decision of the Circuit Court for Anne Arundel County, the petitioner asked the Court to overturn the decision below, which had denied a temporary restraining order against election officials stemming from the alleged late delivery of some absentee ballots.

The petitioner is a Maryland resident and student living in New York who had, in mid-August 2006, requested an absentee ballot from the County Board of Elections in Catonsville. The absentee ballot sent to her was postmarked on November 1, 2006 but did not arrive in New York until November 6, 2006, the day before the election. The returned ballot was postmarked November 7, 2006, and was not counted in the final tally since it was not "completed and mailed before election day," as required by the relevant section of COMAR.

The petitioner filed suit, asserting a violation of the "right to vote" provisions of Article I, Sections 1 and 3 of the Maryland Constitution and Article 7 of the Declaration of Rights, the "equal protection" guarantees of Article 24 of the Declaration of Rights and the 14th Amendment of the federal Constitution, and the provisions of Section 9-304 of the Election Law Article of the Maryland Code, and asking that all absentee ballots postmarked on Election Day be accepted. The petitioner noted the extraordinary number of absentee ballots requested in this election, prompted in part by concerns over use of the new electronic voting machines, as expressed by Governor Ehrlich and others, and a number of examples of very late mailing of many of those ballots.

The respondents noted that there is no constitutional right to an absentee ballot, and argued that the regulations were reasonable restraints designed to protect the integrity of the voting process. Moreover, the petitioner had not sufficiently demonstrated harm, in that the ballot could have been hand-delivered to the polling place and counted on election day. The judge agreed, and denied the petitioner's request for a TRO.

On appeal, the petitioner argued that the respondent, by failing to answer the overwhelming call for absentee ballots in a timely fashion, had denied the petitioner the right to vote, or at least had imposed a severe burden on that right, and that the COMAR provision was only a discretionary exercise of the respondent's regulatory powers and was not required by statute. The respondent countered that it was impossible to determine the actual reason for the late mailings, since a number of factors were simply unknown. The Court agreed, noting that the skimpy record below gave little reason to overturn the judge's decision below in denying the TRO, given the petitioner's burden to prove 1) the likelihood that the petitioner would succeed on the merits, 2) the 'balance of inconvenience' between granting or denying the TRO, 3) the petitioner would suffer irreparable injury, and 4) the public interest.

The Court also rejected the petitioner's argument that Lamb v. Hammond required that state election statutes be strictly applied notwithstanding the negligence of state officials, instead finding that, in a absence of any clear evidence of the opposite conclusion, Lamb compels the exclusion of the noncompliant votes in order to safeguard the election process.

The full opinion is available in PDF.

The case was a "highlighted case." Thus, the briefs and other material are posted online by the Court of Appeals and are available here.

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