Ademiluyi v. Egbuono

April Ademiluyi, et al. v. Chizoba Egbuonu, et al., No. 34, September Term, 2018. Opinion by Getty, J. ELECTION LAW—NOMINATIONS—NOMINATIONS BY POLITICAL PARTIES IN GENERAL The Court of Appeals held that the Libertarian Party of Maryland’s nomination of a judicial candidate for the Circuit Court of Prince George’s County was invalid, because the candidate was a registered Democrat and the Libertarian Party of Maryland’s Constitution requires that candidates for the party be registered as Libertarians. ELECTION LAW—LIMITATIONS AND LACHES A voter’s challenge to the qualifications of a candidate for judicial office was not barred by the doctrine of laches, where the challenge was based on the candidate’s party affiliation, because there was little media attention surrounding her candidacy, documents concerning the candidate’s political affiliation were in the exclusive possession of the State Board of Elections, and Appellees brought action just one day after receiving the relevant documents through a Maryland Public Information Act request submitted to the State Board of Elections. Circuit Court for Prince George’s County Case No.: CAL18-26458 Argued: September 6, 2018 IN THE COURT OF APPEALS OF MARYLAND No. 34 September Term, 2018 APRIL ADEMILUYI, et al. v. CHIZOBA EGBUONU, et al. Barbera, C.J. *Greene, *Adkins, McDonald, Watts, Hotten, Getty, JJ.

Opinion by Getty, J. Watts, J. concurs in judgment only. Filed: August 29, 2019 *Greene and Adkins, J.J., now retired, participated in the hearing and conference of this Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. case while active members of this Court; after Suzanne Johnson being recalled pursuant to the Md. Constitution, 2020-03-23 09:32-04:00 Article IV, Section 3A, they also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk The State is not constitutionally barred from evincing a policy of nonpartisanship in judicial elections while nevertheless keeping the election process itself an inherently partisan affair; nor is it barred from relying on the long-established infrastructure of a political party primary to accommodate the election of candidates it desires to be selected on bases apart from partisan politics. Judge Irma S. Raker Suessmann v. Lamone, 383 Md. 697, 727 (2004).

Maryland’s electoral process for conducting elections of circuit court judges is an imperfect hybrid. As this Court discussed in Suessmann v. Lamone, 383 Md. 697 (2004), this judicial electoral process is a hybrid because it is neither purely partisan nor purely nonpartisan. Circuit court judges have run in partisan elections just as other candidates on the ballot since the Constitution of 1851. An appearance of nonpartisanship was achieved when the General Assembly passed a bill in the 1941 legislative session to remove the designation of party affiliation in the listing of candidates for the office of circuit court judge on the ballot.

More significantly, perhaps, the hybrid quality exists because this judicial electoral process serves two functions. First, in order for the incumbent judge to retain his or her seat, the judge is required to be a candidate in a potentially contested election. Incumbent judges are required to run after their initial gubernatorial appointment and at the end of each fifteen-year term. The process for initial appointment includes candidates being vetted through a judicial nominating commission.1 Second, the electoral process allows for challengers, who may or may not have been vetted through the judicial nominating commission, to file as candidates as long as they qualify under the constitutional provisions to serve as a circuit court judge.

The issue confronting this Court in the instant appeal arises from legislation enacted by the General Assembly in 2006 that allows non-principal parties to nominate candidates for circuit court judge elections through whatever nomination process is required by their party bylaws. The critical advantage of a circuit court judge candidate nominated by a non- principal party is that the nominee bypasses the primary election and moves directly to the general election.2 1 In 1970, Governor Marvin Mandel issued the first executive order that established a judicial nominating commission. See http://mdcourts.gov/judgeselect (https://perma.cc/EDL7-YQDD). The purpose of judicial nominating commissions is to ensure proper vetting of judicial candidates and the appointment of qualified candidates and this practice has been maintained by subsequent Governors.

See Exec. Order 01.01.2015.09 for the executive order that was in effect during the time period of the 2018 election. 2 The distinction between principal and non-principal parties is based upon the amount of support a party was able to attract in the preceding Gubernatorial Election. See EL § 1- 101(dd), (jj), (kk); see also EL 8-202. The term “principal political parties” is defined in the Election Law Article to encompass only “the majority party and the principal minority party.” EL § 1-101(kk).

The term “principal minority party” is defined as “the principal political party whose candidate for Governor received the second highest number of votes of any party candidate at the last preceding general election.” EL § 1-101(jj). Whereas, a majority party is defined as “the political party to which the incumbent Governor belongs if the incumbent Governor is a member of a principal political party.” EL § 1-101(dd). The definition further provides that “[i]f the incumbent Governor is not a member of one of the two principal political parties, “majority party” means the principal political party whose candidate for Governor received the highest number of votes of any party candidate 2 We are asked to determine whether the Circuit Court for Prince George’s County erred by entering a preliminary injunction which prohibited the State Board of Elections (“the State Board”) from certifying the ballot for the 2018 Gubernatorial General Election with April Ademiluyi listed as a candidate for circuit court judge. More specifically, we must determine whether nomination by the Libertarian Party of Maryland (“the Libertarian Party”) of Ms. Ademiluyi was improper where the Libertarian Party’s Constitution requires that its candidates for office be registered Libertarians and Ms. Ademiluyi was a registered Democrat.

For two reasons, we concluded that Ms. Ademiluyi’s candidacy was impermissible under the relevant provisions that regulate judicial elections in Maryland: (i) her candidacy is at odds with the Libertarian Party’s Constitution, which requires all of its candidates for public office to be registered members of the party; and (ii) a judicial candidate’s route to access the ballot is dependent upon his or her party affiliation— candidates registered with a principal party may only achieve this end through participation in primary elections.3 Upon learning of Ms. Ademiluyi’s party affiliation through a Maryland Public Information Act (“MPIA”) request, Chizoba N. Egbuonu, Luther V. Watkins, Sr., Manuel at the last preceding general election.” Id. Historically, the principal political parties within the State have been the Democratic and Republican Parties. 3 This procedure applies to all challengers for the office of circuit court judge. Incumbent judges who have been appointed by the Governor or have completed their fifteen-year term, pursuant to Article IV, Section 5 of the Maryland Constitution, are eligible to file in the primary election regardless of the incumbent judge’s party affiliation. 3 R. Geraldo, and Stella A. Grooms (collectively “Appellees”), challenged her qualifications for nomination as a circuit court judge under Maryland’s election code. At a hearing before the Circuit Court for Prince George’s County, Ms. Ademiluyi failed to appear and therefore made no arguments.

After the circuit court ordered that her name be removed from the ballot, Ms. Ademiluyi appealed to this Court and presented us with several questions for review in her appeal memorandum.4 However, a grant of preliminary injunction falls within the circuit court’s discretion and the appropriate frame of review is whether the circuit court abused its discretion in granting the preliminary injunction. See Schade v. 4 Ms. Ademiluyi raises three issues in her appeal memorandum: 1. Does a voter, whom is not affiliated with the Maryland Libertarian Party, have standing to challenge an alleged failure of the party members to comply with its bylaws in nominating a candidate for office? 2. Does Election Law Title 5 Candidates Subtitle 2 Qualifications § 5-201 require political party bylaws to address the party affiliation of the judicial candidates they nominate? 3.

May a Circuit Court’s ruling of a preliminary injunction without a hearing on the merits and an opportunity to exercise the statutory right to an appeal a [sic] a decision on the merits remove a candidate’s name from the ballot? Generally, court will not decide an issue “unless it plainly appears on the record to have been raised in or decided by the trial court.” Md. Rule 8-131. We have previously indicated that this rule is intended, to require counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings, and . . . to prevent the trial of cases in a piecemeal fashion, thus accelerating the termination of litigation. Maryland State Bd. of Elections v. Libertarian Party of Maryland, 426 Md. 488, 517 (2012) (quoting Fitzgerald v. State, 384 Md. 484, 505 (2004)). 4 Maryland State Bd. of Elections, 401 Md. 1, 33 (2007); see also Ehrlich v. Perez, 394 Md. 691, 707 (2006).

Oral argument in the present appeal was held on September 6, 2018. That same day, we issued a per curiam order affirming the circuit court’s grant of preliminary injunctive relief which enjoined the State Board from certifying the general election ballot with Ms. Ademiluyi’s name listed as a candidate. Ademiluyi v. Egbuonu, 461 Md. 455 (2018). In that order, we indicated that an opinion detailing the reasoning behind our affirmance of the circuit court’s decision would follow.

In explanation of that per curiam order, we conclude that the Libertarian Party’s nomination of Ms. Ademiluyi did not comport with the requirements of § 5-701 of the Election Law Article (“EL”) and that the circuit court’s grant of preliminary injunction is sufficiently supported by the appropriate factors. We now give our reasons for the September 6, 2018 order. The election of judges in Maryland has been the subject of a lengthy and long-standing debate—initially emerging from constitutional reform of the mid-19th century. It is useful to begin our analysis with a historical review of the partisan underpinnings of this imperfect hybrid of an electoral process.

BACKGROUND The History of Judicial Elections in Maryland For the first seventy-five years of Maryland’s history after the adoption of the Constitution of 1776, judges were appointed by the Governor and confirmed but were not required to run in contested elections. Maryland’s first constitution provided for the 5 Governor to appoint all judges with the advice and consent of the Governor’s Council. Md. Const. of 1776 § 48 (1776). The Governor’s Council, under the Constitution of 1776, consisted of five members chosen by vote of the State Senate and House of Delegates.

The Governor’s Council played an advisory role and generally provided the Governor with advice and assisted in his appointments, as provided for elsewhere in the Constitution. Md. Const. of 1776 § 26 (1776).5 In 1836, the Governor’s Council was abolished by constitutional amendment and full executive power was vested in the Governor. 1836 Md. Laws ch. 197 § 13. Instead of confirmation by the Governor’s Council, the Governor made judicial appointments with the advice and consent of the Senate. 1836 Md. Laws ch. 197 § 14. Constitutional reform of the mid-19th century modified the method of selection of judicial candidates by introducing contested judicial elections similar to our contemporary system.

During the Constitutional Reform Convention of 1850 (“1850 Convention”), a fierce debate emerged concerning the method of selecting judges. The debate primarily consisted of two different methodologies: (i) popular election; and (ii) appointment by the Governor for an indefinite term, with the Governor holding the power to impeach and remove an appointed judge only upon bad behavior.6 Debates and Proceedings of the 5 See also Maryland State Archives, Archives of Maryland vol. 73: Kilty’s Land-Holder’s Assistant, and Land-Office Guide, Preface 5 (1808) available at: http://aomol.msa.maryland.gov/000001/000073/html/index.html (https://perma.cc/HP36- G7XZ). 6 There was a subsidiary debate among the members of the Constitutional Reform Convention of 1850 concerning whether judges should be appointed for life or subject to a 6 Maryland Constitutional Reform Convention to Revise the State Constitution, Vol. II (1851) (“1850 Debates and Proceedings”). The popular election system carried support from the Democrats while an appointed judiciary appealed to members of the Whig Party.

Id. As evidenced by the debates, both the Whigs and Democrats were concerned about partisan influence on judicial offices stemming from whichever selection process was adopted. Id. at 497–99. The Democrats expressed concern that appointment by the Governor would transform judicial offices into partisan offices.

Id. at 457–62. Similarly, the Whigs expressed concern that, without indefinite terms, incoming Governors would have the power to dismiss incumbent judges throughout the State and appoint newly partisan judges. Id. at 470–73, 476. In addition to debates concerning the method of selection, a secondary issue emerged concerning temporal aspects of judicial elections.

Id. at 490–501. Primarily, some members of the 1850 Convention argued that elections for judicial offices and other courthouse officials including State’s Attorneys and Clerks of the Court, should be held the year following elections for other public officers. Id. Those involved believed that temporal distance between elections for judicial offices and other public offices, such as the Governor and State Legislature, would distance judicial elections from the partisan undercurrent of elections for these public offices.

Id. at 537–44. definite term. Under the proposal of the Whig Party, judges would have a lifetime appointment. 1850 Debates at 529–32. 7 Ezekiel F. Chambers, a member of the 1850 Convention and Judge of this Court, summarized the general concerns over the politicization of judicial elections in his sweeping remarks before the 1850 Convention:7 I am aware, Sir, that it is said the people are competent to elect other officers; and if so, why not to elect judges? *** Now this is the relation in which the judge stands to the people. The judge is supposed to know the law; the people are known not to know it. He is to exercise his judgement, not theirs – to express his opinions, not theirs.

Political officers are usually elected for a very short term, and in reference to particular, distinct, well understood questions. They have a certain line of duty, and everybody understands what it is. But it is not so in the case of the judge; his position is perfectly the reverse, in all these particulars. Above all, it differs in one other most important respect.

In a political officer, you look for a politician; you expect him to act for those who elected him, and if he never were a politician before, he will surely become such, by serving a while as the representative of the people. Just the reverse it is with the judge. He must not act the politician; he must not know one party from another in the discharge of his duties; and if he had been ever so ardent a politician before, he is sure to cease to be such, in a very short time after he is placed upon the bench. 1850 Debates and Proceedings at 482. 7 Judge Chambers, of Kent County, was a judge on this Court from 1834 to 1851. In addition to his role on this Court, Mr. Chambers served as a member of the Maryland Senate from 1821 to 1825, of the United States Senate from 1826 to 1834, and the Chief Judge of the second judicial circuit of Maryland.

Archives of Maryland, Ezekial Forman Chambers, MSA SC 3520-1989. At that time, the Chief Judge of a judicial circuit had dual roles—serving as a trial court judge of the circuit but also, by virtue of being the circuit’s Chief Judge, as an appellate judge of the Court of Appeals. 8 Other members of the 1850 Convention including William A. Spencer echoed Mr. Chambers’ concerns over the selection of judges through popular election:8 It is my apprehension that by giving the election of the judges to the people, the independence of the bar will be greatly affected. I wish it to be distinctly understood, that I have not the slightest fear of the integrity of the people but my apprehension is that that integrity and confidence will be abused. Id. at 499.

However, the 1850 Convention was not unified behind an appointed judiciary and a substantial number of its members supported the election of judicial officers. This is evident from Charles J.M. Gwinn’s comments on the debate:9 The gentleman from Anne Arundel [Judge Thomas Beal Dorsey], has drawn a strongly marked picture of the evils attending upon an election of the judges. It has not occurred to him, apparently, that all his arguments apply with equal force to every elective office. If a disposition to obtain popular support and applause, can induce a judge to depart from the line of his public duty, with equal reason may we apprehend that the same evil would ensue upon the method which obtains at present in the selection of our Governors, and members of the Legislature, and of all others who are entrusted with political power.10 8 Mr. Spencer, of Queen Anne’s County, was a member of the Maryland House of Delegates from 1838 to 1839, a member of the 1850 Constitutional Convention, and Clerk of this Court from 1862 to 1863.

Archives of Maryland, William A. Spencer, MSA SC 3520-13841. 9 Mr. Gwinn, of Baltimore City, was a member of the Maryland House of Delegates in 1849, a member of the 1850 Convention, the first State’s Attorney of Baltimore elected under the 1851 Constitution from 1857 to 1861, and Attorney General of Maryland from 1875 to 1883. Archives of Maryland, Charles J. M. Gwinn, MSA SC 3520-1507. 10 Chief Judge Dorsey, of Anne Arundel County, was a member of the Maryland House of Delegates in 1807, the United States Attorney for Maryland from 1811 to 1812, the Attorney General of Maryland from 1822 to 1824, an Associate Judge on this Court from 1824 to 1848, and Chief Judge of this Court from 1848 to 1851. Archives of Maryland, Thomas Beale Dorsey, MSA SC 3520-1498. 9 Id. at 497. After a lengthy debate, a broad restructuring of the Maryland judiciary was authorized upon the ratification of the Constitution of 1851.

The trial courts were reorganized into eight judicial circuits.11 Initially, each circuit except the fifth, i.e. Baltimore City, was limited to one judge who was subject to election on a partisan ballot. Md. Const. of 1851 art. IV, § 8 (1851).

The Judiciary Article of the new Constitution provided that, upon a vacancy in any judgeship, the Governor shall appoint a replacement with the advice and consent of the Senate. The appointed judge shall hold the office until the following general election for delegates. Md. Const. of 1851 art. IV, § 25 (1851).

To retain office, the appointed judge became a candidate in partisan elections with the potential that challengers would also file to run in the election. The successful candidate in the election, once the results were certified, would receive a commission for a term of ten years.12 11 Under the 1851 Constitution, the eight judicial circuits consisted of the following counties: (1) St. Mary’s, Charles, Prince George’s, and Anne Arundel Counties, (2) Howard, Calvert, and Montgomery Counties; (3) Frederick and Carroll Counties; (4) Washington and Allegany Counties; (5) Baltimore City; (6) Baltimore, Harford, and Cecil Counties; (7) Kent, Queen Anne’s, Talbot, and Caroline Counties; (8) Dorchester, Somerset, and Worcester Counties. Md. Const. of 1851 art. IV, § 19 (1851). 12 The “general election for delegates” essentially means the election year in which the members of the Maryland House of Delegates are elected.

In the mid-19th century, elections were held every year and thus candidates for judicial offices would run in the same cycle as Delegates. See 1850 Debates and Proceedings at 204. The introduction of quadrennial elections through the “Fewer Elections Amendment[,]” i.e. Article XVII of the Maryland Constitution, did not occur until its adoption in 1922.

Cty. Comm’rs for 10 When the Constitution of 1864 was adopted and ratified, the Judicial Article and the methods of judicial candidate selection saw little substantive change to the preceding provisions. The eight judicial circuits were expanded to thirteen circuits. In addition, the terms of circuit court judges were increased from ten to fifteen years.13 See Md. Const. of 1864 art.

IV, §§ 3, 5 (1864). The Constitution of 1864 was the most short-lived Constitution in Maryland’s history and was replaced only three years later in 1867 with substantially the same provisions for circuit court judges. See Md. Const. of 1867 art. IV, §§ 3, 5 (1867).

The State’s current Constitution is the Constitution of 1867, as amended, and thus these 19th century constitutional underpinnings relating to the selection of circuit court judges are relatively unchanged. See Md. Const. art. IV, §§ 3, 5. First, circuit court judges are elected at general elections for a term of fifteen years.

Md. Const. art. IV, § 3. Upon a vacancy in a judicial office, the Governor is authorized to appoint a judge who shall hold the office until either the first biennial general election for representatives in Congress following the expiration of his or her predecessor’s term. Md. Const. art.

IV, § 5. In Montgomery Cty. v. Supervisors of Elections of Montgomery Cty., 192 Md. 196, 204 (1948). 13 Under the 1867 Constitution, the prior eight judicial circuits were expanded to thirteen. Md. Const. of 1867 art. IV, § 19 (1867).

The judicial circuits were distributed as follows: (1) St. Mary’s and Charles Counties; (2) Anne Arundel and Calvert Counties; (3) Prince George’s and Montgomery Counties; (4) Frederick County; (5) Washington County; (6) Allegany County; (7) Carroll and Howard Counties; (8) Baltimore County; (9) Harford and Cecil Counties; (10) Kent and Queen Anne’s Counties; (11) Talbot and Caroline Counties; (12) Dorchester, Somerset, and Worcester Counties; and (13) Baltimore City. Id. 11 situations where the vacancy is brought about by means other than the expiration of a predecessor judge’s term, the appointed judge participates in the general election occurring after one year after the opening of such a vacancy. Md. Const. art. IV, § 5.

Circuit court judges are the only judges in Maryland that are first appointed by the Governor and then must participate and win a subsequent election in which challengers can file to run against them.14 See Md. Const. art. IV, § 3 (excepting District Court and appellate judges from participating in contested elections); see also Md. Const. art. IV. § 5A (providing that, after appointment by the Governor, appellate judges must participate in retention elections); Md. Const. art. IV, § 41D (indicating that District Court judges are appointed by the Governor and confirmed by the Senate and are not required to participate in judicial elections).

Maryland’s present Constitution also mandates qualifications that all prospective judicial candidates must attain.15 Judicial Nominating Conventions and Primary Elections Pursuant to the Constitution of Maryland, the General Assembly has the responsibility of regulating elections. Lamone v. Capozzi, 396 Md. 53 , 60–61 (2006); see 14 Judges of the Orphan’s Court are elected in purely partisan contests in both the primary and general elections, but in contrast to circuit court elections, the Governor plays no role within this process. See Md. Const. art. IV. § 40. 15 Constitutionally, judicial candidates must meet the following qualifications: (i) Maryland citizenship; (ii) qualified voters; (iii) residents of the State for at least five years; (iv) residents of the county, city, district, or judicial circuit, within which they seek election, for at least six months preceding election or appointment; (v) at least thirty-years old; (vi) admitted to practice law within the State; and (vii) be “distinguished for integrity, wisdom and sound legal knowledge.” Md. Const. art.

IV, § 2. 12 also Md. Const. art. I, § 3; Md. Const. art. III, § 49. Accordingly, throughout the history of the State Constitution and its various amendments, the General Assembly has supplemented these constitutional provisions by enacting and amending the statutory law governing elections, primarily former Article 33 of the Maryland Code and the present-day Election Law Article.

Prior to the adoption of primary elections in the early 20th century, political parties nominated candidates for circuit court judge by party conventions. By the late 19th century, the two principal political parties were the Democratic and Republican parties. These parties would nominate their candidates through separate statewide and county nominating conventions. See 1896 Md. Laws ch. 202 § 36–39.

For judicial elections, if a circuit was composed of only one county, the candidate for circuit court judge was selected at the county nominating convention held by the Democratic, Republican, or other political party. If a circuit was composed of more than one county, then each party held a special judicial nominating convention for the circuit at which representatives from each county would vote to select the party’s candidate for circuit court judge. The party nominating convention allowed parties to nominate a particular candidate to run for judicial office whose name was then placed on the general election ballot. Id.; see also Jackson v. Norris, 173 Md. 579, 586 (1937); 1890 Md. Laws ch. 538.

Throughout this period, ballots were printed by the political parties and distributed to voters to be placed in the ballot box at their precinct polling location. Unlike ballots today that display the names of all candidates for each office, these ballots only contained the names of the political party’s candidates. Thus, a voter could vote the entire slate on 13 the printed party ballot,16 by dropping it in the ballot box. Alternatively, they could scratch through and mark up the printed ballot with different names if they were departing from the party’s slate or they could arrive at the polls with their own handwritten ballot. 1805 Md. Laws ch. XCV.17 The partisan nature of these circuit court judicial elections is clear on its face: (1) candidates for circuit court judge were selected by each party at a county nominating convention or at a multi-county judicial nominating convention; and (2) the judicial candidate’s name was printed on the party’s printed partisan ballot that was 16 This was the general practice throughout Maryland and the United States as a whole, prior to the introduction of public ballots.

See Will Evans, Boston Athenæum Digital Collections, Nineteenth-Century Political Ballots, available at: https://cdm.bostonathenaeum.org/digital/collection/p16057coll29 (https://perma.cc/Z28E-N49P) see also Arthur Crosby Ludington, American Ballot Laws 1888–1910, 31–33 (Univ. of the State of N.Y.) (1911). 17 For example, this method of balloting and the process for administration of elections is authorized as follows: [T]he elections aforesaid respectively shall commence at nine o’clock in the morning of the respective days of election, and shall continue without adjournment, and be closed at six o’clock in the evening of the same day, and no ballot shall be taken before the said hour of nine o’clock in the morning, nor after the said hour of six o’clock in the evening, and every vote shall deliver to the judge or judges of the election in the district in which he offers to vote, a ballot, on which shall be written, or printed, the name or names of the person or persons voted for, and the purpose for which the vote is given, plainly designated, and the ballot so delivered in, and received by the judge or judges of the election, shall be deposited in the ballot box till the poll is closed . . . . and if any voter shall offer any more than one ballot, with a fraudulent design, every such person shall forfeit and pay the sum of twenty dollars for every such offence. 1805 Md. Laws ch. XCV § XII. 14 distributed to voters with encouragement to vote the entire party slate by dropping the ballot, unmarked, into the ballot box. Three significant changes occurred to the electoral process in the late 19th and early 20th centuries. First, the General Assembly required that official ballots be printed by the county election board. 1890 Md. Laws ch. 538. Second, the General Assembly enacted provisions that the political parties must follow to nominate their candidates to be listed on the official ballot.18 Third, a system of statewide primary elections was created for the benefit of the principal political parties to allow selection of their nominees for the general election by popular vote.

This system of primary elections more closely resembling the modern iteration appeared in the early 20th century. In 1904, the General Assembly enacted a provision within the Public Local Laws of Allegany County, which provided that the two foremost political parties within the County would select candidates for public offices to participate in the general election by primary election. Kenneweg v. Cty. Comm’rs of Allegany Cty., 102 Md. 119, 120 (1905); see also 1904 Md. Laws ch. 508 § 105.

Individually, other counties sought legislation to hold county-wide primaries until 1910 when the first statewide primary election system was enacted. See Md. Laws 1910 ch. 741; Foxwell v. Beck, 117 Md. 1 (1911). With the advent of county and statewide primaries, the selection of circuit court judges by the principal parties was accomplished through contested partisan 18 The General Assembly accomplished these two revisions in 1896 within the legislation that repealed the existing election code and reenacted a new election code, titled Article 33. 1896 Md. Laws ch. 202. 15 primaries. Non-principal parties selected their judicial candidates through the traditional party nominating convention or primary meetings. 1896 Md. Laws ch. 202 § 36–39.

Governor O’Conor and the Bond Commission A major impetus to reform judicial elections occurred during the administration of Governor Herbert O’Conor. An attorney and former Attorney General, O’Conor was elected Governor in 1938 and reform of the judiciary and the elimination of partisan elections of judges was a priority of his legislative platform. In his first inaugural address on January 11, 1939, he commented, I should now like to make known my views with respect to the Judiciary. No single fact has been impressed upon me more forcibly than the necessity of having the judiciary function without outside interference.

I am sure that we agree that a State is fortunate whose courts are administered by high-minded judges, incorruptible, learned, and experienced. My policy shall be always to assist in securing the very best judges and in having them function unhampered and uninfluenced in the discharge of their important duties. Maryland is justly proud of its higher courts and illustrious line of judges who have brought distinction and honor to Maryland. It seems timely, however, to point out that the methods might be devised to avoid the possibility of future election of judges being thrown into political contests.

The administration will support well considered plans to prevent such an occurrence. Herbert O’Conor, State Papers and Addresses of Governor Herbert R. O’Conor (1947). Governor O’Conor initiated a broad package of judicial election reform including revamping this Court as a full-time appellate bench.19 However, in the legislative 19 At the time, the Court of Appeals was comprised of the eight chief judges of their individual judicial circuits. See Final Report of the Bond Commission; O’Conor Backs Bond Court Plan: Calls it ‘Final Effort to Strengthen Judiciary’, The Sun (1837–1993); Nov. 3, 1944; ProQuest Historical Newspapers: The Balt.

Sun. 16 atmosphere created by Governor O’Conor of insulating judicial elections from partisan influence by eliminating judicial elections, Delegate Bernard S. Melnicove offered an alternative approach by introducing legislation in 1941 (House Bill 800) to simply remove party affiliations from the ballot of judicial candidates. See Prepares Bill to Take Bench from Politics, Kerney, N.T., The Sun (1837–1993); Mar 15, 1941: ProQuest Historical Newspapers: The Balt. Sun. Specifically, the legislation required that the names of judicial candidates be listed in alphabetical order “without any party label or other distinguishing mark or location which might directly or indirectly indicate the party affiliation of any such candidate.” 1941 Md. Laws Ch. 703.

Governor O’Conor’s legislative proposals to reform the judiciary were controversial and after their initial failure, he formed the Commission on the Judiciary Article of the Constitution of Maryland, widely referred to as the Bond Commission, and appointed Carroll T. Bond, the Chief Judge of this Court, as chairman.20 The Bond Commission initially intended to pursue the Governor’s aim of reforming judicial electoral process with an eye towards eliminating partisan elements. The Melnicove bill created substantial confusion for the judicial candidates required to run in the 1942 election, because this legislation did not provide any new provisions for the conduct of judicial elections except to remove party affiliation from the ballot. Id. 20 Chief Judge Carroll T. Bond was a trial judge on the Supreme Bench of Baltimore City, now the Circuit Court for Baltimore City, from 1911 to 1924, and was Chief Judge of this Court from 1924 to 1943. Archives of Maryland, Carroll T. Bond, MSA SC 3520-1630. 17 Attorney General William C. Walsh was asked to opine on whether candidates were able to file in both the Democratic and Republican primary elections, which was not provided for in the bill that passed the General Assembly.21 Ruling Asked on Judiciary: Question on Judges Filing as Candidates of Both Parties Involved, The Sun (1837–1993); May 9, 1942; ProQuest Historical Newspapers: The Balt.

Sun. The Attorney General summarized his opinion that “a Democratic Judge may file as a candidate for the Republican nomination in a primary, and that a Republican Judge may file for the Democratic nomination in a primary, and the only remaining question is whether a Judge may file in both primaries for both nominations.” 61 Op. Atty Gen. 126, 128 (1942). The Attorney General opined that the statute had no prohibition against a candidate filing in the primary election for more than one political party.

Id. at 130. He based his conclusion, in part on the fact that H.B. 800 removed party affiliations from ballots, and commented “[t]he purpose of the proposal to have the sitting Judges concerning whom you inquire, nominated by both the major political parties in the primary next September, is to eliminate, in so far as possible, any partisanship in the election of the members of the judiciary, and the passage of [1941 Md. Laws ch. 703 (H.B. 800)] is an indication of legislative approval of this purpose.” Id. at 129. 21 Attorney General Walsh’s opinion was in response to a letter from James L. Hennegan, then President of the Board of Supervisors of Elections for Baltimore City. 61 Op. Atty Gen. 126, 128 (1942). Mr. Hennegan specifically requested Mr. Walsh to opine as to whether several incumbent judges, i.e.

Carroll T. Bond, George A. Solter, Eugene O’Dunne, and Joseph N. Ulman, could file in both the Democratic and Republican primary elections. Id. Based upon this advice, the four judges cross-filed and were successful in their elections. 18 The Bond Commission proceeded with its work and presented its findings and recommendations that were divided in an interim and a final report. In its interim report, the Bond Commission established the priority of recommending modifications to the structure of the Court of Appeals and appellate judges.

Interim Report of the Commission on the Judiciary Article of the Constitution of Maryland 6 (1942) (“Interim Report of the Bond Commission”). The Commission recommended that such judges initially be appointed by the Governor and serve a term of at least one year, at which point the appointed judge should stand for election in the following general election for either State or Federal offices.22 Id. at 4. Additionally, the Commission recommended that judicial candidates should be placed on the ballot without any reference to the candidate’s party 22 At the time, judges were appointed to fill vacancies until the Gubernatorial Election subsequent to their appointment, a quadrennial basis, with judges serving pre-election terms ranging from “a few days to almost four years” which the Commission felt was “too long if the judges are to hold office ultimately by election.” Interim Report of the Bond Commission at 5; Final Report of the Bond Commission at 8. In its interim report, the Commission recommended that the appointed judges stand for election at the following election for members of the General Assembly, which occurred every two years—a biennial basis.

Id. 19 affiliation. 23 Id. In the final report, the Bond Commission skirted Governor O’Conor’s agenda of eliminating judicial elections by reporting:24 The members of the commission have not overlooked the advantages of appointment alone as a method of selecting judges: many, perhaps a majority, thought that in Maryland, as in some other states and in the federal jurisdiction, that method might procure the best judges in the long run, but they also felt that the people of the state would prefer to have the ultimate power of election, and the effort has been made to retain the opportunity for this. Report of the Commission on the Judiciary Article of the Constitution of Maryland, October 21, 1942. In 1943, as a result of the Bond Commission’s deliberations and recommendations, the General Assembly enacted what is commonly referred to as the Bond Amendment, which was ratified by the electorate in November 1946. 1943 Md. Laws ch. 772; Reed v. McKeldin, 207 Md. 553 , 558–59 (1955).

Among other things, the amendment modified Article IV, section five of the Constitution of Maryland to provide the following: Upon every occurrence or recurrence of a vacancy through death, resignation, removal, disqualification by reason of age or otherwise, or expiration of the term of fifteen years of any judge, or creation of the office of any judge, or in any other way, the Governor shall appoint a person duly 23 The Bond Commission fully endorsed the concept in the statute that had been introduced by Delegate Melnicove through H.B. 800 and they advocated that this provision be retained, despite any other modifications to the electoral process recommended by the Commission. 1941 Md. Laws ch. 703; see also Interim Report of the Bond Commission at 4. As evidence of this, the Bond Commission recommended that this provision be incorporated into art. IV, § 5 of the Maryland Constitution. However, this provision was cut from the final version of the Bond Amendment but remained part of the statutory election code.

See Bond Commission’s Draft Bill of Proposed Amendments at 56–57. 24 The elimination of contested elections for appellate judges was not adopted at that time but was accomplished by constitutional amendment in 1976. See 1976 Md. Laws ch. 542. 20 qualified to fill said office, who shall hold the same until the election and qualification of his successor. His successor shall be elected at the first biennial general election for Representatives in Congress after the expiration of the term of fifteen years (if the vacancy occurred in that way) or the first such general election after one year after the occurrence of the vacancy in any other way than through expiration of such term. Except in case of reappointment of a judge upon expiration of his term of fifteen years, no person shall be appointed who will become disqualified by reason of age and thereby unable to continue to hold office until the prescribed time when his successor would have been elected. 1943 Md. Laws ch. 772.25 Over seventy years later, the reforms of the mid-20th century are the core features of circuit court judge elections today.

The Melnicove bill provided a façade of nonpartisanship in the layout of the judicial ballot. The opinion by Attorney General Walsh to allow cross-filing in the primary elections of the two principal parties provided a tenor of bipartisanship. But the inherent partisanship discussed by this Court in Suessmann remains because the selection of circuit court judicial candidates is vested in the exclusive domain of the two principal parties, i.e. the Democratic and Republican parties of Maryland. Contemporary Statutory Regulation of Elections, this Court’s Decisions in Green Party, Suessmann, and the General Assembly’s Response The overarching purpose of the Election Law Article is to ensure fairness within the elective process and to create an even playing field for candidates, voters, political parties, and others involved with the conduct of elections.

See EL § 1-201. The net effect of the 25 Article IV § 5 was further amended in 1945 which made little substantive change. 1945 Md. Laws ch. 703. This amendment was ratified by the electorate in November of 1944. 21 reform efforts in the mid-20th century created a system of judicial elections that could—at best—be characterized as an imperfect hybrid. As shown by the short history described above, the issue of judicial independence versus partisan elections has been hotly debated since the 1851 Constitution.

Today, it is a perennial issue before the General Assembly with various bills introduced to eliminate the election of circuit court judges or to modify the current judicial electoral process. Two recent cases before this Court challenged this electoral process for circuit court judges. In Maryland Green Party v. Maryland Bd. of Elections (“Green Party”), this Court was asked to assess the constitutionality of certain provisions of the Election Law Article, as applied to non-principal parties. 377 Md. 127 , 155–56 (2003). Prior to this case, candidates belonging to non-principal political parties and those unaffiliated with any political party were required to achieve nomination through petition signed by a certain number of citizens. 1896 Md. Laws ch. 202; see also Iverson v. Jones, Sec’y of State, 171 Md. 649, 651-652 .

In challenging this provision, the Green Party of Maryland averred that the statutory requirement that mandated a petition process to nominate candidates, in conjunction with the initial petition requirement to form a new political party, was unconstitutional. Id. at 153. Ultimately, the Court agreed and held that the double petitioning mandate in the statute violated the equal protection provision of Article 24 of Maryland’s Declaration of Rights. Id. at 156–157.

The following year, this Court reviewed a challenge by unaffiliated voters who claimed that their exclusion from voting for circuit court judges in Maryland’s primary elections was unconstitutional. Suessmann, 383 Md. at 721–22. Specifically, the Court 22 was asked to enjoin the certification of the election results in Anne Arundel County and St. Mary’s County circuit court elections because the voters of non-principal political parties and those unaffiliated with a political party were excluded from participating in primary election on March 2, 2004. Id. at 704–05.

We concluded that Maryland’s system of judicial elections as designed by the General Assembly, through utilization of party primaries, is constitutional even though the electoral process is inherently partisan. Suessmann highlights an imperfection within our judicial electoral process. As a consequence of conducting primary elections through the two principal parties, a large number of registered voters are excluded. For example, approximately twenty percent of Maryland’s registered voters were not registered with a principal party and therefore were ineligible to vote in circuit court judge elections during the 2018 primary. 26 Ultimately, the Court held that this procedure did not violate the equal protection provisions of the Maryland or Federal Constitutions.

Id. at 733. As a result of Suessmann and Green Party, the General Assembly enacted legislation aimed at remedying these deficiencies within our judicial electoral system. See 26 In 2018, there were a total of 4,018,891 registered voters within the State. Maryland State Board of Elections, Voter Registration Activity Report, November 2108.

The composition of these voters is as follows: 2,204,933 voters registered as Democrats, 1,023,148 voters registered as Republicans, 9,287 voters registered with the Green Party, 22,338 voters registered with the Libertarian Party, 726,001 voters unaffiliated with any political party, and 33,184 voters registered with other parties. Id. In sum, voters affiliating with the Green, Libertarian, other parties, and those unaffiliated with any political party totaled 790,810—nearly twenty percent of the State’s electorate. 23 2006 Md. Laws ch. 120 (S.B. 129).27 Therein, the General Assembly established that non- principal political parties may nominate candidates through their party bylaws and the filing of certificates of nomination with the State Board. Id.; EL § 5-701(3).28 This revised nomination statute allows three avenues for challengers to access the ballot, dependent upon a candidate’s party affiliation.

First, candidates nominated by a principal political party must be nominated through participation in primary elections. EL §§ 5-701(1), 8- 202(a). Candidates of non-principal political parties must be nominated in accordance with that party’s constitution or bylaws. EL § 5-701(3).

Additionally, as unchanged from earlier electoral procedure, candidates not affiliated with any political party may seek nomination by petition signed by a specific number of registered voters. 29 EL § 5-701(2). The instant appeal concerns these statutory revisions for nomination of candidates by non-principal parties as enacted by the General Assembly in 2006. 27 As referenced supra in Green Party, this Court held that the “Election Code’s two-tiered petition requirement for [non-principal] parties[,]” i.e. requiring non-principal parties to garnish 10,000 signatures to establish the party and requiring its candidate to be nominated through petition signed by a certain number of voters, was violative of the equal protection components of the Maryland Declaration of Rights. 377 Md. at 156– 157. In Suessmann, this Court entertained a challenge to the Election Code by unaffiliated voters. 383 Md. at 704 . The Court concluded that the Election Code’s exclusion of unaffiliated voters from primary elections was constitutional.

Id. at 732–733. As a result, a significant portion of the electorate became disenfranchised. 28 This is an extraordinary power granted to non-principal political parties. It allows, in this case, parties with less than one percent of the registered voters in the state to nominate judicial candidates directly to the general election and thus to bypass the primary contests. As such, it is a power of nomination to be carefully adhered to and closely guarded. 29 Prior to 2006, candidates of non-principal political parties were nominated by petition, in a similar fashion.

However, in 2006, this Court invalidated that provision. See supra at 22–23. 24 Facts Underlying the Instant Appeal On June 18, 2018, Appellant, April T. Ademiluyi filed a certificate of candidacy with the State Board seeking certification of her candidacy for the office of Judge of the Circuit Court for Prince George’s County. Along with her certificate of candidacy, was a certificate of nomination or designation from the Libertarian Party of Maryland certifying the party’s nomination of Ms. Ademiluyi. Curiously, Ms. Ademiluyi’s certificate of candidacy indicates her party affiliation as “judicial” but the certificate of nomination or designation lists her party affiliation as Democrat.

On June 28, 2018, the State Board posted Ms. Ademiluyi’s name on its website as a candidate with indication she was a candidate only in the 2018 Gubernatorial General Election. On July 19, 2018, the State Board certified the results of the primary election and posted the list of candidates for the 2018 Gubernatorial General Election on its website. The same day, attorneys for Appellees, of which none are registered members of the Libertarian Party, submitted a MPIA request to the State Board seeking Ms. Ademiluyi’s voter registration records and records related to her candidacy for judicial office. On July 24, 2018, Appellees received the documents associated with Ms. Ademiluyi’s party affiliation and candidacy from the State Board confirming that she is and had been a registered Democrat.

The following day, on July 25, 2018, Appellees brought action in the Circuit Court for Prince George’s County against Ms. Ademiluyi, the State Board, Linda H. Lamone in her capacity as State Administrator of Elections, the Libertarian Party, Robert S. Johnston, III, Chairman of the Libertarian Party, and Robert E. Glaser, Secretary of the Libertarian 25 Party. Appellees filed a petition for writ of mandamus, declaratory judgment, and preliminary and permanent injunctive relief aimed at challenging Ms. Ademiluyi’s qualification for judicial nomination as a Libertarian Party nominee. Within this action, Appellees sought to remove Ms. Ademiluyi from the general election ballot and requested injunctive relief against the Libertarian Party requiring the party to rescind its nomination of Ms. Ademiluyi. Appellees alleged that the Libertarian Party’s nomination of Ms. Ademiluyi was invalid, because she is a registered Democrat which they alleged violates the candidate qualification requirements set by the Libertarian Party’s Constitution. 30 On August 2, 2018, the clerk’s office of the circuit court issued summons and sent them by regular mail.

Appellees’ attorney testified that he received the summons on August 6, 2018. In response, Appellees sent summons to a private process server whom served Ms. Ademiluyi, the State Board, Ms. Lamone, and Mr. Glaser on August 8, 2018. Because the State Board had an incorrect address on file for Mr. Johnston, he was not served until August 10, 2018. The case was specially assigned to the Honorable E. Gregory Wells who, at that time, was a Judge of the Circuit Court for Calvert County.31 30 Although Ms. Lamone was present at the hearing, she did not make any arguments regarding Ms. Ademiluyi’s claims and deferred to the State Board to defend against the charges.

Hereafter, Ms. Lamone and the State Board of Elections will be referred to collectively as “the State Board.” 31 In March of 2019, Judge Wells was appointed and confirmed to the Court of Special Appeals of Maryland. 26 On August 15, 2018, Appellees filed a motion for a temporary restraining order and a preliminary injunction. At a hearing on the same day, the circuit court declined to rule on Appellees’ motion and scheduled a tentative hearing for the following week. Two days later, on August 17, Ms. Ademiluyi filed a motion seeking an extension of time and a rescheduling of the preliminary injunction hearing which was scheduled for August 24. In her motion, Ms.