Cabrera v. Penate

¹⁰¹ BARBERA, C.J. Claudia Natalie Cabrera, Appellant before this Court, wished to seek the nomination of the Maryland Democratic Party for the office of delegate in the June 2014 gubernatorial primary election. When Appellant tendered for filing the certificate of candidacy expressing her intention to run in the election, she was a registered member of the Republican Party, but affirmed that she was a Democrat. Cecilia R. Penate, one of the Appellees before this Court, is a registered voter in the legislative district that Appellant sought to represent. She filed a petition in the Circuit Court for Prince George’s County challenging Appellant’s candidacy.

About the same time, the Maryland State Board of Elections (the “State Board”) sent to Appellant, through counsel, a notice of its intention to exclude Appellant’s name from the primary election ballot, citing the fact that she was not affiliated with the Democratic Party. After a hearing, the Circuit Court declared Appellant’s candidacy invalid and ordered the State Board and Prince George’s County Board of Election Supervisors (the “County Board”), the other Appellees before this Court, to exclude Appellant’s name from the primary election ballot. In an order dated May 1, 2014, we affirmed the ruling of the Circuit Court. In this opinion, we explain the reasons for our conclusion that a registered member of one political party may not file a valid certificate of candidacy declaring the intent to run in the primary election of another political party.

I. Appellant tendered for filing the certificate of candidacy with the State Board, requesting that her name be placed on the ballot in the June 24, 2014, gubernatorial primary election, on February 25, 2014, the deadline to do so. She sought the nomination of the Democratic Party for the office of delegate representing District 47B, located in Prince George’s County. On the certificate of candidacy, Appellant listed her address as 2528 Metzerott Road, Adelphi, Maryland, a residence beat- ¹⁰² ed within District 47B. In fact, on February 25, 2014, Appellant resided outside of District 47B.

She intended, at some time in the future, to move to the Metzerott Road residence; she moved in March 2014. Pertinent to this appeal, on the certificate of candidacy, Appellant listed her party affiliation as “Democratic.” On the date she filed the certificate of candidacy, however, Appellant was a registered member of the Republican Party. Two days later, on February 27, 2014, Appellant filed with the State Board a voter registration application form, changing her party affiliation to Democratic. 1 On March 4, 2014, Penate, a resident and registered voter in District 47B, filed in the Circuit Court for Prince George’s County a petition challenging Appellant’s certificate of candidacy, naming Appellant, the State Board, and the County Board as respondents. Penate brought the petition, initially, pursuant to Maryland Code (2002, 2010 Repl.Vol.), § 5-305 of the Election Law Article, 2 which permits a “challenge [to] the candidate’s residency as provided in § 5-202.” Section 5-202 states that a candidate for office “must be a registered voter at an address that satisfies any residence requirement for the office that is imposed by law____” Penate asserted that Appellant did not meet the residency requirement imposed by Article III, § 9 of the Constitution of Maryland, which requires that a delegate reside in the district he or she seeks to represent for at least six months prior to the date of his or her election. ¹⁰³ On March 18, 2014, Penate amended her petition, adding a claim pursuant to § 12-202, which provides, in relevant part: (a) If no other timely and adequate remedy is provided by this article, a registered voter may seek judicial relief from any act or omission relating to an election, whether or not the election has been held, on the grounds that the act or omission: (1) is inconsistent with this article or other law applicable to the elections process; and (2) may change or has changed the outcome of the election.

Specifically, Penate argued that Appellant did not meet the party affiliation requirement of § 5-203, which provides, in relevant part: (a)(2) Unless the individual is a registered voter affiliated with the political party, an individual may not be a candidate for: (i) an office of that political party; or (ii) except as provided in subsection (b) of this section,[ 3 ] nomination by that political party. As Appellant was a registered member of the Republican Party at the time she submitted her certificate of candidacy for the Democratic Party nomination in the primary election, Penate argued, Appellant’s candidacy in that election was invalid. On March 20, 2014, the State Board Administrator sent Appellant’s counsel a “notice of proposed action,” advising that, subject to any contrary ruling by the Circuit Court in the pending litigation, the State Board would remove Appellant from the primary election ballot. The notice explained: Section 5-203(a)(2) ... requires that any individual seeking nomination by a political party to a seat in the House of Delegates must be a registered voter affiliated with that political party.

The State Board of Elections is required to ¹⁰⁴ determine whether individuals filing a certificate of candidacy meet the voter registration and party affiliation requirements of Title 5, Subtitle 2 of the Election Law Article. See EL § 5 — 301(b)(1). According to State Board records, [Appellant] was not a registered voter affiliated with the Democratic Party as of the candidate filing deadline of 9 p.m., Tuesday, February 25, 2014. The Circuit Court held a hearing on Penate’s petition on March 21, 2014.

The parties made arguments concerning whether Appellant satisfied the residency requirement, but Appellant argued, preliminarily, that Penate did not have standing to bring a challenge based on the party affiliation requirement. Appellant stated that nothing in § 5-305 provides for a challenge to party affiliation. After counsel for Penate responded by explaining that § 12-202 explicitly provides a remedy where there is no specific right to challenge a certificate of candidacy, Appellant argued that § 12-202 does not “create[] a catch-all provision.” Further, Appellant argued, there is no private right of action by which to challenge party affiliation, as, under § 5-301, it was the “responsibility” of the State Board at the time Appellant submitted her certificate of candidacy to review it for correctness before accepting it. The Circuit Court denied Appellant’s motion to dismiss the petition, concluding that Penate could seek judicial relief under § 12-202.

As to the merits of the party affiliation claim, Appellant argued that, although the deadline to file a certificate of candidacy for the 2014 gubernatorial election is much earlier in 2014 than in past election cycles, the deadline for changing party affiliation remains fixed with respect to the primary. Section 3-303 states that a voter’s request to change party affiliation will be processed “at any time that registration is open.” Under § 3-302, voter registration closes “beginning at 9 p.m. on the 21st day preceding an election.” Thus, Appellant asserted, she had until June 3, 2014 — months after the deadline to file a certificate of candidacy — to change her party affiliation to Democratic. Remarking that the party affiliation ¹⁰⁵ change statute is found in the title of the Election Law Article governing voter registration, the Circuit Court warned Appellant against confusing deadlines for voters and for candidates. In response, Appellant asserted that “[njothing in the statute distinguishes between them.” Indeed, Appellant argued, putative candidates need not satisfy all of the requirements of candidacy at the time of filing the certificate of candidacy.

Imposing such a requirement effectively would “read out” the residency deadline of Article III, § 9. The State Board and County Board agreed with Penate that the deadline for putative candidates to fulfill the requirements of candidacy is the time of filing the certificate of candidacy, not the § 3-303 deadline, for the reason that election authorities need certainty as to whom to list on ballots for accuracy review and printing/mailing purposes, among others. Under various state and federal statutes, election ballots must be certified, § 9-207, and transmitted to absentee voters, 42 U.S.C. § 1973ff-l(a)(8)(A), well before June 3. It would therefore be impracticable to permit candidates to switch party affiliation after the deadlines set by those statutes.

At the conclusion of the hearing, the Circuit Court reserved judgment on the matter of residency but ruled that Appellant’s certificate of candidacy was null and void “on the ground[] that she was not a member of the [Democratic] party at the time of the filing of the [Certificate of [Candidacy.” On March 26, 2014, the Circuit Court issued its order with an accompanying memorandum opinion. With respect to the residency requirement issue, the court ruled that Appellant fulfilled the constitutional residency requirement. 4 The court then explained more fully its decision with respect to party affiliation: Satisfaction of party affiliation is a prerequisite of the [Certificate of [Candidacy. See Md. Election Law 5-203. To hold otherwise would require turning on head the oath ¹⁰⁶ that a candidate takes in the certificate of candidacy which requires under Md. Election Law that the candidate is a registered voter affiliated with the political party. [Appellant] has not argued or cited any other provision of the law that would permit the court to excuse her late February 27, 2014 change of party affiliation to cure this defect in her certificate of candidacy.

Requirements are there, as counsel for the County Board stated, for “full, fair and effective elections”; this is one the court cannot excuse nor turn a blind eye. Clearly, at the time of her certificate of candidacy [Appellant] was not a Democrat; therefore [Appellant] did not meet the requirements of the office, delegate to the General Assembly for District 47B under Md. Election Law 5-203(2). Pursuant to § 12-203(a)(3), Appellant appealed to this Court the Circuit Court’s decision as to the party affiliation issue only. We heard oral argument on April 30, 2014, and, the following day, entered a per curiam order affirming the judgment of the Circuit Court.

We now explain our reasons for that decision, addressing in turn Appellant’s arguments regarding the actions of the Circuit Court and the State Board.

II

We review de novo the decision of the Circuit Court, insofar as it rested on the interpretation of the Election Law Article. Falls Road Cmty. Ass’n, Inc. v. Baltimore Cnty., 437 Md. 115, 134 , 85 A.3d 185 (2014) (citing Forster v. Office of the Public Defender, 426 Md. 565, 579 , 45 A.3d 180 (2012)). Standing Under § 12-202 Before this Court, Appellant first argues that the Circuit Court erred in considering Penate’s challenge brought under § 12-202, maintaining that the statute does not grant ¹⁰⁷ standing for party affiliation claims.

On its face, Appellant argues, § 12-202 does not create a remedy to address challenges to a candidate’s qualifications, but rather, only claims based on “an act or omission relating to an election,” thereby drawing a distinction between claims “regarding candidacy” and those “regarding elections themselves.” 5 Penate, naturally, takes the contrary position that § 12-202 plainly contemplates the type of challenge she raises to Appellant’s certificate of candidacy. She argues that the purpose of § 12-202 is to create a mechanism for obtaining relief where none is otherwise available, and no provision of the Election Law Article explicitly provides for a challenge to a putative candidate’s party affiliation. Penate asserts that the certification of a candidate is assuredly an act relating to an election, dismissing Appellant’s attempt to distinguish between “election-related” and “candidacy-related” claims. 6 In support of her argument that § 12-202 is the appropriate mechanism by which to bring a party affiliation challenge, Penate cites Ross v. State Board of Elections, 387 Md. 649 , 876 A.2d 692 (2005). In Ross , the losing candidate for a seat on the Baltimore City Council filed a petition in the Circuit Court for Baltimore City seeking to enjoin the City Board of Canvassers from certifying the results of the election, arguing that the winning candidate had been delinquent in filing campaign finance reports as required by § 13-304. 387 Md. at 654-56 , 876 A.2d 692 .

The winning candidate and State Board asserted that the losing candidate was barred from ¹⁰⁸ contesting the results of the election by the time limitations contained in §§ 9-209 and 12-202. Id. at 656-57, 876 A.2d 692 . The Circuit Court granted summary judgment against the losing candidate on the ground that his claim was untimely under § 9-209, which provides for a challenge to the “content and arrangement of [a] ballot” within three days of the public display of that ballot. Id. at 657, 876 A.2d 692 .

On appeal, this Court held that the Circuit Court had erroneously granted the motion for summary judgment in reliance on § 9-209. 387 Md. at 653 , 876 A.2d 692 . We determined that the errors subject to judicial review under § 9-209 “are confined to the various characteristics of the ballot, not the qualifications or lack thereof of the candidates.” Id. at 665, 876 A.2d 692 . A candidate’s ineligibility to participate in an election, we concluded, could not properly be considered in a § 9-209 challenge. Id. at 666, 876 A.2d 692 .

Rather, we stated, the losing candidate’s petition “was governed by Section 12-202 of the Election Code, which provides for ... judicial redress for an act or omission that violates the Election Law Article and has or would change the outcome of the election....” Id. at 667-68 , 876 A.2d 692 . In Ross, like here, we considered whether a claim regarding candidacy “relat[es] to” an election, and we held that it does. Just as Ross demonstrates the type of claims that may be brought under § 12-202, so, too, does Abrams v. Lamone, 398 Md. 146 , 919 A.2d 1223 (2007). In Abrams , we reviewed the grant of a motion for summary judgment in an action filed under §§ 9-209 and 12-202, seeking an order declaring that a putative candidate for Attorney General did not possess the requisite qualifications for that office. 398 Md. at 156-57 , 919 A.2d 1223 .

Noting that the Circuit Court found that the § 9-209 “ground did not apply,” id. at 159 n. 17, 919 A.2d 1223 , the plurality opinion of this Court summarized the Circuit Court’s ruling on the timeliness of the action under § 12-202. Id. at 159-60, 919 A.2d 1223 . Evidently, there was no controversy as to whether the appellant in the case had standing under § 12-202 to challenge the candidate’s qualifications. ¹⁰⁹ Our cases thus show that § 12-202 is the mechanism for challenging the qualifications of a candidate seeking election. Moreover, it strains credulity to entertain the argument that the inclusion of a candidate on an election ballot is not “relating to an election.” To the extent it was not previously clear, we hold that § 12-202 permits the type of claim Penate brought in the instant case: a challenge to the qualifications of a putative candidate.

The Circuit Court did not err in considering Penate’s challenge under this statute. Appellant submits that, for another reason, there is no right on the part of an individual registered voter to challenge the qualifications of a putative candidate. She argues that the responsibility of the State Board under § 5 — 301(b) 7 to “determine whether an individual filing a certificate of candidacy meets the requirements of [the Election Law Article], including ... the voter registration and party affiliation requirements under Subtitle 2 of this title,” functions at the exclusion of a private right of action. Appellant explains what she perceives to be the logic of this scheme: the State Board, which maintains voter registration records, is in the best position to verify a candidate’s party affiliation; the same is not true for verifying residency, and, accordingly, the Election Law Article provides for individuals to bring residency challenges under § 5-305.

Appellant misinterprets the charge of §§ 5 — 301(b) and 5-304(e). The State Board’s “responsibility” does not preclude the existence of a private right of action. This proposition is borne out by our past cases, in which individuals challenged candidate qualifications the State Board had an independent obligation to verify. Ross provides an example.

We did not decide in that case whether there was a private cause of action under § 12-202 because we had concluded that Ross’s claim was barred by the doctrine of laches, yet, in stating that the appellant’s claim was governed by § 12-202, we suggested that a private cause of action exists for challenging candidacy ¹¹⁰ based on alleged violations of the campaign finance reporting requirements of the Election Law Article. 387 Md. at 667-68 , 876 A.2d 692 . We conclude here that the function of an elections board to determine whether a putative candidate fulfills the requirements of the office he or she seeks does not bar an individual registered voter from bringing a claim pursuant to § 12-202. It is important to specify the precise “act or omission relating to an election” under consideration here. Penate initially filed her petition pursuant to § 5-305, which permits an individual to “challenge the candidate’s residency.” She cast her amended petition in the language of § 5-305, although, of course, she brought that challenge pursuant to § 12-202: “[Penate] hereby files the instant petition challenging the ... political affiliation identified on the [c]ertificate of [c]andidacy of [Appellant].... ” She asked the Circuit Court to “declare[] invalid” Appellant’s certificate of candidacy.

We infer, then, that the “act or omission relating to an election” from which Penate sought judicial relief was the filing of the certificate of candidacy, not any act on the part of the State Board or County Board. This falls within the ambit of § 12-202. 8 Stating a Claim Under § 12-202 Appellant further argues that, even assuming that § 12-202 is the appropriate mechanism for bringing a party affiliation claim, in this case, Penate did not state or prove a ¹¹¹ cause of action under the statute. Appellant contends that, under Suessmann v. Lamone, 383 Md. 697, 714 , 862 A.2d 1 (2004), the following four