Lamb v. Hammond

WILNER, Judge. A number of descriptive terms might be used to characterize the race between John R. Hammond and Donald E. Lamb for a seat in the House of Delegates, but “landslide” would surely not be one of them. As the case reaches this Court, Mr. Hammond appears to be the winner over Mr. Lamb by exactly one vote. That hair-thin margin of victory was realized, however, only after the Circuit Court for Anne Arundel County, on a complaint filed by Mr. Hammond, directed the county board of canvassers to count 12 absentee ballots that the board had initially rejected.

Understandably aggrieved by the court’s decision, in light of its effect, Mr. Lamb noted an appeal. We granted certiorari prior to any proceedings in the Court of Special Appeals to consider the important and delicate public issues raised in the case. I. THE FACTS Under the Constitution and laws of Maryland, the registered voters of District 30 in Anne Arundel County are entitled to elect three delegates to the House of Delegates. The law generally requires that voting take place at authorized polling stations in the district but permits certain persons — those qualified voters who may be absent from the county on election day or who, by reason of physical disability or confinement, are unable to appear at the proper polling station — to cast their votes by absentee ballot.

Md. Code Ann. art. 33, §§ 27-1, 27-2. At the close of voting in the general election of November 4,1986, the tallies from the voting machines showed that, of ²⁹⁰ the six candidates running for the House of Delegates from District 30, the top four were: John C. Astle 15,825 Michael Busch 13,475 Donald E. Lamb 12,553 John R. Hammond 12,420 Two days later, the election board began its canvass of the absentee ballots. Of the ballots so counted for District 30, Mr. Lamb received 345 votes and Mr. Hammond received 475. When those figures were added to the totals from the voting machines, Mr. Lamb remained in third place (and thus entitled to one of the three seats) by three votes — 12,898 to Mr. Hammond’s 12,895.

Learning that the board had received but declined to count 24 additional absentee ballots, Mr. Hammond filed this action in Circuit Court, contending that the board’s refusal to consider those ballots was unlawful and seeking declaratory and injunctive relief. Twelve of the ballots, it appeared, had not even been opened by the board; they were rejected because the board concluded, based on the time that the ballots were received and the postmark on the respective envelopes, that they were not timely under the requirements of Md. Code Ann. art. 33, § 27-9(c) or (d). The other 12 had been opened but rejected by reason of other deficiencies. Over Mr. Lamb’s objection, the court opened the 12 thitherto unopened envelopes and observed, in each instance, that the voter had signed an affidavit that the ballot had been “completed and mailed no later than the day before election.” On that basis, the court found those ballots to be timely and ordered the board to include them in its canvass.

The board’s rejection of the other 12 ballots was affirmed. Mr. Hammond must have received eight of the 12 additional votes, for he emerged, to the consternation of Mr. Lamb, as the apparent winner, 12,903 to 12,902. Mr. Hammond presumably accepts the court’s decision as to the ²⁹¹ other 12 ballots, for no cross-appeal has been noted. We are concerned here only with the 12 ballots that the court directed the board to canvass.

Mr. Lamb argues first, as he did below, that, by reason of Md. Decl. of Rts., art. 8, providing for the separation of legislative, executive, and judicial powers, and Md. Const., art. Ill, § 19, making the House of Delegates the judge of the qualifications and elections of its members, the House of Delegates is the only body competent to resolve this controversy and that the courts have no “jurisdiction” in the matter. Any decision this Court might render, he urges, would be merely advisory to the House of Delegates and thus non-judicial in nature. On the merits of the question, he contends that the Circuit Court erred in directing the board to include the 12 disputed ballots.

II

JURISDICTION — JUSTICIABILITY A. Introduction Jurisdiction in this case was asserted under Md. Code Ann. art. 33, § 27-10, which is part of subtitle 27 of the election code dealing with absentee voting. Subsections (a) and (c) of § 27-10 provide, respectively, that contests “concerning ... the validity of any ballot under this subtitle shall be decided by the board [of canvassers] having jurisdiction of the matter” and that “[a]ny candidate or absentee voter aggrieved by any decision or action of such board shall have the right of appeal to the circuit court for the county to review such decision or action, and jurisdiction to hear and determine such appeals is hereby conferred upon said courts." (Emphasis added.) As § 27-3 of art. 33 declares subtitle 27 applicable to “elections for all candidates ... at any election held in any year,” other than certain municipal elections, it is apparent that § 27-10 was intended to apply as well to elections for all such candidates. That includes, of course, elections for delegates to the House of Delegates. The argument advanced by Mr. Lamb is that the jurisdiction “allegedly conferred” on the Circuit Court by § 27-10, ²⁹² or presumably by any other law, was “in derogation” of art.

Ill, § 19 of the State Constitution and art. 8 of the Md. Decl. of Rts., and is therefore nugatory. The thesis, in other words, is not that the court has sought to aggrandize to itself or to usurp on its own any right or power committed exclusively to the legislative branch, but rather that the legislative branch was not competent to confer on the courts the jurisdiction it so plainly and unambiguously purported to confer. B. Articulation Of The Issue Although when dealing with provisions such as art. 8 or art. Ill, § 19 courts, including this Court, have often spoken in terms of their “jurisdiction,” the issue is not really one of jurisdiction in the traditional sense of that concept, but more one of justiciability.

The circuit courts have long been vested with a limited jurisdiction to review the actions of administrative officials, including election officials, to determine whether those officials have exceeded the authority delegated to them, and, if so, to direct that they act in conformance with the law. See, for example, Hammond v. Love, 187 Md. 138, 144 , 49 A.2d 75 (1946), where we observed: “In Hecht v. Crook, supra, 184 Md. [271], 280, 281, 40 A.2d [673], 677, this Court, by Judge Henderson, said: ‘Courts have the inherent power, through the writ of mandamus, by injunction, or otherwise, to correct abuses of discretion and arbitrary, illegal, capricious or unreasonable acts; but in exercising that power care must be taken not to interfere with the legislative prerogative, or with the exercise of sound administrative discretion, where discretion is clearly conferred.’ The election laws do not purport to make conclusive any decisions of supervisors misconstruing the law or their own powers. Decisions contrary to law or unsupported by substantial evidence are not within the exercise of sound administrative discretion and of the legislative prerogative, but are arbitrary and illegal acts.” ²⁹³ (Emphasis added.) See also Mahoney v. Sup. of Elections, 205 Md. 325, 336 , 108 A.2d 143 (1954); Criminal Inj. Comp.

Bd. v. Gould, 273 Md. 486, 500-01 , 331 A.2d 55 (1975); and cf. McNulty v. Board of Elections, 245 Md. 1, 8 , 224 A.2d 844 (1966). The issue raised by both art. 8 and art. Ill, § 19 is one of separation of powers, and, as Chief Justice Warren pointed out for the Supreme Court in Powell v. McCormack, 395 U.S. 486, 512 , 89 S.Ct. 1944, 1959 , 23 L.Ed.2d 491 (1969), “the doctrine of separation of powers is more properly considered in determining whether the case is ‘justiciable.’ ” By that is meant, first, “whether the claim presented and the relief sought are of the type which admit of judicial resolution,” and, second, whether the structure of the government (in this instance, the State government) “renders the issue presented a ‘political question’ — that is, a question which is not justiciable in [State] court because of the separation of powers provided by the Constitution.” Id., 516-17 , 89 S.Ct. 1961 -62. In judging the first element, according to Chief Justice Warren’s analysis, the court must determine “whether ‘the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded.’ ” Id., 517, 89 S.Ct. 1961 , quoting from Baker v. Carr, 369 U.S. 186, 198 , 82 S.Ct. 691, 700 , 7 L.Ed.2d 663 (1962).

The second element, again taken from Baker v. Carr, involves whether there is “ ‘a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrass ²⁹⁴ ment from multifarious pronouncements by various departments on one question.’ ” Id., 395 U.S. 518 -19, 89 S.Ct. 1962 -63. That, we think, is the proper framework within which to consider the Constitutional issue. C. Constitutional History Art. Ill, § 19 has its roots in the House of Commons. A version of it was included in the first (1776) Constitution of Maryland and in the initial Constitutions of several of the other original States. 1 It is worth noting, historically, that, despite the provision for separation of powers in the accompanying Declaration of Rights, the government created by the 1776 Maryland Constitution was, in many respects, a parliamentary one.

Only the House of Delegates was popularly elected. The Senate was elected indirectly by electors; the Governor was chosen, for a one-year term, by joint ballot of the two Houses, and he could not continue in office more than three successive years. The Governor had no veto power over legislation but was directed to sign bills enacted by the Legislature, and he was able to exercise the few Executive powers given him only with the advice and consent of a Council of five people, who were also chosen by the Legislature. Thus it was that this Court, in 1829, was impelled to conclude that “[t]he legislative department is nearest to the source of power, and is manifestly the predominant branch of the government.” Crane v. Meginnis, 1 G. & J. 463, 472 , 19 Am.Dec. 237 (1829).

It is certainly consistent with that structure of government and the evident fear of encroachment, so recently experienced, upon the independence of the Legislature for ²⁹⁵ the 1776 Constitution to have contained the unqualified statements “[t]hat the house of delegates shall judge of the elections and qualifications of delegates” (§ 9) and “[t]hat the Senate shall judge of the elections and qualifications of senators” (§ 21). By 1851, although still insistent that the Legislature remain a strong and independent branch of government, the people had become less enamored with its being the “predominant” branch. The Constitution had been amended in 1837 to abolish the five-member Council and provide for the direct popular election of the Governor, and in the 1850-51 Convention a number of significant restrictions were placed on the Legislature’s powers and prerogatives. 2 Perhaps in keeping with that sentiment, the Convention also qualified the erstwhile unfettered power of the legislative houses to judge the elections and qualifications of their members. Art. Ill, § 12 of that Constitution provided that “[e]ach House shall be judge of the qualifications and elections of its members, subject to the laws of the State ” (emphasis added), and art.

X, § 6 authorized the Legislature “to regulate by law all matters which relate to the judges, time, place, and manner of holding elections in this State, and of making returns thereof.” The Convention debates and proceedings shed little light on the ultimate source of this qualifying language, although it is clear that the qualification was not a mere afterthought. The initial proposal by the Committee on the Legislative Department was that each House “shall be judge of the qualifications, elections and returns of its members, but a contested election shall be determined in such manner as shall be directed by law.” Proceedings of the Maryland Constitutional Convention (1850), p. 219 (emphasis added). During consideration of the Committee Report, Delegate Dorsey (who, coincidentally, was the incumbent Chief Judge of this Court) successfully moved to ²⁹⁶ amend the proposal to provide that a contested election “shall be determined by the House in which such contests may arise in such manner as shall be directed by law.” Id., p. 298 (emphasis added). Both the Dorsey language and the authority to judge the “returns” of their members were ultimately stripped out of the provision, although there is no clear indication in either the proceedings or the debates as to how, when, or why that was done.

It appears to have been done by the Committee on Revision, which, like many style committees, often indulges in substance; but, however it was done, the Constitution emerged, with the approval of the Convention, without that language. The final language in art. Ill, § 12 of the 1851 Constitution was carried over intact in the 1864 Constitution. See Md. Const.

(1864), art. Ill, § 18. In 1867, without recorded debate, the qualifying language was again retained, though in somewhat modified form. It read then, as it reads now, that “[e]ach House shall be judge of the qualifications and elections of its members, as prescribed by the Constitution and Laws of the State____” (Emphasis added.) The qualifying language and deletion of the power to judge the “returns” obviously was intended to have some meaning.

The qualifying language was not in the 1776 Constitution, and it is not in the Federal counterpart (U.S. Const., art. I, § 5, cl. 1). It must be read in conjunction with other parts of the Constitution, including art. I, § 2, requiring the General Assembly to enact laws for the registration of voters; art.

I, § 7, directing it to pass laws “necessary for the preservation of the purity of Elections”; art. I, § 8, requiring it to “make provisions for all cases of contested elections of any of the officers, not herein provided for”; and art. I, § 3, authorizing it “to provide by suitable enactment for voting by qualified voters of the State of Maryland who are absent at the time of any election in which they are entitled to vote and for voting by other qualified voters who are unable to vote personally and for the manner in which and the time ²⁹⁷ and place at which such absent voters may vote, and for the canvass and return of their votes.” 3 Clearly, the framers had in mind that the Legislature would enact laws governing all phases of the conduct of elections, including elections for Senate and House of Delegates, and, in distinction to the then-current Federal view, 4 they determined that any exercise of the prerogatives accorded the respective Houses by art. Ill, § 19 be “as prescribed” by the Constitution and those laws.

It is evident, then, that, although the ultimate power to judge the elections and qualifications of its members continues to reside in the Senate and House of Delegates, respectively, the exercise of that power is, to some extent, constrained by law. The implication of that will become apparent as we consider our earlier pronouncements in this sensitive area. D. Maryland Precedent Our first immersion into this troubling eddy was in Covington v. Buffett, 90 Md. 569 , 45 A. 204 (1900). Mr. ²⁹⁸ Covington brought a mandamus action, alleging that the incumbent State Senator for Talbot County, who had been elected for a four-year term in 1897, had accepted a Federal office and left the county, that he had thereupon become disqualified as a State Senator, that a vacancy therefore existed in that office, that Covington had been nominated by the Democratic party for the office, and that the county election board had refused to place his name on the ballot in the general election of 1899.

The Circuit Court denied the writ and we affirmed. We concluded that, under the “qualifications” provision of art. Ill, § 19, the only tribunal competent to determine whether a vacancy existed was the Maryland Senate and that, unless a vacancy existed, no election could be held for the purpose of choosing a successor. Thus, our ultimate conclusion, expressed at 579, 45 A. 204 , was that “[t]he Courts are without jurisdiction to compel the appellees to place the name of the appellant on the official ballot, until the tribunal having the exclusive authority under the Constitution to decide whether a vacancy exists passes upon that question.” 5 We confirmed that view in Bowling v. Weakley, 181 Md. 496 , 30 A.2d 791 (1943), which raised an almost identical question.

The next two cases to reach this Court after Covington v. Buffett involved an issue closer in point to that now before us. In Price v. Ashburn, 122 Md. 514 , 89 A. 410 (1914), a candidate for State Senate from Worcester County sought mandamus to compel the county board of canvassers to ²⁹⁹ canvass certain votes from the 8th Election District of that county. Although the returns and tally sheets from that district were sent to the board in accordance with the election laws, two of the judges and one of the clerks refused to sign them, stating, in a separate document, their belief that there was “illegal voting.” In the absence of the three signatures, the board refused to canvass the votes. The Circuit Court issued the writ and we affirmed.

We concluded that the election judges and the clerk had acted in accordance with the law in making their return to the board and that their refusal to sign the return and tally sheets did not invalidate those documents. We declared further, at 524, 89 A. 410 : “It has been repeatedly held, that the duties of canvassing officers are purely ministerial and under the facts of this case, the canvassers could only canvass and declare the result as shown by the returns.” Continuing at 525, 89 A. 410 , we said: “Every sound principle of legal construction, we think, requires us to hold that the canvassing board in this case, had no sufficient reason to justify them in refusing to canvass, and to reject the returns as made, and as was done in this case. Any other construction would lead to endless contests and controversies. It would open the door and put in the power of the judges of election to throw out the returns from any election district, defeat the will of the majority and secure the certificate of election for a candidate who had not received a majority of the votes in the county.

The Legislature never could have intended to confer such a power as this upon the judges and clerks of an election.” We recognized that the issue before us was a narrow one of compelling ministerial officials to do their job and act in conformance with the law. The canvassers were simply to count the votes duly returned to them and not make judgments as to whether there was illegal voting. Those judgments, we acknowledged, were committed to the State Senate: ³⁰⁰ “The Senate of Maryland, itself, under section 19, Article 3, of the Constitution, is the tribunal which has the sole power to decide and judge of the qualifications of its members, to the exclusion of every other tribunal. It is made the final and exclusive judge of all questions whether of law or of fact respecting such election returns or qualifications, so far or as they are involved in the determination of the right of any person to be a member thereof.

We express no opinion, and disclaim all intention to investigate the question of the title to the office of senator in this case. Covington v. Buffett, 90 Md. 578 [ 45 A. 204 ].” Id., 525, 89 Á. 410. 6 Canvassers of Election v. Noll, 127 Md. 296 , 96 A. 452 (1915), presented a similar issue, although it involved an ³⁰¹ election for court clerk rather than legislator and thus implicated art. IV, § 12 of the Constitution rather than art. Ill, § 19. 7 The contest was between Noll and O’Malley; O’Malley was declared the winner by 47 votes.

In a mandamus action, Noll complained that the board of canvassers had improperly rejected the returns from one precinct in the 2d election district showing a 45-vote plurality for Noll, and that it had improperly counted three votes for O’Malley in the 6th election district, thereby reversing what should have been Noll’s one-vote victory. The board defended its rejection of the 2d district votes on the basis of its belief that there had been tampering with the ballot boxes; as to the 6th district, the board observed on one of the two tally sheets three marks which it concluded represented valid votes that had not been counted or certified by the election judges. We recognized the Constitutional issue at the outset and disposed of it with this comment, at 299, 96 A. 452 : “A contest over an election to this office must, of course, be made, if at all, before the House of Delegates, as provided by section 12, Article 4 of the Constitution, but that does not affect the power of the Court to require the Board of Canvassers to correct errors, if any, as provided for in section 86 of Article 33 of the Code.” (Emphasis added.) On the merits of the complaint, we followed our holding in Price v. Ashburn that canvassers are ministerial officials who are obliged to “canvass and declare the result as shown by the returns,” and thus concluded they had no right or authority to reject ballots duly returned to them. ³⁰² 127 Md. at 300-01 , 96 A. 452 . The condition of the ballot boxes “was, under the statute, of no more concern to the canvassers while acting in that capacity, than was the condition of any election booth which might be returned.” The same principle applied with respect to the returns from the 6th district.

The canvassers had no authority to disregard the certificates of the election judges and count more votes than were certified, especially when the three extra marks were on only one of the two tally sheets. Finally, just four years ago, we touched on the issue again in Duffy v. Conaway, 295 Md. 242 , 455 A.2d 955 (1983). The case arose out of the election for register of wills in Baltimore City; the loser, Duffy, sought, in effect, to disqualify the winner, Conaway, on the ground that Conaway had violated the Corrupt Practices Act. That Act, among other remedies, authorized a court proceeding to determine whether the successful candidate had engaged in unlawful conduct.

The law made clear, however, that the court had no authority, in cases involving registers and certain other Constitutional officers, to declare the election void; the court was directed simply to transmit its findings to the State election board, which, in turn, would send them to the official or body Constitutionally empowered to decide the contest. We found that scheme tantamount to having the courts issue merely advisory opinions which, we concluded, represented a non-judicial function barred by the separation of powers provisions in Md. Decl. of Rts., art. 8. In a concluding footnote at 63, 455 A.2d 955 , we disclaimed any implication that the law would be constitutional “if amended to authorize a court to decide the controversy and void the election,” for such a provision “might still present serious constitutional problems under provisions such as Art. IV, § 12, or Art. Ill, § 19, of the Maryland Constitution which vest jurisdiction in another governmental body to judge the election and qualification of candidates for certain offices.” (Emphasis added.) ³⁰³ E.