Lamone v. Capozzi

BELL, C.J. This is the second of two cases involving early voting in Maryland. In Roskelly v. Lamone, 396 Md. 27 , 912 A.2d 658 (2006), this Court considered a petition to refer Senate Bill 478 (2005) , the act, see Chapter 5, Laws of Maryland 2006, establishing early voting in Maryland, to the voters for ratification. Concluding that the appellants, the proponents of the referendum, had been advised of the determination by the State Administrator of Elections that their petition was deficient because it had not been filed timely, but did not timely seek judicial review, we affirmed the judgment of the Circuit Court for Anne Arundel County, which had dismissed their action. 396 Md. at 47 , 912 A.2d at 670 . The early voting scheme was substantially amended during the 2006 session of the General Assembly by House Bill 1368 (2006) , Chapter 61, Laws of Maryland 2006.

Marirose Joan Capozzi, Bettye B. Speed, and Charles W. Carter, the appellees herein, have challenged the constitutionality of the act 1 . In the instant case, we address the constitutionality of early voting, probing whether the acts establishing the process are inconsistent with, and, thus, in derogation of, the Maryland Constitution. A. The Maryland Constitution designates when elections in Maryland will occur. Article XV, § 7 of the Maryland Constitution provides: ⁵⁸ “ § 7.

General elections “All general elections in this State shall be held on the Tuesday next after the first Monday in the month of November, in the year in which they shall occur.” Other constitutional provisions, addressing specific elections, are consistent, e.g., Article XVII, § 2, 2 Article II, § 2, 3 and Article IV, § 3. 4 Specifically, Article XV, § 7 of the Maryland Constitution states that all elections in Maryland “shall be held on the Tuesday next after the first Monday in the month ⁵⁹ of November, in the year in which they shall occur.” Article XVII, § 2 of the Maryland Constitution states that “elections by qualified voters for State and county officers shall be held on the Tuesday next after the first Monday of November, in the year nineteen hundred and twenty-six and on the same day in every fourth year thereafter.” Article II, § 2 of the Maryland Constitution states that the “election of Governor and Lieutenant Governor, under this Constitution, shall be held on the Tuesday next after the first Monday of November.” Article IV, § 3 of the Maryland Constitution states that judges of the Circuit Courts shall be elected “at the general election to be held on the Tuesday after the first Monday in November.” Thus, historically, the general elections occur on one day, the first Tuesday after the first Monday in November, specified by Article XV, § 7 of the Maryland Constitution. 5 The Maryland Constitution also addresses, in Article I, “The Elective Franchise,” recognizing two methods of exercising it, one it prescribes expressly and the other it authorizes the General Assembly to prescribe. The first method, “by ballot,” the Maryland Constitution expressly provides for. It is contained in Article I, § 1, which defines who may vote, where he or she may vote, and the qualifications for doing so. Captioned “Elections by ballot, qualifications to vote,” it provides: “All elections shall be by ballot.

Every citizen of the United States, of the age of 18 years or upwards, who is a resident of the State as of the time for the closing of registration next preceding the election, shall be entitled to vote in the ⁶⁰ ward or election district in which he resides at all elections to be held in this State. A person once entitled to vote in any election district, shall be entitled to vote there until he shall have acquired a residence in another election district or ward in this State.” (Emphasis added). Under this provision, the ballot must be cast in-person and at the polling place in the Ward or election district in which the voter resides. 6 Because Article I, § 1 provides that a voter is entitled to vote in his residential election district or ward “until he shall have acquired a residence in another election district,” a voter who moves from one ward or election district and acquires a new residence in another may only vote in the newly acquired ward or election district. The second method of voting is by “Absentee Voting,” to address those situations when voters, for whatever reason, are unable to vote in-person, at his or her designated polling station on the designated day.

While, unlike voting “by ballot,” the Maryland Constitution itself does not mandate absentee voting, it authorizes the General Assembly to do so. Article I, § 3, entitled “Absentee Voting,” of the Maryland Constitution, provides: “The General Assembly of Maryland shall have power 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 and place at which such absent voters may vote, and for the canvass and return of their votes.” The Constitution, in addition to Article 1, § 3, also delegates to the General Assembly a significant role in the regulation of the election process. See Article III, § 49. 7 Pursuant to this ⁶¹ provision, it is empowered to enact laws to regulate “all matters” relating to elections, including election judges, their “time, place, and manner” and the manner of making election returns. The General Assembly’s authority in this area is subject to one, albeit significant, limitation: its regulation and the laws it enacts may not be “inconsistent with this Constitution;” the statutes and regulations enacted by the General Assembly to govern the exercise of the elective franchise must be consistent with the constitutional provisions that provide for the exercise of the elective franchise and which they supplement.

The General Assembly, acting pursuant to Article III, § 49, has taken seriously its responsibility to regulate all aspects of Maryland elections. The many statutes it has enacted are codified in the Election Law Article (“EL”). Maryland Code (2003, 2006 Cum.Supp.). Many of the statutes involve in-person, ballot voting, e.g.

Title 9, Subtitles 1 and 2 of the Election Article, which, inter alia, they aim to facilitate, make uniform and make more reliable. For example, EL § 9-205 and 9-206 dictate the Content and Arrangement of the words on the ballot, EL § 9-210 dictates how candidates names shall be listed on all ballots, and EL § 9-208 explains that, if there is a late change or error in the ballots, the local board shall reprint the ballot if there is enough time, or print a sufficient number of stickers to be affixed to each ballot incorporating the change or correction, taking steps also to notify all candidates of the changes. Moreover, EL § 9-101 of the Election Law Article establishes that “a voting system for voting in polling places and a voting system for absentee voting,” shall be selected and certified, and that this certified system “shall be used in all counties.” EL § 9-101(b). This voting system requires that “all voting shall be cast by ballot,” EL § 9-201(a)(l), and that “only votes cast on a ballot shall be counted.” EL § 9- ⁶² 201(a)(2).

The State Board of Elections certifies these ballots and each local board of elections prepares the ballots in accordance with the State Board of Elections’ prescription, EL § 9-202(b), such that each ballot is “easily understandable by voters,” EL § 9-203(1), and “as uniform as possible.” EL § 9-204(a). The General Assembly also has acted, pursuant to the authority given it by Article 1, § 3, to provide “by suitable enactment” for qualified voters “who are absent at the time of any election in which they are entitled to vote,” and “who are unable to vote personally,” to vote and “for the manner in which and the time and place” where they may do so. See Title 9 Subtitle 3. The right to vote absentee applies to every Maryland election.

EL § 9-301. The State Board is required to establish guidelines for the administration of absentee voting by the local boards of election, EL § 9-303, each of which is required to keep a record of absentee voting. EL § 9-302. 8 EL § 9-304 prescribes who may vote absentee. Although it now states simply, “An individual may vote by absentee ballot except to the extent preempted under an applicable federal law,” before its amendment by Chapter 6, § 1, Maryland Laws 2006, it set out a series of circumstances that comported with the dictates of Article 1, § 3.

See Maryland Code (2003, 2005 Cum.Supp.) § 9-304 of the Election Law Article. 9 Absentee ballots may be obtained from the ⁶³ local board of elections by filling out an Absentee Ballot Application. EL § 9-305(a). 10 An absentee voter may use an agent in the absentee voting process and that agent may pick up and deliver the absentee voter’s ballot, EL § 9-307, 11 or an ⁶⁴ absentee voter may use a special envelope provided by the State Board. EL § 9-310. An absentee voter may also receive assistance in marking his or ballot.

EL § 9-308. By utilizing this method of voting, a voter who is unable to vote personally on Election Day may exercise his or her elective franchise. The General Assembly, on April 9, 2005, two days before the end of the 2005 legislative session, passed Senate Bill 478, which authorized early voting in Maryland. This bill was intended to give Maryland voters a second alternative to in-person balloting, absentee balloting being the other.

The Governor vetoed the bill on May 20, 2005. Early in the next legislative session, on January 16, 2006, both houses of the General Assembly overrode the Governor’s veto, enacting Senate Bill 478, as Chapter 5, Maryland Laws 2006. See Article II, § 17(d) of the Maryland Constitution. 12 A new § 10-301.1 thus was added to the Election Law Article. That section permitted voters to vote early, eight hours each day for a five-day period beginning the Tuesday before a primary or general election through the Saturday before the election ⁶⁵ day, at sites designated by the local board of elections as early voting sites.

At least three locations were required to be established in Anne Arundel, Harford, Howard, Montgomery, Prince George’s and Baltimore Counties and in Baltimore City. During the 2006 legislative session, another bill pertaining to early voting, House Bill 1368, was introduced and passed, as emergency legislation. That bill repealed § 10-301.1 and reenacted it with amendments. As amended, § 10-301.1 extended the early voting period from eight hours to eleven hours daily and specified, either generally 13 or with particularity, 14 where early voting would take place in each county and Baltimore City.

HB 1368 was passed on March 29, 2006 and vetoed by the Governor on April 7, 2006. Both houses overrode the Governor’s veto on April 10, 2006, thus enacting HB 1368. Chapter 61, Laws of Maryland 2006. On July 16, 2006, the appellees, registered voters in Queen Anne’s County, Maryland, filed, in the Circuit Court for Queen Anne’s County, a Verified Complaint for Declaratory and Injunctive Relief 15 against the appellants, the State of Maryland, Linda Lamone, in her capacity as Administrator of the Maryland State Board of Elections, and the Maryland State Board of Elections.

They alleged in the complaint that § 10-301.1 of the Election Law Article was enacted in derogation of Article I, § 1, Article XV, § 7, and Article XVII, §§ 1 16 and ⁶⁶ 2 17 of the Maryland Constitution. In essence, the appellees complained that early voting was not authorized by any part of the Constitution, as the provisions of Article I only acknowledged two ways to vote: in-person ballot voting and absentee balloting. The case was transferred on July 28, 2006, upon motion of the appellants and pursuant to Maryland Code (1974, 2002 RepLVol., 2006 Cum.Supp.) § 6-201 of the Courts and Judicial Proceedings Article, 18 to the Circuit Court for Anne Arundel County. The appellants filed an opposition to the appellees’ ⁶⁷ Motion for Temporary Restraining Order and Preliminary Injunction, and their own motion to dismiss the complaint for failure to state a claim upon which relief may be granted.

At the hearing, the appellants argued that Article I, § 1 was not a prohibitory provision; rather, they maintain, it merely sets forth the entitlement to vote of those who meet its enumerated qualifications. Stated differently, its “goal was not to restrict voters from voting outside of their district, but to prevent the Legislature from forcing voters to travel great distances—especially in the times of horse and buggy—to exercise their franchise.” 19 Thereafter, on August 8, 2006, the Circuit Court issued its Memorandum Opinion. In the accompanying Order, it held that § 10-301.1 and the implementing legislation were unconstitutional and void. The court concluded, specifically, “the provisions in early voting that would allow some voters to cast votes in a district or ward other than the one in which they reside are inconsistent with the language of Article I, Section 1.” 20 Relying on Kemp v. Owens, 76 Md. 235, 238 , 24 A. 606, 607 (1892), in which this Court stated that “[one] cannot lawfully vote in a ward or election district in which he does not resides, even though that ward or election district be within the legislative district or county where he has residence,” and Smith v. Hackett, 129 Md. 73, 76-77 , 98 A. 140, 141 (1916), in which we noted that “[t]he only condition imposed by the ⁶⁸ Constitution as to the place where the right to vote shall be exercised is that it must be in the election district of which the voter is a resident,” the Circuit Court concluded that the Constitution entitled qualified voters to cast votes only in the election district in which they reside.

It also found that Article 1, § 1 is mandatory and cannot be waived; its instruction is not simply permissive. Accordingly, the Circuit Court rejected the appellants’ “entitlement” argument. The court reasoned that because the case involved constitutional interpretation, and “[t]he Maryland Constitution was carefully written and solemnly adopted by the Constitutional Convention of 1867, and approved by the people of the State,” Buchholtz v. Hill, 178 Md. 280, 285-286 , 13 A.2d 348, 351 (1940), it should be careful not to depart from the plain language of the instrument. Moreover, it continued, while Article III, § 49 gives the General Assembly the power to enact laws that relate to the time, place, and manner of elections, that power is specifically constrained and cannot give rise to laws that are “inconsistent with [the Maryland] Constitution.” Early voting was also found by the Circuit Court to be inconsistent with the requirement in Article XV, § 7 of the Maryland Constitution that “[a]ll general elections in this State shall be held on the Tuesday next after the first of Monday in the month of November, in the year in which they shall occur.” The court agreed with the appellees, who argued that the word “held” contemplated a specific time period, a day, when the voters cast the votes, 21 and not, as the appel ⁶⁹ lants would have it, the end of the process, i.e., “the date upon which voting is concluded and the transition to tabulating the votes begins.” The Circuit Court was not persuaded by Foster v. Love, 522 U.S. 67 , 118 S.Ct. 464 , 139 L.Ed.2d 369 (1997), which it determined to be inapposite—it only provided that the voting system utilized by a state may not produce a winner in a federal Senatorial and Representative race prior to the first Tuesday following the first Monday of November, 522 U.S. at 72 , 118 S.Ct. at 468 , 139 L.Ed.2d at 375 .

Nor did the court find the federal cases following Foster 22 helpful or persuasive, pointing out that they “all dealt -with early voting within the umbrella of absentee ballot provisions.” Finally, the Circuit Court rejected the argument that Article I, § 3, authorizing absentee voting, provided the requisite authority for early voting legislation. On the contrary, referencing § 10-301.1(A)’s express exception of “Absentee Voting” from its coverage, 23 it observed that “[a]s drafted, early voting goes far beyond the specifically authorized absentee voting language, creating a ‘no excuse’ needed category for voters ⁷⁰ who need not be absent or unable to vote personally.” That is made clear, the Circuit Court opined, by the explicit language distinguishing absentee voting provisions from the early voting provisions. 24 Accordingly, the Circuit Court enjoined the appellants from further implementing or enforcing early voting. 25 The appellants immediately noted an appeal of the judgment to this Court 26 and also filed a Petition for Certiorari, which we ⁷¹ granted. Lamone v. Capozzi, 394 Md. 307 , 905 A.2d 842 (2006). Oral argument was heard on August 25, 2006.

By Order issued on that same day, this Court affirmed the judgment of the Circuit Court. We now provide the reasons for our decision. B. This case involves constitutional interpretation. The principles that apply and their application are well settled.

We recently restated them in Roskelly v. Lamone: “As early as 1873, this Court recognized that where a ‘general rule for the construction of statutes’ exists, there ‘can be no good reason suggested why this same general principle ... should not also apply as a rule of interpretation of the Constitution.’ New Central Coal Co. v. George’s Creek Coal and Iron Co., 37 Md. 537, 557 (1873). We continue to adhere to that principle. Bienkowski v. Brooks, 386 Md. 516, 536-537 , 873 A.2d 1122, 1133-35 (2005). See Davis v. Slater, 383 Md. 599, 604 , 861 A.2d 78, 81 (2004) (‘When interpreting constitutional provisions, we generally employ the same rules of construction that are applicable to the construction of statutory language.’); Fish Market v. G.A.A., Inc., 337 Md. 1, 8 , 650 A.2d 705, 708 (1994); Luppino v. Gray, 336 Md. 194 , 204 n. 8, 647 A.2d 429 , 434 n. 8 (1994) (‘The rules governing the construction of statutes and constitutional provisions are the same’); Andrews v. Governor of Maryland, 294 Md. 285, 290 , 449 A.2d 1144, 1147 (1982) (‘in ascertaining the meaning of a constitutional provision, we are governed by the same rules of interpretation ⁷² which prevail in relation to a statute’); Brown v. Brown, 287 Md. 273, 277 , 412 A.2d 396, 398 (1980) (the same rules that are applicable to construction of statutory language are employed in interpreting constitutional verbiage); Perkins v. Eskridge, 278 Md. 619, 639 , 366 A.2d 21, 36-37 (1976) (observing that the same rules apply in constructional construction as apply in statutory construction). 396 Md. at 48 , 912 A.2d at 670-71 .

Thus, when this Court seeks to ascertain the meaning of a constitutional provision, it first will look to the “normal, plain meaning of the language,” and, if the language is clear and unambiguous, it will not look past those terms. Bienkowski v. Brooks, 386 Md. 516, 536-537 , 873 A.2d 1122, 1134-1135 (2005). See also Comptroller v. Phillips, 384 Md. 583, 591 , 865 A.2d 590, 594 (2005) (“If the plain language ... is unambiguous and is consistent with the [enactment’s] apparent purpose, we give effect to the [enactment] as it is written”); Lee v. Cline, 384 Md. 245, 256-257 , 863 A.2d 297, 304 (2004); Collins v. State, 383 Md. 684, 688 , 861 A.2d 727, 730 (2004) (“We begin with the plain language of the [enactments]”); Arundel Corp. v. Mane, 383 Md. 489, 502 , 860 A.2d 886, 894 (2004) (“If there is no ambiguity in that language [of an enactment], ... the inquiry as to legislative intent ends; we do not then need to resort to the various, and sometimes inconsistent external rules of construction”). Further, when the meaning of a word or phrase in a constitutional or statutory provision is perfectly clear, this Court will not give that word or phrase a different meaning than is plainly understood.

See, e.g., Montrose Christian School v. Walsh, 363 Md. 565, 595 , 770 A.2d 111, 129 (2001) (the “phrase ‘to perform purely religious functions’ clearly does not mean what is suggested____We decline to construe ‘purely’ as if it were ‘primarily’ or ‘some’ ”); Dodds v. Shamer, 339 Md. 540, 554 , 663 A.2d 1318, 1325 (1995) (refusing to construe a statute, specifically applicable to only four named counties, as applicable to other counties); Davis v. State, 294 Md. 370, 378 , 451 A.2d 107, 111 (1982) (declining to construe ⁷³ the phrase in a statute as petitioner requested, finding that such an action would be to re-draft the statute under the guise of construction); Mauzy v. Hornbeck, 285 Md. 84, 93 , 400 A.2d 1091, 1096 (1979) (refusing to construe the statutory phrase “all professional employees” as “only certain types of’ professional employees); Wheeler v. State, 281 Md. 593, 598 , 380 A.2d 1052, 1054 (1977), cert. denied, 435 U.S. 997 , 98 S.Ct. 1650 , 56 L.Ed.2d 86 (1978) (“We are not at liberty to bring about a different result by inserting or omitting words to make the [enactment] express an intention not evidenced in its original form”). 1. It is well settled that a State Legislature may not enact laws that are in derogation of the Constitution. See Bienkowski v. Brooks, 386 Md. at 546-547 , 873 A.2d at 1140 (“[T]he constitutional authority to implement a constitutional provision, ... does not authorize the General Assembly by statute or this Court by rule to contradict or amend the Constitution); Washabaugh v. Washabaugh, 285 Md. 393, 411 , 404 A.2d 1027, 1037 (1979) (the constitutional authority to implement Article IV, § 22, by rules does not authorize a rule which is inconsistent with § 22, as this would be a “license ... to make a substantive change in the Maryland Constitution ..., a result we do not think was contemplated by the drafters of section 22”). Indeed, Article III, § 49 of the Maryland Constitution provides: “ § 49.

Regulation of elections “The General Assembly shall have power to regulate by Law, not inconsistent with this Constitution, all matters which relate to the Judges of election, time, place and manner of holding elections in this State, and of making returns thereof.” (Emphasis added). The appellants argue that Article III, § 49 validates the General Assembly’s constitutional power to regulate the time, place, and manner of elections. They emphasize only a por ⁷⁴ tion of § 49, that portion that gives the General Assembly “power to regulate ... all matters which relate to the ... time, place and manner of holding elections in this State.” (Emphasis added). This is confirmed, they assert, by the language of Article I, § 4, cl. 1 of the United States Constitution (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof...”) and the absentee voting provision, Article I, § 3, of the Maryland Constitution.

In addition, the appellants rely on County Council for Montgomery County v. Montgomery Ass’n, Inc., 274 Md. 52 , 333 A.2d 596 (1975). That case, they say, makes clear that the Framers intended that the General Assembly should regulate elections, 274 Md. at 60 , 333 A.2d at 600 , has “pervasive control” over elections, 274 Md. at 62 , 333 A.2d at 602 , and is “obligated” to enact a comprehensive plan for the conduct of elections. 274 Md. at 64 , 333 A.2d at 603 . In County Council, Montgomery County enacted three ordinances, designed to regulate the campaign finance practices of candidates for County Executive and the County Council in that county, that provided for the reporting of campaign contributions, a ban on corporate contributions, a limit on contributions from individuals and from candidates to their own campaigns, and a limit on campaign spending. The respondents requested a declaratory judgment that the three ordinances were invalid and sought an injunction prohibiting prosecutions under the ordinances, alleging that the county had not been delegated authority by the General Assembly to enact the ordinances, that the field of regulation of election practices had been completely occupied by the General Assembly in enacting the State Election Code, that the ordinances conflicted with specific provisions of the State Election Code, and that enactment of the ordinances violated the Federal Constitution. 274 Md. at 54 , 333 A.2d at 597 .

This Court held that election laws enacted by Montgomery County were preempted by state elections laws, and thus, were void. 274 Md. at 64 , 333 A.2d at 603 . While it is true that this Court, in County Council, made the points attributed ⁷⁵ to it by the appellants, County Council does not stand for the proposition that the General Assembly’s role in the regulation of elections is so pervasive or its obligation so great as to enable it to enact laws in derogation of the Maryland Constitution. Nothing in County Council suggests that to be the case and the facts of the case do not support that proposition. In fact, to make this argument, the appellants must emphasize, as we have seen them do, just a part of Article III, § 49, and simply disregard the critical provision that the laws passed to regulate elections “not [be] inconsistent with this Constitution.” Stressing that “elections ought to be free and frequent; and every citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage,” quoting Md. Decl.

Rights., Art. 7, the appellants argue that early voting would facilitate the ability of qualified voters to exercise their franchise, and, in that way, would safeguard the rights of those voters to participate in our democratic system. They rely on Harper v. Virginia State Board of Elections, 383 U.S. 663, 667 , 86 S.Ct. 1079, 1082 , 16 L.Ed.2d 169, 172 (1966), for the proposition that “the political franchise of voting” is a fundamental right that preserves all other basic civil rights, Kemp v. Owens, 76 Md. at 241 , 24 A. at 608 , for the proposition that the elective franchise is the “highest right of the citizen, and the spirit of our institutions requires that every opportunity should be afforded for its fair and free exercise,” and the Maryland Declaration of Rights for the proposition that “the right of the People to participate in the Legislature is the best security of liberty and the foundation of all free Government.” Md. Decl. Rights, Art. 7. They also rely on Norris v. Mayor & City Council of Baltimore, 172 Md. 667 , 192 A. 531 (1937).

In Norris , opponents of the use of voting machines argued that their use conflicted with Article I, § 1, which provided that “[a]ll elections shall be held by ballot.” This Court rejected the argument that the term “ballot” could not include voting machines, as they did not exist in 1867. We reasoned: ⁷⁶ “while the principles of the Constitution are unchangeable, in interpreting the language by which they are expressed it will be given a meaning which will permit the application of those principles to changes in the economic, social, and political life of the people, which the framers did not and could not foresee.” 172 Md. at 675-676 , 192 A. at 535 . The appellants urge that, in light of Norris , this Court should reject the “cramped construction of the relevant constitutional provisions” that was employed by the Circuit Court. Norris is inapposite.

The case sub judice does not involve, as Norris did, an improvement in technology or social progress that would, in effect, replace an instrument or aspect of the election process, while leaving the overall scheme intact. Early voting, instead, fundamentally changes the very principles established in the Constitution. Moreover, while we do appreciate both the right of voters to exercise their franchise and the General Assembly’s attempts to make the exercise of that right more convenient and easier, we note that the importance of such a right, nevertheless, does not give the General Assembly carte blanche authority to enact laws and implement procedures that are in derogation of the Constitution. 2. That EL § 10-301.1 authorizes voters to cast ballots “beginning the Tuesday before a primary or general election through the Saturday before the election,” is clearly inconsistent with the words of, and the plain meaning of Article XV, § 7 and the other constitutional provisions that designate the “Tuesday next after the first Monday of November,” as the date of the general election.

The appellants argue, nevertheless, that there is no inconsistency between the constitutional provisions and the early voting statute. This is so, they submit, because an “election” is not singularly the “casting of a ballot,” as the Circuit Court held, but, rather, it is, as articulated by Foster v. Love, 522 U.S. 67, 71 , 118 S.Ct. 464, 467 , 139 L.Ed.2d 369, 374 (1997), “the combined actions of ⁷⁷ voters and officials meant to make a final selection of an office holder.” In Foster , Louisiana voters brought an action against state officials, alleging that the state’s “open primary” system was in conflict with 2 U.S.C. §§ 1 27 and 7. 28 522 U.S. at 68-69 , 118 S.Ct. at 466 , 139 L.Ed.2d at 373 . Louisiana used an “open primary” system, enacted in 1975, in which “all candidates, regardless of party, appear on the same ballot, and all voters, with like disregard of party, are entitled to vote.” 522 U.S. at 70 , 118 S.Ct. at 467 , 139 L.Ed.2d at 374 . If one candidate won a majority of the votes during that early voting period, he was “elected,” “and no further act is done on federal election day to fill the office in question.” 522 U.S. at 70 , 118 S.Ct. at 467 , 139 L.Ed.2d at 374 .

The Supreme Court agreed with the challengers that this system conflicted with the federal statutes creating a uniform federal election day. In so holding, it opined that the federal statutes, in reference to “elections,” plainly meant the “combined actions of voters and officials meant to make a final selection of an officeholder.” 522 U.S. at 71 , 118 S.Ct. at 467 , 139 L.Ed.2d at 374 . By holding the “election” before the federally mandated election day, Louisiana’s system was in conflict with federal statutes. 522 U.S. at 72 , 118 S.Ct. at 468 , 139 L.Ed.2d at 375 . The Supreme Court rejected the ⁷⁸ state’s rationale that the “open primary” system did not effect the “timing” of the federal election day, but only the “manner” of election. 522 U.S. at 72 , 118 S.Ct. at 468 , 139 L.Ed.2d at 375 .

Thus, while, to be sure, Foster defines an “election” as the combined action of voters and election officials, the context in which it was applied is instructive. That definition was employed to ensure that federal offices were not filled by elections finalized before the federal election day. Foster , therefore, contrary to the appellants’ contentions, does not authorize voting on any other than the day specified for an election. Foster , as the appellants point out, has been interpreted by two federal Courts of Appeal, Voting Integrity Project, Inc. v. Bomer, 199 F.3d 773 (5th Cir.2000), and Millsaps v. Thompson, 259 F.3d 535 (6th Cir.2001), to permit early voting.

Neither of these cases, however, addressed whether the early voting scheme at issue was constitutional under the applicable state constitution. The issue in each case was whether the early voting scheme was preempted by federal law. In Bomer , the United States Court of Appeals for the Fifth Circuit held that Texas’ Early Voting statutes did not directly conflict with the federal election statutes establishing a single election day and, therefore, were not preempted. 199 F.3d at 777 . The Voting Integrity Project (“VTP”) filed a declaratory judgment action against Elton Bomer, the Texas Secretary of State (“State”), challenging Tex.

Elec.Code §§ 81.001, 29 82.005, 30 and 85.001 31 (“the Texas Early Voting statutes”). ⁷⁹ These statutes authorized voting to begin in Texas federal elections seventeen days before the federal election day; however, they did not allow the election results to be released until the votes were tabulated on federal election day. 199 F.3d at 774 . Unlike traditional “absentee” voting, the Texas scheme did not require the voter to give any reason to vote early. 199 F.3d at 774 . Arguing that “election” is synonymous with voting, and as such, voting is confined to a single day, the VIP claimed that these statutes violated 2 U.S.C. §§ 1 , 7 and 3 U.S.C. § l, 32 which, collectively, established the Tuesday after the first Monday in November as the day for the election of federal representatives, senators, and presidential electors throughout the United States. The Fifth Circuit Court of Appeals, noting that “a state’s discretion and flexibility in establishing the time, place and manner of electing its federal representatives has only one limitation: the state system cannot directly conflict with feder ⁸⁰ al election laws on the subject,” 199 F.3d at 775 , found no conflict.

In doing so, it rejected the VIP’s argument that, under the statutory language, the entire election, including all voting, must occur on one day. The court concluded: “Allowing some voters to east votes before election day does not contravene the federal election statutes because the final selection is not made before the federal election day.” 199 F.3d at 776 . The court relied on Foster for the meaning of the term “election,” “the combined actions of voters and officials meant to make a final selection of an officeholder.” 199 F.3d at 775 , citing Foster, 522 U.S. at 71 , 118 S.Ct. at 467 , 139 L.Ed.2d at 374 . It also pointed out that Foster did not prohibit early voting, only that elections “must not be ‘consummated’ before federal election day,” 199 F.3d at 775 , citing Foster, 522 U.S. at 72 n. 4, 118 S.Ct. at 468 n. 4, 139 L.Ed.2d. at 375 n. 4.

Under the Texas scheme, the court held, the election was not consummated early. Also critical to the court’s reasoning was the effect of a contrary holding on absentee voting. Conceding that, if the early voting statutes at issue were held to be inconsistent with federal law, then absentee balloting would be as well, a result that Congress did not contemplate or seek to effect, the court opined: “[W]e cannot logically hold that Texas’ system of unrestricted advanced voting violates federal law without also finding that absentee balloting-which occurs in every state-violates federal law. “We do not believe that Congress would have allowed absentee balloting to occur under state laws if it attached the meaning to the federal election statutes urged by the VIP. More than a century ago, some states began to allow absentee voting, and all states currently provide for it in some form, ... yet Congress has taken no action to curb this established practice.

We are unable to read the federal election day statutes in a manner that would prohibit such a ⁸¹ universal, longstanding practice of which Congress was obviously well aware.” 199 F.3d at 776 . Bomer does not support the appellants’ argument, nor is it analogous to the situation sub judice. Bomer did not address a state constitutional challenge, which is what is presented in the case sub judice. Thus, while, to be sure, the court in that case stated that “[t]he challenged Texas statutes encourage voting by providing Texas voters with more opportunities to vote,” 199 F.3d at 777 , and “further the important federal objective of reducing the burden on citizens to exercise their right to vote by allowing them to vote at a time convenient to them, without thwarting other federal concerns,” id., it did so in the context of a challenge based on preemption as opposed to a state constitutional challenge.

Millsaps is similarly unhelpful. There, a challenge similar to that in Bomer was brought against Tennessee’s Early Voting Statutes (“TEVS”). Again, the plaintiffs in the case argued that the early voting system conflicted with federal statutes that established the first Tuesday after the first Monday in November in even-numbered years as election day for federal office holders. TEVS allows a voter wishing to vote early to go to the county election commission office within posted hours “not more than twenty (20) days nor less than five (5) days before the day of the election.

A voter desiring to vote in the early voting period shall sign an application for a ballot.” 259 F.3d at 537 , citing Tenn.Code. Ann. § 2-6-102(a) (emphasis added). Unlike absentee balloting, which required the identification of one of a few specifically enumerated reasons for voting absentee, TEVS established a separate method of early voting that did not require the voter to give any reason for wanting to vote early. 259 F.3d at 537 . As the Fifth Circuit Court of Appeals in Bomer had done, the Sixth Circuit Court of Appeals relied on the holdings in Foster , that “if an election does take place, it may not be consummated prior to federal election day,” 259 F.3d at 544 , ⁸² citing Foster, 522 U.S. at 72 n. 4, 118 S.Ct. at 468 n. 4, 139 L.Ed.2d at 375 n. 4, and that an “election” is “the combined actions of voters and officials meant to make a final selection of an officeholder ...” 259 F.3d at 547 , citing Foster, 522 U.S. at 71 , 118 S.Ct. at 467 , 139 L.Ed.2d at 374 .

Using this rationale, the court concluded that the TEVS did not violate federal law. It explained: “So long as no combined action occurs any day other than federal election day, or so long as any such combined action is not intended to make a final selection of a federal officeholder, a State has complied with the federal elections statutes.” 259 F.3d at 547 . Moreover, like Bomer , the Millsaps court was influenced by the adverse effect that an adverse ruling would have on absentee voting: “[W]e see no principled distinction between the [TEVS] at issue in this ease and the mechanics of absentee voting .... the plaintiffs’ argument would apply with equal force to absentee voting and result in a declaration that federal law preempts a widely accepted and long-standing electoral practice.” 259 F.3d at 547 . The Sixth Circuit Court of Appeals finally held that no Congressional purpose was frustrated, noting that “there is no reason to think that simply because Congress established a federal election day it displaced all State regulation of the times for holding federal elections.” 259 F.3d at 549 .

Millsaps does not support the appellants’ position any more than did Bomer. Millsaps also did not deal with a state constitutional challenge to the Tennessee early voting scheme. 33 A determination that a state statute does not ⁸³ conflict with an existing federal law does not insulate that state’s statute from state constitutionality analysis. In sum, Bomer and Millsaps do not support the appellants’ position. Voting, as the Circuit Court held, must mean the casting of ballots.

Indeed, that is the focus of the Constitutional provisions. Article I, § 1, for example, states simply who can vote and where voting may occur. By contrast, there is no constitutional provision that prescribes who may canvass the votes or when or how the votes are to be canvassed; for that matter, no constitutional provision expressly authorizes canvassing or any of the ministerial actions that election officials must perform in conjunction with elections. Article XV, § 7 and the other constitutional provisions prescribing the date of election are clear: the election “shall be held on the Tuesday next after the first Monday in the month of November, in the year in which they shall occur.” (Emphasis added).

There is no constitutional provision that states that voting shall begin on one date and end on another; it merely provides that the election shall be held on a specific day. Read in conjunction with Article I, § 1, this provision indicates that, apart from absentee voting, in-person ballot casting must begin and end on the same day. Thus, any statute that allows for a ballot to be cast before the prescribed day must be in derogation of the Constitution. The appellants, continuing to rely on the meaning Foster ascribed to “election,” argue that an “election” cannot mean the mere casting of votes.

This is so, they say, because an election has not been “held” until the canvassing of the votes has begun, since a voter has not “voted” until and unless his or her ballot has been “counted.” They further ask whether an election has been truly “held” if some emergency prevents the cast-ballots from being counted? We are not persuaded. The Constitution contemplates an election in terms of the voter, not in terms of the election process. Moreover, while