Lamone v. Lewin

McDonald, J. Under Maryland law, the State Board of Elections ("State Board") and the local election boards have the often formidable task of conducting elections fairly, efficiently, and even-handedly. To that end, the General Assembly has directed the State Board "to ensure compliance with the requirements of [the Election Law Article]" and any federal law relating to the election process. 1 This case raises the question whether the State Board has discretion to deviate from the directives of the Election Law Article concerning the content of a primary election ballot and whether its adherence to those directives violated the State and federal constitutions. Nathaniel Oaks, a longtime State legislator, filed a timely certificate of candidacy for the 2018 primary election for the State Senate seat that he held and for a position on his party's central committee. Before the primary, but after the deadlines for withdrawal of his candidacy and removal of his name from the ballot, he pled guilty to two felonies in federal court.

The guilty plea itself did not disqualify him from holding office, but service of a prison sentence for those offenses would. After the State Board included his name on the certified primary election ballot in accordance with the relevant provisions of the Election Law Article, Appellees Nancy Lewin, Elinor Mitchell, and Christopher Ervin - two of whom were rival candidates for the central committee - filed this suit against Appellant Linda Lamone in her official capacity as State Administrator of Elections to have Mr. Oaks' name removed from the ballot. The Appellees later filed a motion for an injunction to compel the State Board to remove Mr. Oaks' name from the ballot on the ground that he would likely receive a prison sentence that would render him disqualified before the general election. The Circuit Court declined to grant the injunction, on the basis that Mr. Oaks' disqualification from office, though likely, was not yet certain.

Shortly thereafter, Mr. Oaks gave up his voter registration, rendering him disqualified for office because he was not a registered voter. The Circuit Court then issued the requested injunction, ordering the State Board to remove Mr. Oaks' name from the primary election ballot, despite the fact that such an action was contrary to the Election Law Article. The State Board appealed. We reversed the Circuit Court in a per curiam order.

We now state our reasons for that decision. I Background A. State Election Law - Candidacy in a Primary Election Eligibility A minimum requirement for eligibility to serve in any office created pursuant to the Maryland Constitution - such as State Senator - is that one must be a registered voter on the date of election and throughout the entire term of service. Maryland Constitution, Article I, § 12. Similarly, to be a candidate for an office of a political party or to be a nominee of that party one must be a registered voter affiliated with that party.

Maryland Code, Election Law Article ("EL") § 5-203(a)(2). 2 An individual who has been convicted of a felony and is serving a sentence of imprisonment for that conviction is not qualified to be a registered voter. EL § 3-102(b)(1). Thus, during such imprisonment, that individual may not hold public or party office in Maryland. Deadlines for Candidates in Primary Elections The Election Law Article sets certain deadlines for a candidate to appear on the ballot in a primary election.

There are three deadlines relevant to this case. First, one must file a certificate of candidacy by "the last Tuesday in February in the year which the primary election will be held." EL § 5-303(a)(1). 3 For the 2018 primary election, that deadline was February 27, 2018. Second, if a candidate has a change of heart and no longer wants to run in the primary election, the candidate must file a certificate of withdrawal within two days after the deadline for filing a certificate of candidacy. EL § 5-502(a).

If the candidate withdraws by the statutory deadline, the previously-filed certificate of candidacy is void and the person's name is not to appear on the ballot. EL § 5-504(a). For the 2018 primary election, the withdrawal deadline was March 1, 2018. Third, if a person has filed a timely certificate of candidacy, but the pertinent board of elections learns, by the 10 th day after the deadline for filing that certificate, that the person has died or become disqualified for office, the person's name is not to appear on the ballot.

EL § 5-504(b) ; EL § 5-601(1)(ii). For the 2018 primary election, that deadline fell on March 9, 2018. If a person has filed a timely certificate of candidacy, but has not filed a timely certificate of withdrawal, or died or become disqualified (to the knowledge of the board of elections) by the statutory deadline, the name of the candidate "shall appear on the primary election ballot." EL § 5-504(b) ; see also EL § 5-601 (the name of the candidate "shall remain on the ballot and be submitted to the voters"). If a candidate in a primary election garners the most votes as a party's nominee in the primary election but wishes to decline the nomination or dies or becomes disqualified for the office, the party is to choose a successor nominee according to the Election Law Article.

EL §§ 5-801, 5-1001 et seq. 4 Deadline for Ballot Certification and Overseas Ballots The State Board is to certify the content and arrangement of the ballots for a primary election at least 55 days before the election. EL § 9-207(a)(1). Because different candidates stand for various offices in different districts and localities, there are multiple versions of the primary election ballot - referred to as "ballot styles" - that correspond to the various permutations pertinent to particular geographical areas. According to the State Board, there were 747 different ballot styles related to the 2018 primary election.

Within 24 hours after certification, the State Board is to publicly display the content and arrangement of the ballots on its website. EL § 9-207(c). Unless a court orders otherwise, the content and arrangement of the ballot may not be changed after the second day of public display and the State Board may begin printing ballots. EL § 9-207(d) - (e).

These deadlines are specified to ensure that the State Board has time to comply with federal law that requires that absentee ballots be available to military and overseas voters at least 45 days before the election. Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20302 (a)(8)(A). For the 2018 primary election, that deadline was May 12, 2018. B. Candidacy in the 2018 Primary Election Generally According to statistics compiled by the State Board, it received 2,563 certificates of candidacy for the 2018 primary election by the February 27 deadline and 77 certificates of withdrawal by the March 1 deadline.

The State Board became aware of the death or disqualification of eight candidates by the March 9 deadline and removed their names from the ballot. The State Board received approximately 10 requests from candidates to withdraw after the statutory deadline, which were all rejected on grounds of lateness. Mr. Oaks, his Candidacy, and his Criminal Prosecution Mr. Oaks had served as a member of the House of Delegates for nearly 30 years when he was appointed to fill a vacancy in the State Senate for Legislative District 41 on February 10, 2017. See https://msa.maryland.gov/msa/mdmanual/05sen/former/html/msa12285.html [ https://perma.cc/F9HJ-NHRK ] (last visited July 18, 2018).

On April 7, 2017, Mr. Oaks was initially charged in a criminal complaint in the United States District Court for the District of Maryland with wire fraud, a felony under the federal criminal law. United States v. Oaks , No. 1:17-CR-00288-RDB (D. Md.). On May 31, 2017, a federal grand jury superseded that complaint by returning an indictment comprised of nine felony counts. The charges all related to "corrupt use of his office in a bribery scheme." See United States v. Oaks , 302 F.Supp.3d 716 , 718 (D. Md. 2018).

Mr. Oaks pled not guilty to the charges; pretrial motions challenging the indictment were filed and litigated on his behalf. Id. The filing of the criminal charges alone did not disqualify Mr. Oaks as a registered voter, as a candidate for office, or, for that matter, as an incumbent office holder. As indicated above, he would be disqualified in all three respects if and when he was convicted and imprisoned with respect to those charges.

While the criminal charges remained pending against him, Mr. Oaks filed a timely certificate of candidacy for the State Senate seat that he held, as well as for the Democratic Central Committee for District 41 in Baltimore City. Mr. Oaks did not withdraw his candidacy by the March 1, 2018 deadline. Nor had the State Board learned of anything by the March 9, 2018 deadline that disqualified Mr. Oaks as a candidate, as indeed he was not disqualified as of that date. Accordingly, under the State election law, his name was to appear on the primary election ballot.

On March 29, 2018, Mr. Oaks pled guilty, pursuant to a plea agreement, to two counts in the federal criminal case. The maximum penalty for both of the offenses to which he pled guilty included 20 years imprisonment. Sentencing was scheduled for July 17, 2018. Like the indictment, the guilty plea itself did not disqualify Mr. Oaks from being a registered voter, from being a candidate for office, or from holding office.

He would become disqualified in all three respects if and when he were to serve a sentence of imprisonment as a result of that plea. On the same day that he pled guilty, Mr. Oaks resigned from his State Senate seat. Certification of 2018 Primary Ballots The State Board certified the primary election ballots on April 3, 2018 and, in accordance with the statute, posted them on its website the next day. Because Mr. Oaks had not filed a certificate of withdrawal nor become disqualified as a voter or candidate (even as of the date of his resignation from the Senate), the State Board included his name as a candidate for the State Senate and Democratic Central Committee on the pertinent primary election ballots that it certified.

C. Legal Proceedings Complaint On April 9, 2018, almost a week after the ballots for the primary election had been certified, the Appellees filed this action in the Circuit Court for Anne Arundel County against Ms. Lamone in her official capacity as State Administrator of Elections. The Appellees were all registered voters in District 41; both Ms. Mitchell and Mr. Ervin were candidates for the Democratic State Central Committee for that district. The complaint alleged that the State Board was allowing "the name of a person who will be disqualified" from the general election and from serving as State Senator to remain on the primary election ballot. Having Mr. Oaks' name on the ballot, the complaint alleged, would confuse voters, cause voters to mistakenly vote for Mr. Oaks despite his anticipated disqualification, and violate the federal and state constitutional rights of the voters within the district.

The complaint asked the court to compel the State Board to remove Mr. Oaks' name from the primary election ballot. The Appellees brought their lawsuit under EL § 12-202. Under that statute, a registered voter may seek judicial relief from a State Board action or omission relating to an election on the grounds that the act or omission is "inconsistent" with applicable election laws and "may change ... the outcome of the election." EL § 12-202(a)(1)-(2). 5 Prior to an election, suit must be filed within 10 days after the act or omission allegedly inconsistent with the election law - or within 10 days after the act or omission became known to the plaintiff. EL § 12-202(b)(1).

The complaint also asked the court to issue a writ of mandamus against the State Board, and sought declaratory and injunctive relief. Denial of Motion for TRO or Preliminary Injunction One week after the complaint was filed, the Appellees filed an amended complaint and a motion for a temporary restraining order ("TRO") and a preliminary injunction directing the State Board to take Mr. Oaks' name off the ballot. In that motion, they argued that the election law deadlines for removing names from the ballot are directory rather than mandatory, that the State Board therefore had discretion to remove Mr. Oaks' name, and that its failure to do so was arbitrary and capricious. Alternatively, the Appellees asserted that, if the provisions of the Election Law Article are mandatory, the statute was unconstitutional as applied in this instance. 6 The Circuit Court denied the motion for a TRO and scheduled a hearing concerning the request for a preliminary injunction.

On Friday, April 20, the Circuit Court held a hearing on the motion for a preliminary injunction. At the hearing, the State Board argued that it had no discretion to remove Mr. Oaks' name from the ballot in light of the statutory deadlines for doing so. It also presented evidence that, in any event, it would be difficult to remove Mr. Oaks' name from the ballot, even if it was legally permissible to do so. Natasha Walker, the Project Manager of Election Management Systems for the State Board, who was responsible for coordinating the layout and printing of ballots, submitted an affidavit and testified at the hearing about the process of preparing the ballots for the primary elections.

She stated that creation of the 747 different ballot styles in various formats ( e.g. , specimen ballots, election day ballots, absentee ballots, audio ballots, etc.) required eight days. An additional week was needed for a local election board in a larger jurisdiction such as Baltimore City to verify that the ballot styles aligned correctly with precincts. According to Ms. Walker, Mr. Oaks appeared on two of the ballot styles, which were assigned to 50 election precincts and seven early voting centers. Any change to a ballot would necessitate restarting the process and result in a delay of at least a week.

She stated that ballot preparation was complete and that printing was to begin on the Monday after the Friday hearing and was expected to take approximately three weeks. As of the date of the hearing, she stated it would be "doable" but "very challenging" to make any changes in the ballots. The Circuit Court denied preliminary injunctive relief. The court reasoned that, while it was "virtually certain" that the sentence that Mr. Oaks ultimately would receive in the federal criminal case would disqualify him in the future from participating in the general election, he was not yet disqualified and that his future disqualification remained "legally speculative." Accordingly, it was not a basis for granting a preliminary injunction.

The court did not express an opinion on whether EL § 5-504(b) and § 5-601 are mandatory or directory or on the constitutionality of those provisions. Mr. Oaks Withdraws his Voter Registration The following Monday, April 23, 2018, the State Board began printing the primary election ballots. That same day, Mr. Oaks withdrew his Maryland voter registration at the behest of the Appellees. In his letter to the local election board he stated that he was doing so "[t]o facilitate removal of my name from election ballot." Circuit Court Grants Preliminary Injunction In light of the fact that Mr. Oaks had relinquished his voter registration to disqualify himself from office, the Appellees filed a second amended complaint and asked the Circuit Court to reconsider their request for a preliminary injunction.

The State Board filed an opposition, including a supplemental affidavit of Ms. Walker stating that ballot printing had already begun and that, for a variety of reasons that she detailed, making changes to ballots at that stage was "not feasible." On April 26, 2018, without holding a hearing, the Circuit Court granted the preliminary injunction. It ordered the State Board to "immediately remove" Mr. Oaks' name from "any and all ballots for elective office." In its two-page order, the Circuit Court noted that Mr. Oaks had disqualified himself as a candidate by virtue of his voluntary removal from the voter registration rolls. As a consequence, the court reasoned, "the harm to the voters by way of potential confusion, inadvertence, and/or mischief by the appearance of a disqualified name on the ballot far outweighs any inconvenience to the Board of Elections." The court also concluded that there was "no less comprehensive remedy" other than taking Mr. Oaks' name off of the ballot to make sure "that the voters' rights to effectively exercise their franchise will be protected." In the order, the Circuit Court stated that it believed that there was sufficient time before the primary election for the State Board to revise the primary election ballots, and that any work on the ballots that the State Board had done between the denial of a preliminary injunction on April 20, 2018, and the grant of the motion on April 26, 2018, had been done with notice that the "matter remained in active litigation." As a result, the court said, the State Board could not claim that its position had been prejudiced. The court further concluded that the Appellees were likely to prevail on the merits of their claim, although it did not provide any analysis of the legal issues.

Finally, the court found that the balance of convenience favored the Appellees and that the public interest would be served by issuance of the injunction. 7 The State Board immediately filed a notice of appeal and a petition for a writ of certiorari in this Court pursuant to EL § 12-203(a)(3). On April 27, 2018, we granted certiorari and stayed the preliminary injunction issued by the Circuit Court pending further review. Following expedited briefing, and oral argument on May 2, 2018, 8 we issued a per curiam order that vacated the preliminary injunction and remanded the case to the Circuit Court with direction to dismiss the complaint. D. Epilogue In the interest of completeness, we take judicial notice of several events related to this case that occurred following the issuance of our per curiam order, but that do not affect our legal analysis in this opinion.

Approximately one month after we issued our order, Mr. Oaks apparently re-registered to vote on June 5, 2018. See Erin Cox, Former Baltimore Sen. Oaks Re-Registers to Vote, Making Him Technically Eligible to Serve if Elected , The Baltimore Sun (Jun. 13, 2018), available at http://www.baltimoresun.com/news/maryland/politics/bs-md-oaks-registers-to-vote-20180612-story.html [ https://perma.cc/XEG9-96F4 ] (last visited July 18, 2018). 9 Voting in the primary election took place during the early voting period of June 14 through June 22 and on primary election day, June 26, 2018. Mr. Oaks did not garner sufficient votes to be the State Senate nominee in the 41st District or to gain a position on the Democratic Central Committee. 10 See https://elections.maryland.gov/elections/2018/results/primary/index.html [ https://perma.cc/B4XB-BUBY ] (last visited July 18, 2018).

On July 17, 2018, the federal district court sentenced Mr. Oaks to 42 months imprisonment followed by three years of supervised release, a $30,000 fine, and 80 hours community service. He was required to begin serving his prison sentence in September 2018. Luke Broadwater, Former Maryland Senator Oaks Sentenced to 3½ Years in Prison for Corruption Charges , The Baltimore Sun (July 17, 2018), available at http://www.baltimoresun.com/news/maryland/politics/bs-md-oaks-sentencing-20180716-story.html [ https;//perma.cc/K4WF-9756?type=image ] (last visited July 18, 2018). II Discussion In its appeal, the State Board argued that this action was barred by laches and that, in any event, the Circuit Court erred in granting the motion for a preliminary injunction.

We agree that the Appellees failed to satisfy the requirements for the issuance of an injunction and, accordingly, do not address the laches argument. A. Standard of Review To decide a motion for a preliminary injunction, a trial court must consider four factors: (1) the likelihood that the plaintiff will succeed on the merits; (2) the "balance of convenience" - i.e. , consideration of the harm to the defendant if the court issues an injunction weighed against the harm to the plaintiff if the court does not; (3) whether the plaintiff will suffer irreparable injury; and (4) whether an injunction serves the public interest. Ehrlich v. Perez , 394 Md. 691 , 708, 908 A.2d 1220 (2006). Unless a court concludes that all four factors weigh in the plaintiff's favor, the court may not grant the preliminary injunction.

Id. Generally, an appellate court reviews the grant of a preliminary injunction for abuse of discretion, as assessment of the factors will relate to the particular facts of the case. 394 Md. at 707 , 908 A.2d 1220 . However, the trial court must consider those factors in accordance with correct legal standards, and an appellate court reviews the trial court's resolution of a question of law without deference to the trial court. Id. at 708, 908 A.2d 1220 .

In this case, we shall focus on the first of the four factors - the Appellees' likelihood of success on the merits. With regard to that factor, the party seeking the injunction must show a real probability of prevailing on the merits, not merely a remote possibility of doing so. 394 Md. at 708 , 908 A.2d 1220 . The relevant facts here are undisputed and thus the likelihood of the Appellees' success on the merits turned on a question of law. Accordingly, we review the Circuit Court's decision of that issue without deference.

B. Whether Appellees Were Likely to Succeed on the Merits of Their Claim To prevail on their claim under EL § 12-202, the Appellees had to establish that the presence of Mr. Oaks' name on the primary election ballot: (1) was inconsistent with the laws applicable to the election process, and (2) might change the outcome of the election. In our view, on the facts before the Circuit Court, there was no likelihood that the Appellees could establish the first element of their claim. As outlined earlier, the State Board acted consistently with the Election Law Article and applied it precisely in including Mr. Oaks' name on the primary election ballot. The Appellees do not appear to dispute the State Board followed the statutory provisions.

Instead, the Appellees argue that the State Board had leeway not to do so and, in fact, was required to depart from the statute. The Appellees' argument has two prongs. First, they argue that the deadlines in the Election Law Article for removing a name from the ballot may be disregarded because the statutory provisions are directory rather than mandatory. Second, they assert that, even if the statutory provisions directing that a candidate's name remain on the ballot are mandatory, the State Board's failure to deviate from that directive violated the federal and State constitutions. 1.

Mandatory versus Directory The question as to whether EL § 5-504(b) and § 5-601 are mandatory or directory is an issue of statutory construction. As always with statutory construction, we discern legislative intent by starting with the text of the statute, by checking the legislative history to confirm conclusions or resolve questions, and by considering the consequences of alternative readings of the text in order to avoid illogical or nonsensical interpretations. See Blue v. Prince George's County , 434 Md. 681 , 689, 76 A.3d 1129 (2013). Text in Context There is no dispute that Mr. Oaks failed to withdraw his certificate of candidacy by the deadline for doing so (March 1) and that he was not disqualified as a candidate by the deadline for removing candidates whose disqualification is known to the election board (March 9).

As outlined above, in those circumstances, the text of the pertinent statutes is unambiguous - the candidate's name "shall appear" and "shall remain" on the ballot. EL § 5-504(b) (candidate's name "shall appear on the primary election ballot"); EL § 5-601 (the candidate's name "shall remain on the ballot"). It is generally presumed that the use of the word "shall" by the Legislature denotes a mandatory obligation. See State v. Rice , 447 Md. 594 , 626, 136 A.3d 720 (2016) ("Absent any other indication that the context requires a different interpretation, we will not depart from our practice of interpreting the word 'shall' as mandatory."); Walzer v. Osborne , 395 Md. 563 , 580, 911 A.2d 427 (2006) ("When a legislative body commands that something must be done, using words such as 'shall' or 'must,' rather than 'may' or 'should,' we must assume, absent some evidence to the contrary, that it was serious and that it meant for the thing to be done in the manner it directed.") (editorial marks and citations omitted).

In some instances, however, the context of a statute may indicate that the General Assembly intended for a provision using the term "shall" to be directory. See Maryland State Bar Ass'n, Inc. v. Frank , 272 Md. 528 , 532-33, 325 A.2d 718 (1974). The Appellees observe that there is no penalty in the statute if the State Board were to remove the name of a candidate who belatedly asks to withdraw a candidacy or whose disqualification becomes known after the deadline. They suggest that the lack of a penalty means that these provisions are directory and that State Board has the discretion to remove names from the ballot after the deadline.

However, the absence of a statutory penalty is not dispositive as to whether "shall" is mandatory. Rice , 447 Md. at 625 , 136 A.3d 720 . Moreover, it is difficult to imagine what penalty the Legislature could have written into the statute to penalize the State Board for ignoring statutory deadlines. In this instance, there is nothing in the context of the statute that suggests that the State Board has discretion to remove a name from the ballot that the statute says "shall appear" and "shall remain" on that ballot.

Indeed, the sequence of deadlines in the statute demonstrates that the General Assembly contemplated the possibility that a person who filed a certificate of candidacy might have a change of mind after doing so and provided a window for the person to reverse course. Similarly, the Legislature also contemplated that a person, regardless of a continuing desire to run for office, might die or become disqualified after the withdrawal deadline, and expressly provided another window of time in which the State Board could correct the ballots in those circumstances - 10 days after the filing deadline. These deadlines were undoubtedly designed to provide some finality to facilitate compliance with other statutory deadlines in federal and State election law, such as the deadline for overseas ballots. The statutory context thus reinforces the plain meaning of the text.

The interpretation that such filing deadlines in the election law are mandatory and that election officials lack discretion to deviate from those deadlines has been reiterated on several occasions by this Court. E.g. , Andrews v. Secretary of State , 235 Md. 106 , 108, 200 A.2d 650 (1964) ("[W]here the election statutes fix a date for filing petitions or certificates of candidacy, such documents must be filed before the expiration of the time fixed, and that the election officials may not exercise any discretion in the matter") (citations omitted). Legislative History An examination of the statute's legislative history supports the conclusion that EL § 5-504(b) and § 5-601 allow the State Board no discretion to remove names from the primary election ballot after the relevant deadlines have passed. In 1966, this Court ruled, consistent with prior case law, that the filing and withdrawal deadlines in the State election law, then codified in former Article 33, §§ 56, 73 of the Maryland Code, were "mandatory and [left] no discretion in either the election officials or the court." McGinnis v. Board of Supervisors of Elections , 244 Md. 65 , 68, 222 A.2d 391 (1966). 11 One year later, the Legislature comprehensively revised the State election law, recodified the provisions concerning filing certificates of candidacy and withdrawing candidacy in new sections (former Article 33, §§ 4A-3 and 9-1), and included an express statement in the new withdrawal section stating that the deadlines were mandatory.

Chapter 392, Laws of Maryland 1967. Thirty years later, in 1996, the Legislature created the Commission to Revise the Election Code, known colloquially by the name of its chair as the Garber Commission, to undertake another comprehensive revision of the State election law. The Commission issued a report the following year that recommended various substantive changes in that law. See Report of the Commission to Revise the Election Code (December 1997).

While the Commission recommended a minor change in the deadline for removing a name from the primary election ballot, it did not recommend any change concerning the mandatory nature of the filing and withdrawal deadlines for candidates. Id. at 54-55. Based on the Commission's recommendations, in 1998, the Legislature enacted a comprehensive revision of former Article 33. Chapter 585, Laws of Maryland 1998.

The provisions of former Article 33, § 9-1 concerning the withdrawal of a candidate were rewritten and divided among various sections of the revised article. See former Article 33, § 5-501 et seq. , § 5-601 (1997 Repl. Vol., 1998 Supp.). 12 Pertinent to this case, former Article 33, § 9-1(b)(3) stated that the name of a person who filed a certificate of candidacy, was opposed, and did not withdraw "shall appear" on the primary election ballot. In the 1998 law, this provision was recodified as former Article 33, § 5-504(b), which was later carried over to the Election Law Article with the same codification and without substantive change.

Former Article 33, § 9-1(b)(1) set forth the process and deadline for withdrawing a candidacy in a primary election and stated that the name of a person who withdrew "shall not be printed" on the primary election ballot. In the 1998 law, this provision was recodified as former Article 33, § 5-504(a)(2), which provided that the name of a candidate who withdrew "may not be submitted to the voters." That provision was later carried over to the Election Law Article with the same codification and without substantive change. Former Article 33, § 9-1(a) stated that the withdrawal deadline was mandatory - in other words, a candidate who missed the withdrawal deadline had not withdrawn and therefore the direction in § 9-1(b)(1) not to print the name on the ballot did not apply. The effect of § 9-1(a) was carried over in the 1998 law in Article 33, § 5-601 which converted what would be a double negative into an affirmative statement - the name of such a candidate "shall remain" on the ballot.

Like § 5-504, § 5-601 was carried over to the Election law Article with the same language and without substantive change. It thus appears that § 5-504(b) and § 5-601 were intended to incorporate the mandatory nature of the withdrawal deadlines recognized in McGinnis and prior cases and in the 1967 revision of the election law. As noted above, those provisions were carried over with the same codification, without substantive change, in the new Election Law Article in 2002. Chapter 291, Laws of Maryland 2002.

In all respects pertinent to this case, they remain unchanged since that time. Thus, the legislative history of the State election law demonstrates that the withdrawal deadlines have long been considered mandatory and there is no indication that the General Assembly intended to confer discretion on the State Board to ignore them. 13 Consequences Under the Appellees' interpretation of the statutory language, the State Board would have discretion to decide whether to remove a candidate's name from the ballot if the candidate belatedly requests removal, becomes disqualified, or (as in Mr. Oaks' case) arranges his own disqualification by relinquishing voter registration. That interpretation invites a score of related questions. For example, in this case, Appellees sought the removal of Mr. Oaks' name from the ballot while he was still qualified as a voter and candidate.

According to the record in this case, 10 other presumably qualified candidates also asked to be removed from the primary ballot after the deadline for doing so. Which of these would the State Board forgive for missing the deadline? And how would it decide? How late would the State Board have discretion to deviate from the deadline?

One week? Two weeks? Or (as in the case of Mr. Oaks) seven weeks after the withdrawal deadline and just two weeks before overseas ballots are to be sent out? Should the State Board remove a name from the ballot if it, or someone else, anticipates the future disqualification of a candidate sometime after the statutory deadline?

How certain must the future disqualification be? Does it matter whether the candidate acquiesces or opposes the effort? The statute provides no answers - in our view, because the General Assembly did not intend to confer on the State Board the discretion to remove a name from the ballot contrary to the directive of the statute. The Appellees propose that "likelihood of confusion" should be the State Board's benchmark when deciding whether to remove a name that the statute says "shall remain" on the ballot.

At oral argument, Appellees suggested that, if a candidate who wishes to belatedly withdraw, or who is belatedly disqualified, is well known, then the candidate's presence on the ballot is more likely to confuse voters, and the name should be removed from the ballot. In our view, such a standard calls for the sort of subjective judgment that is antithetical to the even-handed role that the State Board must play. What neutral, objective measure of notoriety should it consult? Google hits?

Twitter followers? Number of failed or successful bids for office? If it looks to any of those metrics, what is the cut-off for deviating from the statute? Again, there is no direction in the statute from the Legislature on how to exercise such discretion - another clue that the General Assembly did not intend to confer it.

Finally, Appellees assert that a consequence of interpreting the statutes as mandatory would be to render them unconstitutional. Appellees urge us to apply the canon of constitutional avoidance to construe the text of the statute as directory rather than mandatory. Under the canon of constitutional avoidance, if a legislative act is susceptible to two interpretations - one constitutional and the other potentially not - a court will opt for the constitutional interpretation rather than invalidate the statute. See Koshko v. Haining , 398 Md. 404 , 425-26, 921 A.2d 171 (2007) ; G. Heileman Brewing Co. v. Stroh Brewery Co. , 308 Md. 746 , 763, 521 A.2d 1225 (1987).

However, as indicated in the next section of this opinion, construing these provisions as mandatory does not render them unconstitutional. Thus, there is no need to find them directory to rescue them from a constitutional challenge. Summary The plain language of the statute, read in context, and confirmed by its legislative history, manifests that the directives in EL §§ 5-504(b) and 5-601 concerning ballot content are mandatory. Thus, the State Board has no discretion to remove the name of a candidate that those provisions state "shall appear" and "shall remain" on the primary election ballot.

To hold otherwise would be contrary to the statute's plain language, and. would delegate unspecified discretion to the State Board to remove names from a primary election ballot without direction from the Legislature as to when to do so. The Appellees characterize this requirement as "inflexible," but we give "judicial deference to the policy decisions enacted by the General Assembly." Phillips v. State , 451 Md. 180 , 196, 152 A.3d 712 (2017). It was up to the Legislature to weigh the consequences of a deceased or otherwise disqualified candidate appearing on the ballot against the need to prepare and print the ballots in a timely manner for the primary election. It has done so here, and it did not give the State Board discretion to deviate from that balance. 14 2.

Constitutionality of EL § 5-504 and § 5-601 as Applied The Appellees' constitutional argument appears to be an "as applied" challenge to these provisions of the election law. In an "as applied" challenge, the challenger claims "that a statute is unconstitutional on the facts of a particular case or in its application to a particular party." Motor Vehicle Administration v. Seenath , 448 Md. 145 , 181, 136 A.3d 885 (2016) (quoting Black's Law Dictionary (10th ed. 2014) ). The Appellees argue that, while EL § 5-504 and § 5-601 may be constitutional on their face, they violate the federal and State constitutions when applied to retain Mr. Oaks' name on the primary election ballot. Appellees rely specifically on the First and Fourteenth Amendments of the federal Constitution and Articles 7 and 24 of the Maryland Declaration of Rights.

State laws concerning the appearance of a candidate on a ballot may implicate the freedom of association guaranteed by the First Amendment, which is also "an inseparable aspect of the 'liberty' assured by the Due Process Clause" of the Fourteenth Amendment. Anderson v. Celebrezze , 460 U.S. 780 , 787-88, 103 S.Ct. 1564 , 75 L.Ed.2d 547 (1983) (citation omitted). Article 7 of the Maryland Declaration of Rights guarantees "free and frequent elections" and provides the "right of suffrage" to citizens with constitutional qualifications. Article 24 of the Maryland Declaration of Rights incorporates guarantees of due process