State Administrative Board of Election Laws v. Board of Supervisors of Elections

ELDRIDGE, Judge. The dispute in this case is between the Baltimore City Board of Supervisors of Elections and the State Administrative Board of Election Laws. The controversy, which arose shortly before the 1995 Baltimore City mayoral election, concerned the failure of the Baltimore City Election Board to conduct a purge of inactive voters from its registration rolls. In an action for a declaratory judgment and other relief, the Circuit Court for Baltimore City entered a judgment in favor of the Baltimore City Election Board, and the State Board appealed.

This Court granted the State Board’s petition for a writ of certiorari and motion for an expedited hearing. After briefing and oral argument, we issued an order on June 16, 1995, affirming the circuit court’s judgment. We now set forth the reasons for our order. I. Prior to January 1, 1995, Maryland Code (1957, 1993 Repl.

Vol.), Art. 33, § 3-20, required local election boards to remove ⁵⁹⁰ annually from voter registration rolls the names of registered voters who had not voted “at least once at a primary, general or special election within the five preceding calendar years.” 1 Former § 3-20(b) stated that once a voter was removed from the registration rolls for failing to vote within the last five years, that person could not vote until he or she registered again. The General Assembly of Maryland in 1994, however, repealed § 3-20 and enacted Code (1957, 1993 Repl.Vol., 1995 Supp.), Art. 33, § 17A, effective January 1, 1995. Pursuant to this new statute, a registered voter’s name may be removed from the registration rolls only at the request of the registrant, by reason of a criminal conviction or a guardianship for ⁵⁹¹ mental disability as provided by State law, on a determination that the registrant has died, or upon a change of address. 2 Removal because of the failure to vote within the preceding five years is no longer authorized by statute. 3 In early 1995, a dispute arose between the Baltimore City Election Board and the State Election Board regarding the failure of the local Board to conduct a purge in 1994 of those voters who had not voted in elections during the preceding five years. This omission by the Baltimore City Board, however, was not discovered until January 1995, after the repeal of the Art. 33, § 3-20.

On January 31, 1995, the Attorney General of Maryland advised both election boards that the Baltimore City Board could not lawfully conduct a purge in 1995 because the authority for that action had been repealed. Despite the 1995 repeal of § 3-20 and the Attorney General’s opinion, the State Board on March 29, 1995, ordered that the ⁵⁹² Baltimore City Board conduct a purge of inactive voters. 4 In response to the State Board’s order, the Baltimore City Board decided to institute a voter verification mail program pursuant to the newly enacted Art. 33, § 3-17A. Section 3-17A(b) authorizes a local election board to conduct by mail a verification program aimed at removing the names of voters who have become ineligible to vote in the district where they are registered because they have moved outside of the district. In order for the program to be executed, however, a local election board must obtain approval from the State Board.

See Code (1957, 1993 Repl.Vol., 1995 Supp.), Art. 33, § 3-17A(b)(2). In the present case, the State Board rejected the Baltimore City Board’s proposal. After the State Board’s rejection of the proposed voter verification program, the Baltimore City Board, represented by the Attorney General, filed on May 3, 1995, in the Circuit Court for Baltimore City, a complaint for a declaratory judgment and other relief. The plaintiff also filed motions for summary judgment and to expedite the proceedings.

Specifically, the Baltimore City Board requested that the State Board’s purge order be declared unlawful in light of the change in the law, and that the State Board be ordered to approve the local Board’s alternative proposal to verify the eligibility of Baltimore City registrants. At the conclusion of a hearing on May 23, 1995, the circuit court granted the local Board’s motion for summary judgment and entered a judgment declaring that the March 29, 1995, order of the State Board, directing the Baltimore City Board to conduct a purge, was unlawful because the authority to conduct such purge had been repealed. The court further ordered the State Board to approve the local Board’s proposed mail verification program. In an opinion delivered at the conclusion of the hearing, the circuit court explained: ⁵⁹³ “The Court has concluded that to order that the voters that haven’t voted in the last five years be stricken from the voter registration rolls of Baltimore City could be violative of ...

Article 33, § 3-17A, and the fact that the city election board failed in its duty to make that purge when it was allowed to make that purge does not deprive the voters of Baltimore City, including or particularly those who haven’t voted in the last five years, of voting in the municipal election in September and November of 1995. There is nothing in the law that I can find that would allow the punishment of the voters for the sins of the [local election] board.” The State Board immediately noted an appeal to the Court of Special Appeals and thereafter filed in this Court a petition for a writ of certiorari and a motion for expedited consideration. 5 As previously indicated, we granted the certiorari petition and the motion for expedited consideration. After receiving briefs and hearing oral argument, we affirmed the circuit court’s judgment.

II

The State Board contends that the failure of the Baltimore City Board to purge from the voter registration rolls the names of all voters who had not voted between January 1, 1989, and December 31, 1993, must be “corrected” by undertaking such purge after January 1, 1995, even though the statutory authority to conduct a purge was repealed effective January 1, 1995. The State Board argues that, because the local Board’s omission occurred in 1994, the applicable statutory provision is former Art. 33, § 3-20, which was in effect in 1994. According to the State Board, to apply the new statute, ⁵⁹⁴ Art. 33, § 3-17A, would be giving it “retrospective application.” (Appellant’s brief at 11). Furthermore, the State Board maintains that the Baltimore City registered voters who had failed to vote for five years prior to 1994, and who, therefore, should have been purged, are not “eligible voters.” (Appellant’s brief at 16).

The State Board asserts that the voter registration rolls containing the names of the inactive voters are inaccurate. Lastly, the State Board argues that, since inactive registered voters in the counties were presumably purged and were required to reregister, Baltimore City registered voters who were inactive during the same period should not be allowed to vote without having had to suffer a purge and to reregister. The State Board maintains that this alleged inequality of treatment between Baltimore City residents and county residents violates both the Equal Protection Clause of the Fourteenth Amendment and the equal protection principle embodied in Article 24 of the Maryland Declaration of Rights. 6 In addition, the State Board asserts that this different treatment is inconsistent with Article I, § 2, of the Maryland Constitution, providing “for a uniform Registration of the names of all the voters in this State....” 7 In the view of the ⁵⁹⁵ State Board, equal protection and uniformity principles are infringed by granting “the right to vote” to “[citizens in Baltimore City who were inactive,” but denying the same right to “[citizens in all jurisdictions other than Baltimore City who failed to vote during the period specified” (Appellant’s brief at 14). The State Board relies on cases which, on equal protection grounds, invalidated statutes applying additional voting qualifications to some citizens but not to others.

See Kramer v. Union Free School District, 395 U.S. 621 , 89 S.Ct. 1886 , 23 L.Ed.2d 583 (1969); O.C. Taxpayers for Equal Rights, Inc. v. Mayor and City Council of Ocean City, 280 Md. 585 , 375 A.2d 541 (1977). The Baltimore City Board, in addition to disagreeing with the State Board’s position on the merits, argues that the State Board “has no standing ... [to] assert the alleged equal protection rights of’ the individual citizens “whose rights to equal protection have supposedly been violated by the City Board’s failure to do the purge.” (Appellee’s brief at 16). The local Board invokes the general principle that a litigant is not entitled to assert someone else’s right to equal protection of the laws.

III

Before turning to the merits of the controversy, we shall address the Baltimore City Board’s argument that the ⁵⁹⁶ State Board lacks standing to assert the equal protection rights of individual Maryland citizens with regard to voting. Of course, “the general rule is that a person may only assert his own constitutional rights or immunities.” Clark v. State, 284 Md. 260, 264 , 396 A.2d 243, 246 , cert. denied, 444 U.S. 858 , 100 S.Ct. 119 , 62 L.Ed.2d 77 (1979) (equal protection challenge to the statute punishing escapes from penal institutions). Nevertheless, the principle that one person is ordinarily not entitled to assert someone else’s right to equal protection of the laws does have exceptions. See, e.g., the discussion in Powers v. Ohio, 499 U.S. 400, 410-415 , 111 S.Ct. 1364, 1370-1373 , 113 L.Ed.2d 411, 425-428 (1991), and cases there cited.

Moreover, under the Maryland law of standing, when a litigant has an independent basis for standing to challenge the validity of particular governmental action or inaction, under some circumstances the challenge may include the contention that the governmental action is unconstitutionally discriminatory, even though the challenger is not the person or entity being discriminated against. See State v. Burning Tree Club, Inc., 315 Md. 254, 290-293 , 554 A.2d 366, 371-373 , cert. denied, 493 U.S. 816 , 110 S.Ct. 66 , 107 L.Ed.2d 33 (1989). In addition, the Legislature may confer a status, powers, or duties upon an official or agency which, in appropriate situations, enables that official or agency to assert the interests or rights of others. See, e.g., Public Service Comm’n v. Md. People’s Counsel, 309 Md. 1, 6-10 , 522 A.2d 369, 371-373 (1987).

In light of the powers and duties conferred upon the State Board by the General Assembly, we believe that the State Board had standing to raise the equal protection and uniformity issues in the context of this case. The General Assembly, in Art. 33, § 1A-I(e), has broadly provided that “[t]he State Administrative Board of Election Laws shall have the following powers and duties, including but not limited to: (1) Exercising supervision over the conduct of elections in the State____” Subsection (2) of the same section authorizes the State Board to adopt rules and regulations “to ⁵⁹⁷ facilitate compliance by the [local] boards of supervisors of elections with the requirements of this article in the conduct of registrations, voting and elections in the State.... ” The remaining subsections of § 1A-I(e), as well as numerous other provisions of the Election Code, more specifically set forth the State Board’s supervisory authority -with regard to voter registration, approval of “Voting Systems,” voting, absentee ballots, recounts, election records, etc. Under Art. 33, § 1A—1(f), the State Board is required to hold meetings with the members of the local boards, and “[i]t is mandatory for those members of the [local] boards, substitute members, the principal administrative officers of the boards and the counsel for the boards who are designated by the State Administrative Board to attend.... ” The section goes on to state: “The purpose of the meetings is to instruct the members of the boards, designated employees and counsel as to their duties in the conduct of elections.” Consequently, the supervisory authority of the State Board over the local boards is pervasive. If local boards are engaging in acts or omissions in the conduct of voter registration which violate the legal rights of Maryland citizens possessing the qualifications to vote, the State Board clearly has the authority to issue to the local boards lawful orders that will correct the problem. Furthermore, when the propriety of such an order by the State Board is challenged in court, the State Board can certainly defend the order on the ground that the local board’s action or omission resulted in denying legal rights to Maryland citizens.

In the context of this case, therefore, the State Board had standing to raise the equal protection and uniformity issues.

IV

Although the State Board has standing to make the arguments which it advances, those arguments must fail. The order issued to the Baltimore City Board was clearly not a lawful order; it directly contradicted the applicable statutory scheme. Moreover, there is no merit to the State Board’s ⁵⁹⁸ attempt to justify its order by contending that the local Board’s application of Art. 33, § 3-17A is improperly “retrospective,” that the inactive Baltimore City registrants were not “eligible” to vote, and that equal protection principles were infringed. A. The State Board’s assertions that § 3-17A was “retrospectively” applied by the local Board, that the “inactive” Baltimore City registrants were not “eligible” voters, and that the local Board’s failure to purge them implicates the fundamental right to vote for purposes of equal protection analysis, seem to be premised upon the theory that being an active or frequent voter was a qualification for voting in 1994.

This premise underlying the State Board’s position, however, is flatly erroneous. Being a frequent voter was not, and could not have been, a qualification for voting in 1994. The qualifications for voting in Maryland are prescribed in Article I, §§ 1 and 4, of the Maryland Constitution. 8 In order to vote, one must be a citizen of the United States, eighteen years of age or older, and a resident of Maryland. In addition, the General Assembly may regulate or prohibit ⁵⁹⁹ the right to vote of one convicted of a serious crime or under care or guardianship for mental disability.

These prerequisites are the exclusive qualifications for voting in Maryland. See Article 7 of the Maryland Declaration of Rights (“every citizen having the qualifications prescribed by the Constitution, ought to have the right of suffrage”); Jackson v. Norris, 173 Md. 579, 594 , 195 A. 576, 584 (1937); Kemp v. Owens, 76 Md. 235 , 24 A. 606 (1892). See also Board v. Goodsell, 284 Md. 279, 283 , 396 A.2d 1033, 1035 (1979). Moreover, the General Assembly may neither expand nor curtail the qualifications necessary to vote.

See, e.g., Langhammer v. Munter, 80 Md. 518, 527 , 31 A. 300, 301-302 (1895) (“But whatever may be done, no restrictions can be imposed that will require other or different qualifications for voting, than those prescribed by the first Article of the Constitution of the State”); Southerland v. Norris, 74 Md. 326, 328 , 22 A. 137, 137 (1891) (“These qualifications [for voting in Maryland], fixed by the organic law, can neither be enlarged nor curtailed by the General Assembly”). Consequently, having voted frequently in the past is