Suessmann v. Lamone

1A.2d B. et al. Michael SUESSMANN al. H. et Linda LAMONE Term, Sept. No. Maryland. Appeals

Court 17, 2004. Nov. (Deborah R. Rocah A. and Richard D. Griffiths

David Jeon Maryland, Civil Liberties Union Foundation of American Baltimore), brief, appellants. on Berman, (J.

Michael D. Deputy Litigation Chief of Joseph Curran, Jr., Attorney of Maryland, General Judith A. Arnold General, and Melissa Whipkey, S. Assistant Attorneys Balti- Panos, Cynthia California; more: Praley, James C. Glen Burnie), brief, for appellees.

Argued BELL, C.J., RAKER, WILNER, before CATHELL, HARRELL, GREENE, and JOHN C. (retired, specially ELDRIDGE assigned), JJ.

RAKER, J. This is an action seeking declaratory injunctive relief from the allegedly unconstitutional exclusion of unaffiliated voters from the Democratic and Republican Parties’ primary circuit court Appellants candidates. seek to enjoin certification of the results of primary election 2, offices held on March 2004 and an order directing Mary’s the St. and Anne County Arundel Boards of Elections to conduct new primary elections for offices in which all registered voters in respective counties partici- addition, pate. appellants an injunction seek barring the Board State of Elections from prohibiting unaffiliated voters from participating primary future elections for candidates. This Court a per issued curiam Order on the 2nd (1) day of April, 2004 that affirmed the denial the Circuit Court for Mary’s St. County appellants’ request for a preliminary injunction and 2, the invalidation of March 2004 primary elections and reserved judgment on the issue of the declaratory judgment until an opinion later to be filed. (2004). 380 Md. 844 A.2d 428 now give We the reasons for our Order and address the reserved issues.

I. The case involves a constitutional challenge Maryland’s procedure for electing circuit court judges. Maryland Under law, a candidate for a circuit court judgeship may attain a spot on election ballot by winning ie., primary election of a “principal political party,” either the two Republican Party. principal The Democratic or unaffiliated currently permit do parties elections, including primary to vote their nonparty members for judicial elections candidates.1 and Anne Mary’s two voters of St. registered

Appellants Counties, with are not affiliated respectively, Arundel B. Michael Appellant principal political parties. either Mary’s in St. registered an unaffiliated voter Suessmann is unaffiliated registered County. Gregory Care Appellant in the wish to vote County. They in Anne Arundel voter elections, cir- nominate candidates for which parties’ primary in- declaratory and Appellants cuit court seek judgeships. of Elections junctive against relief the State Administrator Elections, Board of and the individual members of State Elections, and the St. County the Anne Arundel Board State”). “the (collectively Board of Mary’s County Elections under the Fourteenth Appellants allege rights their Mary- Constitution and the to the United States Amendment have been because State Rights land Declaration violated law of unaffiliated voters like permits the exclusion elections, judicial primary from participating themselves “nonpartisan.” designated by which have been State as (in year five contested Baltimore, Frederick, Harford, Arundel, Mary’s and St. Anne Counties) Appellant held on March Suessmann were 2004 in Circuit complaint February filed his initial added, in Mary’s County. first amended Court for St. He 2, complaint on March 2004. The complaint, Appellant Care Maryland to putative was as a class action. Pursuant filed (2003, Cum.Supp.) § 2003 12-203 of the Election Law Code Article,2 granted special and a requested were appellants otherwise, opin- Except the reference in this 1. where context indicates that, "judicial,” e.g., to which is candidates or ion elections, always Maryland will almost denote the circuit courts. indicated, statutory references in this 2. Unless otherwise all future opinion provisions to of the shall be in the Election Law Article (2003, Maryland Cum.Supp.). Code 2003 three-judge panel to hear their panel claims.3 The chair parties testimony unnecessary, advised the was no and objected.4 one a days three-judge Six after before the hearing (in on March panel virtually findings which no factual made), were Court its all ruling Circuit issued denying requested by appellants.5 relief Pursuant appel- Court,6 appeal lants noted to this timely requesting expedit- ed review the Circuit Court’s decision order that we might consider whether election proce- dures violated the State Federal Constitutions.

II. Of all judges Maryland on judiciary, only those court circuit face the of a prospect contested election. vacancy on While one the circuit courts is and initially provides: 3. Section 12-203 “(a) general. proceeding In under this subtitle shall conducted —A Rules, except accordance with the that: (1) proceeding jury shall be heard and decided without a and expeditiously require; as as circumstances (2) request sponte, of a on sua the chief administrative judge may assign of the three-judge circuit court the case panel to a judges; of circuit court and appeal directly Appeals an shall be taken to the Court of within days of the of the date decision of the circuit court.

(b) Expedited appeal. Appeals give priority Court shall hear —The (a)(3) appeal brought decide under subsection this section expeditiously require.” as as the circumstances during hearing, 4. On ruling several occasions without matter, panel inquired parties respective whether the parties and the successful candidate nominees should have joined necessary parties been light to this action. of the Circuit holding holding, Court and our we need address not this issue. Circuit Court ruled the 12-202 claim failed because was venue statute, improper, appellants standing because lacked under the improper. because class panel certification was But the also reached merits, assuming arguendo procedural that these defects did bar appellants' disposition unnecessary action. Our of this case makes address the issues of class certification and venue. 12, 2004, plaintiffs 6. On appeals March noted to both the Court of Special Appeals and On plaintiffs Court. March filed certiorari, petition granted. writ which this Court

707 full or her first governor, after his filled the temporarily must judge a circuit court vacancy, from the date year for a term judgeship win a election to retain general 5; IV, §§ 3 and Maryland, Art. years. fifteen Constitution (1948). Boone, 606, 190 Md. 59 A.2d 506 Hillman v. see often appointed by governor Although candidates faced increasingly they occasionally unopposed, run from who wish to ascend unappointed lawyers opposition elections, candidates bench. In these contested every for almost judgeship, for court like candidates a circuit office, place general first obtain a on the other elected must to be majority ballot and then a vote popular election elected.7 step becoming popularly-elected toward a

The antecedent then, spot general a on judge, earning court is circuit routes provides ballot. election law two election to be a common method is obtaining spot. such The less signatures by petition, requires obtaining nominated which voters, § registered of a number of see 5-703. requisite of a common is to nomination much more method secure the winning primary state principal political party by party’s § A county court sits. See 5-701. election where the one which there two at principal political only —of l-101(kk), time, historically § see and which have consisted stat- Republican required by Democratic Parties —is its a public using primary ute to nominate candidates office see in turn its nomi- system, election which entitles general to an automatic election ballot. spot nees Overwhelmingly, winning preferred ballot, majority access route to the and the court in this judges fifteen-year way. circuit obtain terms

Described as nominat officially supervised party “an Calvert, State Bd. v. ing procedure,” Admin. Md. (1974), political primary largely

327 A.2d rare, possible pursuant 5-704 Law It is but of the Election Article, candidate, potentiality to be elected as a write-in not at issue opinion today. in our which, regulated by Maryland election for sets example, law— votes, the date of the and primary prohibits the use write-in Nevertheless, §§ 8-201 and 8-205. primary elections are Government, wholly creatures of the must State the State governance share the of such with political party elections from which primaries are born. See Democrat California Jones, 567, 572-573, Party 2402, 2407, ic v. 530 U.S. 120 S.Ct. (2000); Geartner, 147 L.Ed.2d 502 Hennegan v. 186 Md. cf. 551, 556, 393, 47 A.2d (noting Legislature “the elections, has to power regulate primary subject create and only to such as in prohibition may be found the State Constitu tion, subject Congressional as to to any prohibi elections Constitution”). Thus, tions in the Federal while State law elections, governs specific of primary facets those which are by left untouched remain within authority State principal political to parties determine. facet,

One such to our inquiry today, central is the qualifications eligible primary voters. The most basic and qualification intuitive for a in a party primary voter is the requirement the voter be a member of that party. While requirement such a is not expressly mandated the State— permitting political party voting to authorize to rights it, those who are with Tashjian Republican unaffiliated cf. Connecticut, 544, Party 479 U.S. 107 S.Ct. 93 L.Ed.2d 514 (1986) historically, two in principal parties Maryland — voting rights respective restricted their primaries Calvert, registered their own members. See 272 Md. at 677- 327 A.2d at 300 (quoting Hennegan, 186 Md. at 396). A.2d at Code is silent as to question may

who in a primary vote thereby leaving principal political decision parties. Repub Neither the lican nor Party Maryland Democratic permits unaffiliated voters to participate primary elections. The restriction primary vote members to all applies primary including primary elections for circuit court judge- elections— In ships. this respect primary elections are identical other office. three public other primary elections with however, differ, in accordance judicial elections respects, in a First, principal law: candidates State princi- with the not be affiliated primary election need party’s 5-203(b). offi- candidate example, For pal party. Party may cially registered Republican as member election. Sec- Party’s primary a candidate the Democratic ond, primary in the candidate candidates file time. at the same parties principal political both 5-203(b) result, often judicial candidates §§ 5-706. As a in one could lose “cross-file” in two elections and to the attain access party’s primary yet winning party’s primary other election. election ballot ballot, Third, on the election general unlike other nominees on the election designated candidates of regardless of any political party, ballot the nominee § As shall 9-210(g)(3). won. we primary which the candidate see, issue consider distinctions crucial appellants these today. before the Court sixty years, requirement primary

For the last in the in order vote voters be members ap- today. Appellants, has primary unchallenged been —until procedures, by primary election parently aggrieved these of claim that and exclusion party-imposed State-endorsed from primary unaffiliated voters like themselves candidates both Federal violates their State rights. constitutional appellants

In their first amended asserted sever- complaint, of of purposes al causes action which will reformulate we into of clarity major by three: a cause action created State purpose law for the of unlawful election remedying election outcomes; Constitution; and of action cause under State of under law Federal Constitu- a cause action federal and the tion.

First, specialized claim under State appellants assert § 12-202 Law law. Pursuant of the Election Article, circumstances, a exigent registered under certain

710 may voter seek relief from an unlawful “act or omis- 12-202(a). relating § sion to an election.” Such relief an include the voidance of as a already-held as well judicially election. Appellants instituted new See 12-204. 2, void requested the Circuit Court the March 2004 judicial primary enjoin elections and from issuing State (which certificates of nomination the winners would have the principal preventing year’s judicial effect of primary from being officially designated winners the nominees of the principal parties).

Second, appellants of allege violations and 249 of Articles 78 which Rights, guarantee Declaration a Mary- citizen’s right protection land to vote and under equal laws. For alleged these violations offi- State election cials, appellants requested declaratory judgment perma- injunctive practice nent relief from the of excluding unaffiliat- ed from voters elections.

Finally, appellants’- federal claim arises 42 under U.S.C. 1983, which explicit of action creates cause for violations Constitution) (including law federal the Federal under color 473, law. v. Pape, state See Monroe 365 U.S. S.Ct. 81 (1961), 5 492 L.Ed.2d overruled on grounds other Monell v. York, Dep’t City Soc. Serv. New 98 U.S. (1978). Appellants S.Ct. L.Ed.2d allege State, law, under color of state them denied their fundamental right protection to vote and equal under the laws guaranteed by to them the Fourteenth Amendment. 7 Maryland Rights of the provides Article Declaration of as follows: right People the participate Legislature "That of the to in the is the Government; security liberty best of and the of all foundation free for purpose, ought frequent; every to be free and Constitution, having qualifications prescribed by ought citizen the the right suffrage.”

to of Rights 24 of Maryland provides 9. Article Declaration of as follows: ought no imprisoned "That man be taken to or or of disseized his freehold, outlawed, exiled, or, privileges, any liberties or or or manner, life, destroyed, deprived liberty property, by of his or but judgment peers, of his the Law the land.”

7H III. first to claim relating appellants’ first the issues

We address all denying for relief explain § our reasons under 12-202 and 2, 2004. April dated in this Court’s Order on took judicial challenges to elections governing The laws Mary- ago when shape modern almost two decades their results review of election legislature revisited land 242, Md. 455 295 Duffy Conaway, to response opinion our (1983). provisions 955 we held certain Duffy, A.2d a “non- the courts laws bestowed on Maryland election of Pow- (Separation violation of Article 8 function in judicial” 262-263, ers) Id. at Rights. of the Declaration Maryland see, 965; Res. v. Linchester e.g., Dep’t A.2d Nat. 455 at (1975). 211, The 274 Md. 334 A.2d Corp., & Gravel Sand for process greatly simplifying Legislature responded permitting in court and the courts contesting elections disputes. changes These final decisions election render relating laws unify to correct and attempt were previously some of which had allowed disputes, election 260, 295 Md. at advisory opinions. Duffy, See courts render 455 A.2d at 964. laws, see changes Maryland to the resulting 755, 1, ch. at fashioned a Maryland Laws outcomes, action for contesting cause of

particular substantively as the law was which have been retained even as of the and revised Title Subtitle Election recodified Report Law of the Commission generally Article. See (in Bill bill for cross- Revise the Election Code file Senate (available as Bill 127 State filed House Services)). This default general subtitle Legislative 12-201 of the judicial review contested elections. Section subtitle; about the scope subtitle statement action; § § 12-202 out the cause of 12-203 describes lays under the subti- brought suits special procedures tle; may types 12-204 remedies court describes nature of type are with the grant relief. Our concerns subtitle, particularly brought of claim under the 712

§ 12-202 which provides claim, elements such a with whether appellants’ action fits within the subtitle.

A. We turn to question appellants’ standing to § raise a 12-202 challenge. Our focus in deciding whether a has litigant standing sue “on the seeking get his complaint before the court and not on the issues he wishes to Bank, adjudicated,” have Maryland Nat. 288 Md. Pollokoff v. 485, 497, Cohen, 1201, (1980) 418 A.2d (citing Flast v. 1208 392 83, 99, 1942, 1952, U.S. 88 (1968)). S.Ct. 20 L.Ed.2d Although literally we are focusing here on who litigants are and not what issues being litigated, in reality, judice case sub standing question is about statutory interpretation §of 12-202 and whether the statute contem plates litigants appellants like availing themselves its reme dies, i.e., See, e.g., Mid-Atlantic v. Public statutory standing. Service, 361 Md. 760 A.2d 1087 (holding utility trade association had statutory standing to seek re view under Public Code); Utilities Article of Maryland cf. Steel Environment, Co. Citizens Better 523 U.S. 96-97, 1003, 1013, (1998) (distin S.Ct. 140 L.Ed.2d 210 guishing statutory between standing Article III standing courts). in the federal In addition to limiting types see cover, issues the § subtitle would the subtitle also limits to “registered voters” types of litigants who to get 12-202(a). seek their complaint § before the court. For instance, a year-old fifteen would have no statutory standing to assert a claim under 12-202 because a minor cannot be a registered voter.

In the judice, case sub the Circuit Court found that appellants did not statutory standing to assert cause of action under 12-202 they because not registered were vot ers. The court based its decision on the fact that appellants were not registered party in whose voters primary they wanted to vote. The court held, aas matter of statutory interpretation, the Legislature did not intend pro- procedure invoke the situation to litigants appellants’ 12-203, ie., judges of circuit three-judge §in a panel for vided review in this Court. with expedited l-101(mm) a voter” “registered defines Section that the term by stating Law Article the Election purposes is on a list name not include individual whose “does Elections, 377 v. Board Party voters.” See Green inactive (2003). not included are Appellants Md. 832 A.2d are voters, they that and record shows a list of inactive voters, as unaffiliated with either registered albeit lawfully 12-202(a) distinguish not § pai'ty. Because does principal or, matter, no for that by party among registered voters standing sue under has to party, any registered voter in a statute, particular and need not be a voter registered one a registered purposes to be voter political party considered l-101(mm) therefore, §§ 1- or, § Because §of 12-202. 12-202(a) 101(mm) we unambiguous, and clear and facially State, Price v. plain language statutes. See apply (2003). 378, 387, 1221, 1226 The Circuit 835 A.2d Md. registered Court were holding appellants erred inde registering § 12-202 virtue of their under voters statu hold that have pendents appellants unaffiliated. We out in tory standing procedure to assert laid § 12- statutory standing explicitly granted pursuant 202(a) to registered voters.

B. standing, we though appellants Even find they whether have satisfied remains be determined §in 12-202. cause of action laid out elements 12-202(a) as follows: provides Section “(a) remedy and general. timely adequate no other —If article, provided by registered voter seek from act to an any relating relief or omission held, grounds or not the has been on the whether act or that the omission:

(1) is inconsistent with this or other applicable article law process; elections may change changed has the outcome of the elec- tion.” 12-202(a)

Section sets forth four elements chal- to an lenge The first is the outcome. element absence other any “timely adequate remedy ... provided by article.” Id. The Election [the is an “act Law] second element Id. relating or omission to an election.” third element requires showing the act or omission unlawful according to applicable “law to the 12- process.” 202(a)(1). finally, And requires the fourth element showing that the act “may or omission or has change changed the 12-202(a)(2). § outcome” of being the election challenged. If appellants plead did not or cannot prove any of these ele- ments, their complaint granted § cannot be relief under 12- arguendo that

Assuming appellants can satisfy ele one, three, they ments two and fail on Appel element four. lants cannot show that is a probability there substantial outcome of the election would changed. have been regard element, 12-202(a)(2),

With to the fourth § appel- argue: lants sole remaining question §

“The under 12-202 is whether the challenged may acts changed the outcome of the election.... Because give, make sense unaffili- option ated voters the to chose which party’s primary they in, will vote it makes to analyze sense likelihood altering the if outcome the election were conducted [in nonpartisan primary]----If the Democratic Republican votes the Anne County primary Arundel aggregated, margin of difference between winning and losing 1,201 ... (12,779-11,598). candidate votes This approx- imately 42,994 three percent unaffiliated voters county, thereby only a requiring relatively small turnout alter outcome the election.” with the disagrees brief, 28-29. The State Appellants’ 12-202(a)(2) contends § interpretation appellants’ out a to make 12-202(a)(2) litigants permit read to cannot be a voter would as to how speculation mere upon claim based re- no evidence presented appellants Because have voted. outcome, the State changed of a the likelihood garding § 12-202. under four to establish element they failed contends agree. We illegal an act requires of the statute language

The outcome of the changed or has “may change omission “has 12-202(a)(2). act that of an meaning election.” but for is clear: of an election changed” the outcome would have been omission, results act or the election illegal different. As matter. is a different “may change” meaning

But the statutory predecessor, interpreting the we observed when (1957, § 19—which Art. Repl.Vol.) Maryland Code subtitle, unqualified “[T]he is identical—to essentially from however, ranges spectrum over a ‘might’ ‘may’], [or term which, depending probabilities possibility high the barest Snyder context, of an absolute.” just could be short 411, 425, (“Snyder 520 A.2d Glusing, 308 Md. ”). words, changed has alleging if that an act II In other percent probability alleging a hundred election outcome means different, act, would have been but for the the outcome that al must be outcome changed of a probability what an act have that satisfy requirement in the leged order percent? Ten percent? an election outcome? One changed terms, pragmatic Ninety percent? Fifty-one percent? now before us. question 12-202(a)(2) § contem- acknowledge that appellants Even a one more than possibility, than mere theoretical plates more why they That is changed of a outcome. probability, percent to one respect § 12-202 claim with voluntarily withdrew their they challenging.10 were Because of the § 12- original complaint alleged of action under Appellants’ a cause lopsided Mary's Counties. St. and Anne Arundel After both lopsided results appel- lants that they “credibly” admitted could not claim that allow- ing might the unaffiliated voters to vote changed have brief, outcome of the at 5. Appellants’ They election. rea- in by soned the incumbent won judges those elections 4,000 over with a turnout of 34% of registered, party- votes affiliated They change voters. then calculated that races, outcome of those 62% of registered unaffiliated voters vote, required would be with 100% of nearly voting them losing a candidate. Because those circumstances seemed un- likely, appellants challenge withdrew their to that in Mary’s County. St. sure,

To appellants’ voluntary withdrawal of a claim that they unilaterally says nothing considered meritless about the actual meaning phrase “may changed.” 12-202(a)(2)’s But it does-indicate the intuition that correct demand has “May change” real bite. does not mean the even, possibility, probability barest a 1% of a change, assert, appellants a “reasonable likelihood of affecting brief, Appellants’ outcome.” See at 5. “Reasonable likelihood” is a thin pulled test out of air and has no appellants basis past our dealing challenges cases with to election outcomes. Nor key question does answer of how 202(a)(2). probable changed a to satisfy outcome must be 12— Our first this type encounter with of issue involved referendum election that sanitary Allega created district McGill, ny County. Wilkinson 192 Md. 64 A.2d 266 (1949). The act creating passed by the district margin only 16 Twenty-three votes. illegal. counted votes were If illegal votes were discounted and 16 or had more been act, favor gone the election would have way. other margin Even the face of a as small as we held that the upon complainants burden desiring nullify the election results could not be satisfied arguing there exists a possibility that the votes so were cast: 3, 2004, Mary's County, they

election results for St. on March voluntari- ly withdrew their primary 12-202 claim for that election.

717 by arguing upon that the Court cannot thrust burden “They for the that were cast a such votes probability that there is least must or at They prove, having majority. side If direct voted. how voters illegal attempt prove, themselves, illegal from voters proof cannot be obtained may be offered. nature circumstantial other evidence proof.” event, produce an In there must be effort any added). Id., at 274 (emphasis at 64 A.2d over- will not Wilkinson is that court policy enunciated that hard evidence already without some turn an held election Spec- in a manner. particular have been cast the votes would cast, if it was so even votes would have been ulating one way of 23 votes went that 16 plausible supposing as another, summary judgment will not survive instead of who appellants, for can be no less Surely motion. the burden of, not but voting on manner of speculated have of votes. thousands another rejection our

We relied Wilkinson explain on anof changed” the outcome “may act or omission Elections, 1,Md. 224 A.2d McNulty Board of (1966). were counted as In a 136 votes primary they no cast for the non-existent one because were voting McNulty, candidate on the “bottom line” of the ballot. cam- judicial challenge, had bringing candidate on the slogan under a his vote paigned requesting supporters Ms supposed “bottom line” that was where name was because illegal on to be on the ballot. to an error Due officials, placed name was part McNulty’s of election Board of Elections argued, second-to-bottom line. He and the probable intention of the unanimously agreed, McNulty, was to in which case he would have voters vote Id., Court, 7, 224 A.2d at 847. This won the election. rejected probability a reliance on overturn though, again to Wilkinson in which contrast there election outcome. intent, McNulty, the record was no evidence the voters’ of the bottom-line “probably” that was the intention showed who had under that McNulty campaigned voters to vote for 718 this, held, But

slogan. even we was to an insufficient overturn ones, election and institute new ask us do. appellants now to McNulty teaches that even 51%, a of of probability “more likely likelihood,” not” than or “reasonable will not to suffice overturn an election result and new institute elections.

Most recently, we once on again required elaborated Elections, Pelagatti v. Board level of probability Md. 343 of 425, (1996). 682 Judge A.2d 237 Eldridge, writing for the Court, that held “the challenging election results has of proving that the illegality changed the outcome the burden added). election.” Id. 441, at 682 A.2d at 245 (emphasis Significantly, Pelagatti rejected probability analysis altogether and simply foreclosed as a basis for overturning election Id. (stating that the “courts will not results. guess specu- late ‘resort to as to probability’ which candidate or which favored”). Instead, side an issue the invalid ballots a challenger his basing claim improperly counted ballots to actually changed would that need show the invalid ballots the outcome of the a arguably requiring certainty that the outcome was changed illegality. Although due to the Pelagatti, McNulty, like Wilkinson and was not an explicit interpretation 12-202, §of and McNul- along with Wilkinson ty, Pelagatti in pointing instructive us to a proper interpre- tation of the requisite probability § 12- anticipated 202(a)(2)’s language “may change.” By evincing en- against trenched common law policy overturning elections Maryland, a presumption from which this Court has never and Legislature wavered which the has given any never indication of disapproval, those portend high cases a bar for 12-202(a)(2). of § satisfaction Wilkinson, bar McNulty, and Pela- high enunciated

gatti Snyder I II Snyder applied § 12-202. These two us, cases are controlling to the issue for they before interpret 12-202, the statutory predecessor which is substantively identical to the current purposes statute for this discussion.11 In Snyder 548, Glusing, 307 Md. 515 A.2d (1957, through §§ In 19-1 19-5 Code 1986 Repl.Vol.) repealed replaced by Art. 33 were Title Subtitle 2 I), under suit (Snyder challenger brought that and we held predecessor statutory require challenger prove did not statute Id. been changed by illegality. had fact II, however, the lower Snyder after at 767-68. A.2d not demonstrat- plaintiffs court found that the had on remand have been would probability ed outcome sufficient today, us different, question before precise we considered the nullify court probability necessary degree election: 19-5(1) (1957, Art. 33 1986 Repl.Vol.) Code [Md.

“Section requires petitioner a a contested (superseded) ] of complained that the violation only to demonstrate case changed Legisla- ‘might’ Obviously have the outcome. an were the impossible ture would have created burden complained that petitioner required show the violation term, unqualified the outcome of the election. The changed however, a from the barest ranges spectrum over ‘might,’ which, high probabilities depending possibility 585, § 2. Sec- Election Law 1998 Md. ch. current Article. Laws provided, part, as tions 19-1 to 19-5 in relevant follows: " § Applicability. 19-1. applies arising any any election conduct This subtitle issue pursuant to this article. § Challenges. 19-2. Judicial article, remedy provided timely adequate If and this no other filing petition § 19-3 provisions a in accordance with the and subtitle, registered any any voter seek relief from act relating whether the election has omission an or not held, grounds on the been that act omission: (1) applicable inconsistent with this article or other law to the Is process; (2) May change changed or have the outcome of the election. § Judgment. 19-5. evidence, finding, convincing Upon upon based clear and that the materially rights affected act or omission involved interested parties purity process or the the elections and: held, Might changed already have the outcome of an election shall: the court Office, Offices, (i) Declare Null And Void The Election The For Questions Question, Or Involved And Order The Election Be That Court; By Again On A Date Set Or Held (ii) any remedy." provide adequate Order other will relief that an context, just could be short of an 19-5 absolute. Section confínes this that range by requiring finding be ‘based upon clear and ... convincing evidence.’ Consequently, petitioner proves that election law violation ‘might have changed the outcome’ when the facts demonstrate sub- stantial probability might outcome have been changed.” added).

308 Md. at 520 A.2d at 357 (emphasis This reasoning analysis remain both sound and applicable to the statute’s almost identical descendent: To sustain a challenge pursuant §to the litigant evidence, must prove, by convincing clear and a substantial probability that the outcome would have been but for different the illegality. This is probability the level of anticipated by 12-202(a)(2)’s requirement challenge be based on grounds that an action illegal “may or has change changed the outcome of the A election.” substantial probabili ty, while less than a percent, hundred is significantly more than “more than likely not” and must proven by clear and 12-204(d) convincing evidence. See (stating the stan evidence). dard proof and convincing clear Appellants met this burden. Even were we to that all true, assume of appellants’ allegations are that “only a relatively small turnout unaffiliated [of voters would be neces- sary] to alter the outcome of the primary] [March election,” appellants not alleged single have a fact that would point to how those unaffiliated voters would have voted even that they would have for a voted different candidate other than the winner. Nor they alleged any have facts pointing to a turnout of unaffiliated voters sufficient to alter judicial elections, the relying instead on conclusory the mathe- matical observation that a “relatively small turnout” would be required. The appellants presented have not anything beyond speculation mere as to how unaffiliated voters would have voted or how the election would have been changed.12 Appellants single 12. submitted a Gregory affidavit from Mr. Care that right stated he was denied the primary to vote the of elec- complexities of the understanding facile Appellants’ within the to draw a contention tion law are insufficient Indeed, rely only pure on appellants § 12-202. contours of changed, without might have that an election been speculation test, that satisfy own sufficient their alleging facts even outcome, much a changed was reasonable likelihood there probability. less a substantial understanding of sum, in their appellants are incorrect 202(a)(2), defective. complaint consequently

§ and their 12— entitling § the thereby falls A that under complaint must judges, of circuit court three-judge panel party the changed or omission could have more than the act allege must, instead, that allege A party election. outcome outcome exists substantial probability there changed. For reasons stated election would have been 12-202(a)(2). above, satisfy not Because complaint does element, complaint appellants satisfy did not this essential should been dismissed.

IV.

A. turn now to claims for relief under the appellants’ We question Constitution and Maryland U.S.C. Fourteenth Maryland may, whether consistent with the 7 and 24 to the Federal Constitution and Articles Amendment Rights, right Declaration of restrict vote in a primary election members holding the election. judi- restricting vote Appellants argue imper- cial to registered party infringes candidates members voting of a class of voters— missibly rights certain with a specifically, those voters who choose to affiliate designated has principal political party State —because if They “nonpartisan.” reason County party. he with for Anne Arundel because was unaffiliated either sitting judges.” It he to “wish[ed] stated vote to retain 722 provided nonpartisan for a judicial primary

State was constitutionally permit State bound to vot- registered all ers, including nonpartisans, to vote such a primary. They vote, contend that to right as hindrance to fundamental ban against subject unaffiliated voters must be to strict scrutiny equal protection analysis and struck down.

Importantly, appellants concede that had State partisan chosen a elections, format primary appel lants would have no claim constitutional for redress and the parties permit only would be free to to registered members primaries. vote This is more than a mere concession see Spencer v. Board of law, Court, which does not bind this Pharmacy, 380 Md. 515, 523, 341, (2004), 846 A.2d 345-46 but recognition rather a indisputable First Amendment See, e.g., Cali rights political parties themselves retain. Jones, Party Democratic v. 567, 530 U.S. 120 S.Ct. fornia 2402, (2000) 147 L.Ed.2d 502 (holding that “blan California’s primary,” ket requiring parties open prima to their to wholly ries voters unaffiliated with the violated party, Amendment); Tashjian v. Republican Party First Connect icut, (1986) 479 93 U.S. 107 S.Ct. L.Ed.2d 514 (holding statute, that Connecticut’s closed primary requiring political parties rights restrict voting those it, Amendment); affiliated with Nader violated the First Schaffer, (D.Conn.), summarily F.Supp. aff'd, 516, 50 U.S. 97 S.Ct. L.Ed.2d 602 (holding that plaintiffs cannot assert right constitutional vote particular party’s primary they when to register refuse as of that members primary). issue,

Before reaching the constitutional will we consider the i.e., basic assumption underpinning appellants’ argument, Maryland’s judicial primary “nonpartisan.” elections are Court, Circuit disagreeing with appellants, found Maryland’s “in a partisan process, essence so nonpartisan [appellants] appellants’ desire.” Because depends case upon elections being nonpartisan, they vigorously dispute finding as clear If error. argument partisan, are then primary appellants’ elections that, in a terms, they partisan collapses on its own concede rolls voting free to restrict their political parties are primary, members, primary as in their registered political parties do offices, Appellants such as elections for other Governor. believe, however, office fundamental- that elections must from elections for Governor. We decide ly are different so, so judicial elections are distin- this is whether whether other, they obviously partisan from guishable nonpartisan. properly labeled of as to whether an standard review applicable unclear, case, is is but we need not any nonpartisan factual, question legal, decide the issue is or a mixed whether because, review, of any of standard law and fact under correct its Circuit Court was determination. not word “nonpar-

The Election Law Article does define the tisan,” nor is it defined elsewhere Code of Maryland Regulations. “nonpartisan” ap- Code The term Article, of Law pears provisions three the Election but only appellants not at all in contexts referred to as us Thus, of of nonpartisan evidence nature elections. non- appellants’ best evidence that the State has established fact that laws partisan pro- elections—the the State’s vide for not exist. them —does

Instead, provisions nonpartisanship that do mention strongly opposite 8 of the suggest view. Title Subtitle Article, “nonpartisan” Election Law where the term first boards of appears, covers elections for members of the edu- Elections,” cation. “Nonpartisan entitled re- Section quires that the boards “be elected on members education 802(a)(l)(i). § nonpartisan basis.” The statute does 8— basis,” but upon meaning “nonpartisan clearly elaborate applies election of board The nomination members. § is for in the 8- provided provision, candidates next 802(a)(l)(ii), which reads as follows:

“In a election to nominate primary board education candidates, registered regardless any county, voter

party affiliation affiliation, or lack of party eligible vote in those contests for nomination.” that, It 8-802(a)(l)(i)’s seems obvious just § is to purpose election, 8-802(a)(l)(ii)’s a nonpartisan mandate pur- pose is to a nonpartisan Thus, mandate primary election. 8-802(a)(l)(ii) provides us with a statutory useful depiction of what is by nonpartisan meant primary. The inescapable conclusion is that truly when the State a nonparti- establishes san primary, characterized fact voters are eligible Indeed, to vote in it. unaffiliated implies statute that a nonpartisan primary defined ability unaffiliated voters to vote If primary. this be so, political then the primaries circuit nominating court judges cannot, definition, be nonpartisan since unaffiliated voters ineligible are vote them.

Furthermore, 8-802(a)(2)(i)-(v)13 § states that candidates for the boards of education “shall” not designated be affiliated to any party with respect to their filing certificates for candidacy, ballot, certification to ballot, appearance on the on, being nomination, voted election. While candi dates, candidates, like board of education do not need be 203(b), § affiliated with the party, see and do not party have 5— designations ballot, on general § see 210(g)(3), 9— there is no separate affirmative mandate for candi dates to refrain from party affiliation in all aspects of the election, 8-802(a)(2) as is made evident by for board of Also, education candidates. in contrast to vacancies created by board member they candidates after won the primary but before the vacancies the ballot occur ring after candidates have won the primary election 8-802(a)(2) provides Section as follows: shall, “Candidates for election to boards of party education without

designation regard party affiliation: (i) candidacy; file certificates of (ii) ballot; be certified to the (iii) ballot; appear on the (iv) on; be voted (v) be nominated and elected.” the same by the central committee14 are filled Compare vacating the nomination. of the individual party sum, Article Law Election § 8-805 5-1004. with board of nonpartisan distinguishing key features contemplates candidates, from elections education least, nonparti understanding of that its very at the signaling, view. comport appellants’ does not with san Election in the “nonpartisan” The second reference evidence, sup which is also provides yet Law Article more case, are judicial primaries of this in the record ported 9-206(a)(5), delineating the affairs. Section nonpartisan ballots, that “the name requires format for primary ballot’, appli ‘nonpartisan or the words political party ” added), of every at printed top cable (emphasis Republican ballot. The ballots used primary election only contain primaries and Democratic utilize format and whereas top, appropriate political the name utilize the ballots used the boards education “Nonpartisan top. Ballot” at designation ballot with the only Republi on the The candidates for circuit court listed ballots, one. primary nonpartisan can Democratic nomi practice confining of a separately There is no evidence nonpartisan ballot as nees for the circuit court to a so-called 9-206(a)(5); that the any § nor is evidence by mandated there political that the Board of Elections has ever demanded State nomi a ballot for circuit court parties nonpartisan use their Thus, the maintains a continu nees. State Board Elections 9-206(a)(5) §of ing practice interpretation and that views affairs, is a level of judicial primaries partisan as which due Md. Hosp., See Falik v. Prince George’s deference. that consistent (noting 588 A.2d responsible administrative ad agency construction to ministering weight). statute entitled considerable requires political party 14. The Election Law Article that each County §§ State See 4-201 4-202. Central Committee. and statutory “nonpartisan” The third to in reference the Elec- tion Law Article confirms already substantial evidence the State has not provided nonpartisan elec- specific tions. Section 9-210 forth a arrangement sets for the general ballots of the mandating the various public party statutorily offices be listed on the ballot order, predetermined beginning with the office President States, 210(a)(l)(i). § the United to The sixth office be 9— listed on general judicial offices, ballot are includ- 9-210(a)(6). ing § circuit courts. ninth office listed on the election ballot are “offices filled 9-210(a)(9). nonpartisan election.” The statute does not equate judicial with elections those that are nonpartisan; indeed, it opposite by does the exact excluding offices from category nonpartisan.

As recognition further that the election process partisan, the Maryland Code of Judicial Conduct and the Code Conduct for Judicial Appointees permits judges lawyers engage who are candidates to in “partisan political activity,” in contrast to a prohibition broad on sitting judges from engag- activities. See Md. Rule ing political 16-813, 5B; Canon Rule Canon 5B. Finally, when no one as a files for an candidate available circuit court position a particular party primary, the party’s county central fill committee See 901(d). vacancy. 5—

Appellants identify they three characteristics First, believe establish nonpartisan: judi cial required candidates are not to be affiliated with a particu lar order be a in its primary,15 candidate Appellants "[u]nique among also public assert that all candidates for office, Maryland requires political parties permit candidates for they office run in the if even are not members brief, party. added). Appellants' 5-203].” 7 (emphasis [§ While we express correct, opinion no as to whether this assertion is we note that cited, appellants support, authority have as direct that does not stand 5-203(b)(l) proposition. reading for their A careful of that it reveals n exempts judicial requirement they regis- from the candidates party tered of nominating primary; members them in its it does not

727 203(b); second, “cross-file” as judicial candidates § 5— political of both principal into the elections primary candidates 5-203(b) third, 5-706; time, §§ and and the same parties any nominee of designated are not as the judicial candidates ballot, of regardless on the party won, § 9-210(g)(3). Appellants primary which the candidate 115, A.2d Md. 48 Higinbothom, on v. 187 rely Smith 754, (1946), support position. 763 as for their sure, To be unpersuasive. find these arguments

We the truth statutory by appellants reflect provisions cited Higinbothom, v. statement this Court made Smith is to out keep partisanship “the of the State public policy 133, 48 ...” Id. at judges possible as the election far added). 763 But that transform (emphasis A.2d at does into Maryland’s meticulously process crafted elections constitutionally is not barred nonpartisan one. State from evincing policy nonpartisanship elections process itself an keeping while nevertheless the election inher affair; long- nor ently partisan relying is it barred from ac infrastructure of a to political party primary established to commodate the election candidates desires be selected apart Party on bases from partisan politics. Republican See White, 765, 795, 2528, 122 2545- Minnesota v. 536 U.S. S.Ct. 46, J., (Kennedy, concurring) (noting L.Ed.2d to [open that “States are free choose confirmation”); than ... appointment offices] rather and Cali 572, 120 Party, Democratic 530 U.S. at S.Ct. at 2406-07 fornia (recognizing major that States to structur play role elections); elections, ing monitoring including 452, 461-462, Gregory Ashcroft, 501 111 S.Ct. U.S. (1991) (stating 115 L.Ed.2d 410 that the Framers of the keep Constitution intended States themselves elections); power regulate Hennegan, 186 Md. at A.2d at 395 (stating regulate the State authorized Baker, elections); legislate primary Anderson v. 23 Md.

require political parties accept who are candidates unaffiliat- primaries. ed with the in their

531, 619 (noting that right regulate the elective State). is franchise an absolute and unqualified right of the Indeed, there is historical that this is what precisely evidence was intended.16 Finally, when the State wishes to a establish election, it nonpartisan has proven by knows how its creation of explicitly nonpartisan school board elections. recently 16. Justice history O’Connor has recounted some of the of state judicial elections: currently employ "... 39 States some form of elections for courts, courts, appellate general jurisdiction their trial or both. Judi- always prevalent. cial elections were not so The first 29 States adopted selecting judges Union methods for that did not involve however, popular explains, beginning elections. As the Court with Georgia began adopting systems States for elections. 1850’s, From the part 1830's until the of the Jacksonian movement office, greater popular toward public control of this trend accelerat- ed, War, by and the Civil judges. By of the 34 States elected their however, beginning century, judiciaries of the 20th elected in- creasingly incompetent came to be corrupt, viewed as partisan judicial criticism of elections mounted. Roscoe gave speech Pound a to the American Bar Association in which he 'compelling judges claimed that politicians, many to become jurisdictions destroyed respect has almost the traditional for the bench.' concerns, response "In adopted to such some States a modified system judicial selection that became known as the Missouri Plan (because adopt Missouri was the first State to it for most of its Plan, judicial posts). judges Under the appointed Missouri a official, high generally put together elected from a list of nominees commission, nonpartisan nominating subsequently and then stand unopposed retention elections in which voters are asked whether recalled, judges judge should be If vacancy recalled. through filled a new appointment. system nomination and This obviously judicial impartiality, reduces threats to even if it does not popular pressure judges. eliminate all currently The Missouri Plan is used to fill at least some offices in 15 States. States, however, "Thirty-one popular still use elections to select some appellate general jurisdiction or all of their judges, trial court and/or these, periodically. who thereafter run for slightly reelection Of elections, nonpartisan more than half use partisan and the rest use elections." White, Republican Party Minnesota v. 536 U.S. at 122 S.Ct. (2002) (O'Connor, J., (citations omitted). concurring) at 2543-44 Al- though Maryland’s plan judges for the election of circuit court does not Plan," conform to the so-called Maryland, "Missouri it is clear that like states, many sought compromise has on the election of circuit court judges. appellate judges Maryland are elected in accordance with the Missouri Plan. so in the context It has not done remain, assertions to courts, appellants despite which

circuit contrary, partisan affairs.

B. the'statutory effect of assert that combined Appellants State, keep which seek policies and stated provisions elections, of works an unconstitutional out partisanship vote, to of the right regardless on whether appellants’ burden for format partisan nonpartisan a State has established important is less perspective, From judicial elections. the to do it established the intended when what State func- system which the election than the manner elections tions vis-a-vis unaffiliated voters. Maryland’s procedure contend that

Appellants a con impinge upon functions to fundamental electing judges be to “strict subjected and should right stitutional to scrutiny.” challenge legislation equal a is based When “requires the Amendment grounds, Fourteenth protection when the only of a classification scrutiny legislative strict of a with the exercise impermissibly classification interferes to right peculiar disadvantage the operates fundamental Murgia, suspect a class.” Massachusetts Bd. Retirement (1976). 312, 2562, 520 427 U.S. L.Ed.2d S.Ct. Here, to right claim that their fundamental vote appellants they to do not political party elections of which belong being upon by Maryland impermissibly infringed Thus, laws, reason, to they Maryland’s laws. they extent do not allow unaffiliated voters vote elections, subjected scrutiny must to strict judicial primary and struck down. not responds scrutiny analysis

The State strict does that the Supreme precedent because Court makes clear apply a burden to vote imposes right mere fact a law on the does Instead, subjected scrutiny. mean law must be to strict reviewing court applies more standard in which the flexible magnitude injury asserted weighs the character and against the rights protected by fundamental the Constitution. As explained by Supreme Court: beyond ‘voting

“It is cavil is of most fundamental It significance under our constitutional does not structure.’ follow, however, right that the to vote in any manner and right for political purposes through associate are provides ballot absolute. The Constitution that States Times, and prescribe holding ‘[t]he Places Manner I, 4,§ and Representatives,’ Elections Senators Art. cl. recognized the Court and therefore has retain States sense, power regulate their own elections. Common law, compels as well constitutional the conclusion that government must active role in play structuring elec- tions; matter, ‘as practical must there be a substantial if regulation they be fair honest and order, chaos, if some sort of than accompany rather is to processes.’ democratic impose

“Election laws will invariably some burden upon voters; code, provision Each of a individual ‘whether it governs voters, the registration qualifications candidates, selection and eligibility voting process the itself, inevitably affects—at least to some degree indi- —the right vidual’s to his to right vote and with associate others ends.’ to Consequently, subject every voting to regulation strict and to scrutiny require regula- that the tion narrowly tailored to a advance compelling state interest, as petitioner suggests, would the tie hands of seeking States to assure that elections operated equita- bly and efficiently....

“Instead, ... a more flexible A applies. standard court considering challenge a to a must weigh state law magnitude ‘the character and injury the asserted to the rights protected the First by and Fourteenth Amendments plaintiff the to against seeks vindicate’ ‘the precise put justifications forward interests the State for the rule,’ imposed its taking burden into consideration ‘the to extent which those interests make to necessary burden ” plaintiffs rights.’ the

731 Takushi, 428, 433-434, 112 Burdick v. 504 S.Ct. U.S. (1992) (citations omitted). 2063, 119 245 L.Ed.2d understanding we it clear that the State’s While think erroneous, correct is appellants’ law in this area is scrutiny or the turn strict upon not whether outcome does Instead, in Burdick applies. more flexible standard stated a appellants’ whether asserted key inquiry is fundamen- right place. tal scrutiny Both strict first has in Burdick only when State apply standard stated protected by or interest right burdened fundamental noted, rigor- Supreme “[TJhe As the Court has Constitution. law into of a state election inquiry propriety ousness our upon challenged regulation extent to which depends Id. at rights.” burdens First and Fourteenth Amendment added). (emphasis at 2063 S.Ct. Here, appellants “right assert the fundamental vote” not, an precisely burdened. But that accurate speaking, right. formulation do not claim appellants’ They asserted but right them of to vote deprived generally, the State has right has them of the vote deprived rather the State belong. do not they to which party one, They claim is a in the constitu- this interest fundamental tional sense of word. Supreme rejected the notion that explicitly Court has right nominating primary

there is a to vote fundamental belong: of a one not “As for the associa- to which does selecting group tional a candidate of a which ‘interest’ does that falls far short of a constitutional belong, one if right, fairly indeed it can even be characterized as Party, Democratic at interest.” 530 U.S. California n. 5. “The himself S.Ct. voter who feels disenfran- [by rights regis- chised primary voting the restriction join may That party simply party. members] tered should the choice, him to a hard but is not a put state-imposed his Id. at 584, 120 upon restriction freedom association.” Indeed, long Supreme S.Ct. 2413. before the Court’s Party, Democratic in re- decision this Court also California jected the notion that there exists a right to vote in the primary elections of a party to which one does not belong: “There is no right fundamental in any voter to in participate primaries or conventions of parties other than the one to which he belongs. Neither Article of the Declaration of Rights nor Section 1 of Article of the Constitution have any Hennegan, 186 Md. at such implication.” 559, 47 A.2d at 396. The thrust appellants’ argument is that the exclu sion of unaffiliated voters from partisan party primaries impingement on a fundamental but it right, just to happens strict survive scrutiny analysis. As both this Court Supreme indicated, Court clearly however, have is no there basis law for such a theory, appellants predictably do not any cite support short, cases to it. In appellants have no fundamental right vote in a principal party’s primary election.

Working from premise that there is no fundamen tal right to vote in primary elections of a party to which one does not belong, question arises whether State’s enunciated policies and promulgated laws somehow transform a previously non-fundamental “desire” into a funda viz., right,17 mental right fundamental vote primary election of a political party which one does not belong when the election laws permit the election of judges (1) who are not with affiliated whose they (2) win; cross-file as candidates both parties; and will no party designation by their names on election ballot. Jones, Party Democratic 530 U.S. 120 S.Ct. California (2000), 147 L.Ed.2d 502 Supreme Court noted: "As for the selecting associational 'interest' the candidate of a group belong, to which one does not that falls far short of a constitu- right, tional if fairly indeed it can even be characterized as an interest. It has been described in our cases as a 'desire' —and rejected as a disregarding basis for right the First Amendment exclude.”

Id. at 573 n. 120 S.Ct. at 2407 n. 5. would such a transformation why see no reason

We had the might our be different take While answer effect. (such as system truly nonpartisan a election State established of school in 8 for the election that out Title Subtitle laid members), in to the we have no occasion decide board out, because, already pointed as the judice case mb we have in form a one electing judges partisan for remains procedure interest Having recognized legitimate the and in substance. out of partisanship in a policy keeping of the State abandoning long- far without the possible as as elections we con party primaries, of political infrastructure established goal do not violate attempts clude to achieve the State’s of either protection provisions the equal voters who decline simply Federal because some Constitutions in that join wish vote political party nevertheless in provisions the absence party’s primary. parti from apart law that other set elections in ones, right had to vote appellants san no fundamental presence do them party’s why we not see primaries; right wholly new and unheard fundamental should entail to vote. HARRELL, JJ.,

CATHELL and Concur. J.,

BELL, ELDRIDGE, C.J. and Dissent. CATHELL,

Concurring opinion by J. Court, I reluctantly concur with the result reached presented as parties. based as the limited issues they was process Because asserted that intended nonpartisan, they challenge partisan did not nature of themselves, fall arguments necessarily the elections their be- finding fore the of the Court the election process partisan. judges, actuality, circuit court way Because the issues we are not presented, were question able to address in this case the of the constitutionali- issue, ty judges. circuit That partisan court it, that, I see must I challenge. my await another note view, required process judges lor the election de- affiliation,

pends upon party permits any person, and that any whether not affiliated with party, be a candidate in party’s primary each but then him or process, denies her the right to vote for place themselves that would upon them the ballot raises serious questions I, especially considering provisions of Article 1 of Maryland section the Constitution that in provides rele- part “Every State, vant citizen ... who is a resident of the shall to ... be entitled vote at all to held in elections be this added). (emphasis view, State.” In this my constitutional language clear in absolutely any construing language Hen- Geartner, 551, negan 186 Md. 47 A.2d to contrary the not withstanding.1 Upon it proper challenge, me seems to that this Court would be hard to pressed hold (even that an election a primary) by conducted officials State State, in a on ballots facility, provided by State the times State, designated by the with qualifications the of the voters registration vis-a-vis created the State —is not a State election, regardless of what party’s primary may also be. that it may The fact be a election “shared” does not make it any less “State Election.” If .the political want parties protection from independent they should hold their voters — own elections and not have the State them conduct as view, In my State elections. provi- Federal constitutional them, sions and the cases interpreting controlling are not in light Maryland’s explicit requirements constitutional for all parties State elections. If the want private primaries, let pay them hold their own—and them well. Hennegan

1. The issue in did not involve election of circuit court judges, addressing and the present court there was not situation interprets prohibit voting where the State the law to a candidate from view, my regulate for himself. In the State does not have to party primaries, conduct but if it does it makes them State elections. independent In pervasive advent of was voters not as as it is apply language Hennegan now. To to the conduct of (a longer court); Hennegan elections is no de minimus term used it disenfranchises a substantial number of the State’s citizens from is, involvement, participating in what because of State “State” elec- important necessary reject language tion for If offices. I would in Hennegan. of voters Moreover, large numbers increasingly given the major of the identify with either who chose refuse facially, at least process appears, the current parties, from large participating number voters disfranchise days of my view within important step process. case, will opinions parties interested the issuance challenge the necessary preparing documentation that are conduct- constitutionality partisan elections especially in Maryland manner such as used ed of our considering provisions own Constitution. analysis for Judge I with Raker’s agree completely

While judges for circuit court the Court that I, I analysis conflicts with what actually partisan, had imagine process, most observers Moreover, I believe that previously supposed. via of news articles

voting the constant stream populace, that the during every cycle, heretofore believed likely, As members nonpartisan. was intended to be process of the have believed that Legislature may nonpartisanship Thus, think, I the issue whether judicial elections existed. should is a matter partisan nonpartisan, such elections be that now be public policy should re-examined. may Legislature

It that want to may well be address case, in by opinions issues raised filed in this order future last by avoid the uncertainties that will be created minute, inevitable, challenges partisan constitutional to this judges. legislative for circuit court Absent procedure issues, it that resolving actions is naive to believe away. issues are going HARRELL,

Concurring Opinion J. by (and I separately briefly) my write to record semantical disagreement description with the Court’s Court process judgeships Circuit “partisan”. opinion makes better case for Court’s labeling worst, at process, as bipartisan1 or multi-parti- san. Even judgment, view, better in my would shown if the Court volunteering avoided any alternative label.2

Whatever wisdom animating requirement that Cir- cuit Court appointees/incumbents run potentially contested elections, regulatory the overall scheme governing pri- mary election process is sui generis when compared other types of instance, elective State office. For for what other potentially contested office are certain campaign candidates’ regulated conduct professional enforceable code of conduct, ethical such as provided by Maryland 16-813 Rules (Canon 5, B) (Canon 5, and 16-814 B), the requirements of which trump permitted otherwise “partisan political activity allowed law”?

I believe sets entirely wrong tone for this Court unnecessarily and without qualification to describe as “parti- san” a process that is designed to foster other than a tradi- tional “partisan” approach to campaign conduct in a race.3 appears What occur in contested States, other which seem be conducted with much of the indicia of truly partisan campaigns,4 need occur also in (2003), Art., l-101(kk), 1. Md.Code Election Law contemplates may there "principal political be no more than parties” given two at a Moreover, out, Majority time. points as the a candidate cross-file primaries in the principal political of both parties, regardless of the candidate’s Maj. op. affiliation or lack thereof. A.2d at 7-8. Incorporating appellants’ concession within argument their relevant case, present in the only the Court process need resolve whether the not, non-partisan. (with If it is as the Court declares which conclusion concur), I say we need no more. view, expressing 3. In pragmatist I am a temporarily channeling for an idealist. 4. newspaper See Chicago-Sun article in August Times of 25 2004 (http://www.suntimes.com/output/news/25ads.html) that the Illinois State Bar judicial Association will campaigns monitor "in an effort to add civility to a Supreme southern Illinois generated Court race that has lawsuit, allegations garbage picking of and a television commercial ” exhorting get judges.’ voters to rid of ‘bad At the news conference an evolution or, least, encourage we need not judicial of judgment, labeling my lines. along those Judiciary’s ultimately against as works partisan elections of the the trust and confidence aspiration retaining of depends. its We upon very which existence premise public, judicial of of engage mitigation politicization rather should case, appear recognize In this we should elections It suffices to de- ones.5 truly partisan case, clare, that such elections present for purposes not non-partisan. BELL, ELDRIDGE, J., which Opinion by G.J. Dissenting joins. today that this decides is a constitutional

The issue Court in the challenge long employed Maryland procedure to the question is judges. Specifically, Court election Circuit Mary’s County correctly wdiether the Circuit Court St. Mary’s County and Anne Arundel refused to order St. elections, Boards Elections to conduct new primary holding Assembly that the intended Maryland General and “partisan” applica- elections be nature Court, heretofore, order, had by per tion. which curiam This injunction preliminary affirmed that court’s denial (the Suessmann, appellants) et al. sought Michael B. intentions, announcing dates, Supreme two the bar Court candi- associations' Karmeier, Maag signed Republican Lloyd Democrat Gordon "disavowing impugn dignity pledges their advertisements that having anything opponent judiciary." The or the candidates denied commercials, negative were do with the which run third Columbus, Georgia's July groups. Ledger- See also article in Enquirer www.ledger-enquirer.com/mld/Iedgerenquirer/news/lo- (http:// 9176624.htm) reporting Georgia Superior that a Court has race cal/ turned "into a letters, fight sniping pre- campaign ... filled cat with name-calling more dawn on live TV that would be at home fusses preschool playground." on a Republican Party Supreme majority Even Court Minne- the U.S. White, 765, 783, 2528, 2539, sota v. 536 U.S. 122 S.Ct. 153 L.Ed.2d 694 (2002), expressed a it stated that "we sentiment reservation when imply requires campaigns neither assert nor that the First Amendment legislative office to the same as those for office.” sound invalidate the March 2004 primary explains also join for that I portion reasons order. that opinion issue, addressing that explains why latter refused we hand, preliminary injunction. On my the other answer to the is, fact, former issue is “no.” There clear case law evincing on Maryland’s public policy this that point, be, remain, and, should and removed from for “partisanship,” reason, I disagree with majori- the Circuit Court and the ty respectfully dissent. (2003) §

Maryland Code 5-203 of the Election Law Article provides:

“(a) registration required.— Voter

“(1) This subsection does not to a for: apply candidate

“(i) States; President or Vice President the United or

“(ii) any federal office who seeks by peti- nomination tion.

“(2) registered Unless the individual is a affiliated voter political party, with the an individual not be a candidate for:

“(i) an political office of that party; “(ii) (b) except provided section, subsection of this political nomination party.

“(b) Party Exception judicial and county for affiliation — board education candidates. —The requirements (a) specified affiliation under subsection of this do section to a for: apply candidate “(1) office;

“(2) a county board of education.” for judicial Candidates and for office boards of county education, thus, expressly from exempt compelled party affiliation.1 differently, Legislature, Act, Stated assertion, Curiously, majority challenges appellants' based on 5-203(b) Article, Code of the Election Law office, among “[ujnique public Maryland requires politi- candidates excluding from political parties has prohibited candidates, affilia- their whatever board of education tion, from their ballots. it, is 5-203(b), and, indeed, building §with

Consistent 5-706(a). name against the prohibition § that the Providing on the appearing in a primary of candidate defeated a to ... a candi- apply not general in the election “does ballot court,” permits circuit judge date for office of the in the judicial primary candidate to “cross-file” principal political parties. addition, § 9-210(g) provides: Party designation.—

“(g) General elections — “(1) office or an office Except for contests of a affiliation party nonpartisan be filled shall be political party nominee of a candidate who is a on ballot. indicated

“(2) (i) a political A who is not a nominee of candidate shall be partisan organization with a affiliated party ‘unaffiliated.’ designated as an “(ii) organ- partisan A with a candidate who affiliated ‘other candidates.’ designated under ization shall be “(3) circuit judge The of candidates for names education, names or for board of and the county court the ballot judges, placed shall be on appellate incumbent primary permit office to run in the parties to candidates cal they party,” stating: are even if not members correct, express opinion we no as to whether this assertion “While cited, support, authority appellants we note that as direct proposition. reading 5- stand A careful does not 203(b)(1) for their exempts judicial require- from the reveals that it candidates nominating they registered party them ment that members of the primary; require parties accept not in its it does party primaries.” who unaffiliated with the their candidates 697, 15, 1, (2004). indeed n. 862 A.2d 18 n. 15 That is 383 Md. 726-27 that, correct, 03(b) if would 5-2 fine distinction one render totally nugatory. they have no do no1 construe statutes so that We State, 219, 426, meaning. Gillespie 222 428 See 370 Md. 804 A.2d v. Buckman, 516, (2002), County 636 Montgomery 333 Md. 448, (1994). A.2d party without a label or other distinguishing mark or location which might indicate party affiliation.” Pursuant provision, judicial to this do appear candidates election ballot as of any the nominee with any party designation. intent, necessary resulting effect, cumulative

these provisions is to remove “as far partisanship possible,” as see Smith v. Higinbothom, 187 Md. 48 A.2d (1946), from process, level and beyond. least, At very Legislature intended that this aspect of process, qualification, candidate not be partisan. another,

There is practical more effect: permitting unaffili- ated candidates run in any2 political party’s primary, reality, compels them to run in each such primary. A candi- date that foregoes the opportunity to participate many as primaries as may be held and many nomination methods as there parties necessarily runs at a distinct disadvantage his or competitors, her having thereby afforded him or herself only one chance of making it to rather than the two or more Moreover, chances otherwise available. opening up process election as to candidates for judicial office and precluding political parties from completely controlling process insofar as who is permitted to compete, rather than being of reflective is partisanship, with consistent the opposite focus.

This Court has public commented policy of this State regard with place of partisanship elections. See Smith v. Higinbothom, 133-134, 187 Md. at 48 A.2d at 763. Noting law ... provides “[t]he that the of all names l-101(kk) Code of the Election Law Article defines “Principal political parties” majority party as "the principal and the minority party.” 5-203(b) The reference in requirements to “the of Thus, party affiliation” is not so limited. may, candidate office, provision, nomination, under that be a candidate an any for or of political party, simply principal political not parties. This Judge argument answers Harrell’s process that the judges Circuit Court bipartisan.” is “at worst ... voting ballots or placed be on the Judge shall candidates mark distinguishing label or other any party without machines of any affiliation party indicate the might which location is re- and that affiliation political such candidate” elections, the primary judicial nominations made quired for Court observed: is to of the state public policy

“It now that the can be said far Judges as as out of the partisanship keep who Judges in the those judiciary to retain possible, and legal and integrity, wisdom sound demonstrated their knowledge.”

Id.3 keeping, as supporting public policy

The reasons judges partisanship much out the election possible, and, merit and thereby, maintaining process quality where concerns, A non-partisan are obvious. predominant are the Mary likely independent judiciary, more will be judiciary (“An Conduct, Canon land Code of Judicial Rule justice is independent judiciary indispensable and honorable standards of society. judge high in our A should observe judiciary independence so and integrity conduct that the one wis preserved.”), integrity, characterized 187 Md. at legal learning. Higinbothom, dom Smith v. public a judiciary inspires greater 48 A.2d at 758. Such subject is likely trust and confidence and less to be Moreover, that will controversy. non-political judiciary “[a] justice law without interpret fairly and administer community anything taint touch more vital to than regardless A of his good judge else. entitled re-election judicial goal If we were correct that the is the retention of elections Judges integrity, their and "those who demonstrated wisdom addition, and, insuring legal knowledge’’ sound in it is the true instance, impor- judges of such even in the first is of critical election tance, judicial partisan, pronouncing with the effect that to only participate primary process, affiliated in the would voters irony a Court result in ihe non-affiliated candidate for Circuit county primary participate could run in a but not be able to state, registered as voter of to vote for him or a even herself. affiliation; judicial candidate, a party poor pushed by the Id. politicians, should for supported never be reasons.” Johnson, Kent, A.2d at quoting Mencken and Owens, Baltimore, 144, 145. Sunpapers The non-political,

Consistent with notion of a non-partisan judiciary and judiciary process are the restrictions prescribed judicial for candidates Canon’s Judicial Conduct. See 5B, Md. pertain- Rule 16-813. Canon ing to “Political of a Judge Conduct Who is a Candidate” on meaning “partisan,” instructive of the term in the a context of election. It makes clear restrictions on political which expressly partisan judges conduct in permitted as engage, compared that of other candi- in partisan dates elections. Canon 5B engaged states: “B. Judge Political Conduct a Who Is a A Candidate. election, re-election, is a judge who candidate for or reten- tion to may engage partisan office political activi- ty respect allowed law with to such candidacy, except judge: that the

“(1) should not or act a leader hold any office organization; political

“(2) should not speeches organization make for a political or or publicly candidate endorse a for non- candidate office; “(3) dignity should maintain the appropriate office;

“(4) should not any person allow other to do for the judge the judge prohibited what from doing; “(5) should not pledges promises make or of conduct other than the faithful impartial office performance of office, duties of announce the judge’s views on issues, disputed legal or misrepresent judge’s identity, qualifications, other fact.” Commentary 5B proscribes judge Canon running publicly endorsing office public candidate another by having office judge’s name the same ticket. “parti- political candidate’s on the limitations clear make exceptions, in reflected activity,” political san is limited to to, permitted, and referred partisanship that the being consists essentially and candidacy own judge’s functions, which other dinners and political allowed to attend her, to him or forum, and enable with a judge provide her own on his or way, advocate, and limited in a restricted Edi- Dictionary, 3rd College Heritage The American behalf. militant fervent, sometimes tion, as “A “partisan” defines By cause, or idea.” person of a party, or proponent supporter making from definition, precluded who is person a non- endorsing publicly even events speeches candidate, “partisan.” deemed could be hardly 5 of 5-706(a) in Title 5-203(b) contained Sections And Law, qualification. to candidate pertaining the Election its focus voting, in Title 210(g) pertaining is although 9— shown, Assembly the General As I have is on the candidate. as judges insofar clear, process election has been concerned, But the not partisan. is qualification candidate qualification; candidate consists of more than process election participation taken account must be complete, to be Therefore, an voters, system. players the critical in the candi- non-partisan is completely process election completely non-partisan still be aspect date selection basis. partisan on a proceeds participation where the voter which it handled the case, way to the contrary In this its unlike treatment process, side of the candidate education, in which the county boards process election could vote those to who Assembly specific was General silent as elections,4 completely has been Assembly the General provides: 4. Section 8-802 "(a) general.— "(1) (i) nonpar- be elected on a of education shall Members of boards

tisan basis. “(ii) candi- board of education to nominate In a dates, party county, regardless of affilia- any registered voter of the affiliation, contests for eligible to vote in those tion or lack of nomination. voting whether was process intended non-partisan, whether expected the voters were on a

participate non-partisan basis. This omission renders ambiguous legislative both the statutory intent and the clear, reflecting scheme intent. law is when legislative intent is not discernable from language the clear of scheme, a statute or a statutory we seek to it in discover extraneous importance integrity sources. Given the of judicial fact, process the election in the existence and in perception, of an independent judicia- and a fair and impartial I ry, resolve in ambiguity favor of non-partisan voter is, participation, that permitting registered all to partic- voters ipate election in stage the selection of the final candidates for office.

The majority opposite reaches the conclusion. Characteriz- ing Maryland’s as a “meticulously crafted elections process,” 1, 18, 388 Md. 862 A.2d it concludes that process a policy nonpartisanship “evincfes] elections keeping while nevertheless process itself affair,[ an inherently partisan on long- which] reifies] established infrastructure of a political party primary to ac- commodate the election candidates desires to be selected on apart partisan bases from politics.” Id.5 particularly, More majority is persuaded that provisions three "(2) shall, Candidates for election to boards of education without party designation regard party affiliation: "(i) candidacy; file certificates of “(ii) ballot; be certified to the ballot; "(iii) appear on the "(iv) on; be voted "(v) be nominated and elected. "(b) Exception. apply section does not to candidates for nomi- —This nation or election to a board of if education Title 3 of the Education requires partisan Article election.”

This section is contained Subtitle 8 of Title entitled "Boards of Education.” I, Lamone, appellants majority, like the and the see Suessmann v. 697, 721-22, (2004), Md. acknowledge 862 A.2d 15-16 parties association, right have upon a First Amendment which the Jones, infringe. Party State See Democratic California sup- do not “nonpartisan” Article Law that mention Election Assembly- the General argument port appellants’ and, in system nonpartisan established a 728-24, 862 fact, Id. at suggest opposite view.” “strongly A.2d at 16-17. 8-802, which, § as unexpectedly, majority relies

Not out, county already pointed prescribes I basis,” nonpartisan “on a subsection school board members (a)(l )(i), for the these elections provides participation lack voters, their affiliation registered all whatever (a)(l)(ii). It opines: Subsection thereof. 8-802(a)(l)(i)’s that, just purpose

“It obvious seems election, 8-802(a)(l)(ii)’s nonpartisan general mandate a nonpartisan primary election. purpose is mandate 8-802(a)(l)(ii) statutory Thus, § us with a provides useful primary. what meant by nonpartisan of is depiction truly is that the State estab- inescapable conclusion when the primary is characterized nonpartisan primary, lishes in it. eligible that voters are to vote by unaffiliated, the fact Indeed, is nonpartisan primary that a implies the statute to by the of unaffiliated voters vote the ability defined so, political primaries If this then the nominat- primary. be cannot, definition, by circuit be ing judges nonpartisan court in them.” ineligible since unaffiliated voters are vote 1, Lamone, 697, 16- 723-25, 383 862 A.2d Suessmann v. Md. 17. 567, 2402, 2408, (2000); 574, 502, 120 S.Ct. 147 L.Ed.2d 509-510 U.S. Conn., 214-215, 208, Party Tashjian Republican v. 479 U.S. 107 S.Ct. hand, 548, 514, I, 544, (1986). like the 93 L.Ed.2d 523 On the other 708, Geartner, 7, citing Hennegan majority, id. at 862 A.2d at 186 Md. (1946), recognize Legislature 47 has A.2d "the elections, primary

power regulate subject only to such create Constitution, may prohibition subject be as to found the State any Congressional prohibitions in elections to the Federal Constitu- rights political parties not tion.” The first amendment of the at any concerning in this there issue in this the issue case. Nor is case regulating judicial importance the interest in elections. State's addition, 8-802(a)(2)(i)-(v). In majority § the relies on As it, majority the contrasts the affiliation provision with county candidates that for candidates boards of education, noting that the latter are more detailed and specifi- cally 724-25, pertain aspects “all of the at election.” Id. A.2d at It also states:

“In contrast to vacancies created board member candi they dates after have won primary but before the election, general on vacancies the ballot after occurring election, won primary candidates have vacancies the ballot occurring after candidates won the primary election are filled central committee nation. same Compare 8-805 with of the individual ^[6] 5-1004 vacating [7]. sum, nomi Law contemplates key Election Article features distinguish ing nonpartisan board of from education elections elec judicial candidates, least, tions for signaling, very its understanding of nonpartisan comport does not with appellants’ view.” I do not believe the more detail in the case the board

. of education member than in the case officer much, all, affects if at very the comparability of the candidate nomination," provides: 6. Section "Vacancies in dies, declines, "(a) disqualified.— who Nominee "(1) If, after but before the dies, nomination, disqualified nominee declines the or becomes be- printed fore the ballots are at a time when the be ballots can reprinted, appear name nominee on the ballot. "(2) remaining If the number nominees less than the number of filled, appointed offices to a new nominee shall be same provided in filling vacancy manner as the Education Article for a the board of education. “(b) dies, remaining cast Votes name a on ballot. If nominee nomination, disqualified declines the or is after printed the ballots are and reprinted, too late for the ballot be if to and that nominee elected, receives sufficient votes to have been the office shall be vacancy deemed vacant and shall be filled as if the had occurred during term the of office.” requires vacancy Section 5-1004 a in nomination for office is that entirely county by one county's in to be filled that central of committee vacating the position. of individual legislative of or the process the election qualification aspect partisan- to the candidate base and deflect intent broaden to majority simply wrong regard is with ship. central committees. While being by filled State

vacancies that law each Maryland requires out majority correctly points Committee, County have a Central party to State and political of in the office filling §§ 4-201 and of vacancies see Maryland Constitution judge is controlled Circuit Court Governor, directly rather than is entrusted IV, 5 of the Consti- parties. Article Section provides: tution vacancy through or of a every occurrence recurrence

“Upon death, removal, age reason of resignation, disqualification by otherwise, of of years or the term of fifteen expiration court, of office any a any judge of circuit creation or in other shall appoint any way, the Governor judge, such office, to fill who shall hold the person duly qualified said of his qualification same until the election and successor. general shall first biennial His be elected at the successor Representatives Congress expira- in after (if in years vacancy occurred tion the term fifteen after way) year that or the first such one way than vacancy any other after the occurrence Except in case through expiration reap- of such term. expiration of a of his term fifteen pointment judge upon appointed no who will become dis- years, person shall qualified by age thereby reason of unable continue his hold until time when successor prescribed office added) would been elected.” (Emphasis I not disagree nonpartisanship do that characteristic excluded, are not but elections is that unaffiliated voters course, it is all rather to vote it. Of whether permitted in the election of registered may participate voters in this case. That judges Circuit at issue Court provision specifically not question answered deals That with boards of education elections. the General Assem- who to vote those bly quite specific eligible was as to was conclusion, elections, only opposite does establish 748

affiliated voters vote for Circuit Court judges, especially right since the of the affected political parties to control who in runs primary their elections has been restricted with re- and, spect to those races more important, given impor- the tance of insuring Thus, the of such integrity races. I reject majority’s assertion that

“When the State wishes to a nonpartisan establish it proven has that it knows how by its creation of the explicitly nonpartisan school board elections. It has not done so context of elections for circuit courts, remain, which despite appellants assertions to the contrary, partisan affairs.” Suessmann,

See 383 Md. at 862 A.2d at 18-20. Moreover, in relation to purely political contests they regulate, judicial different; significantly are it does not follow that the rules with regard who may vote for candidates purely political those contests were intended to be applied to those candidates contests. view, my best, short and at was, Legislature and has remained, silent on clear, issue. law is legisla- tive silence on a particular subject evidence, is not way one other, of legislative that subject. See Jones v. intent State, 255, 336 Md. 271 647 (1994); A.2d 1212 Stouffer Staton Md.App. (2003). 604 833 A.2d sure,

To be it can not be gainsaid 9-206(a)(5), prescribing the format ballot, of the primary requires that printed there be top primary ballot, each “the name of party or the words ‘nonpartisan ballot,’ as applicable,” and candidates appear on ballots, than rather nonpartisan ballots. Nor do I I, dispute, or could judicial candidates, consistent with requirements 9-210(a), §of which enumerate specific ar- rangement ballots, are allotted the sixth spot ballots, on such while the ninth is reserved for “offices filled nonpartisan I election.” do not find these provisions dispositive. candidates, party, with a who not affiliated

Permitting partisanship; is antithetical to to run in that party’s to domi- or considerations party partisan of ability limits the Moreover, coupling eligibility. or determine candidate nate cross-filing compet- in with for provision the non-affiliation one for activities for in other ing participation party and primaries under- required, was further party which heretofore affiliation Parti- party. and of partisanship and limit the influence mine by requir- are further reduced sanship party and influence in the identified labels ing party that the candidates be nomination though presumably party even distinc- provisions sharp various draw a has occurred. These for and candidates tion the candidate other between office, government. of those in the branches for offices has

Indeed, Assembly manners in which the the General clearly judicial candidates from those are differentiated in this even after partisan persistence approach, and its observation, in of the intended Higinbothom, Court’s Smith differentiations, are, 1 repeat, effect of clear evidence those partisanship its to with elections desire limit the associated the and the for The issue that this presents, other offices. case one, time, for the how General only presented first is the to this limitation of Assembly partisan- intended ensure that ship, only benefit and result that could the conceivable differentiations, the contemplated by apparent been these and them, is placement achieved. More than the purpose the required in is to answer provisions statutory scheme fact, is, intent to its in benefit question. Critical resolution the comparison and sought impact the the benefit each approach. judi- the candidate expanding eligibility aspect

While partisanship cial election does reduce the process process, possible.” it not reduce it “so far as The best does to expected result be achieved when broadest to possible voter base used select the ultimate winner. voters, citizens, allowed to eligible more and therefore wisdom, learning “vet” the integrity, candidate to regard partisan without affiliation consider- , ations, process non-partisan. the more the is rendered It is Legislature not at all to go clear me was intent only part shielding from way process partisan- ship. That it did not do case of expressly it process what did expressly the case of the county boards of education does not establish that it intended is, opposite with respect participation. voter This me, an especially compelling conclusion integrity since (at independence the judiciary, enjoys such that it full greatest possible) least extent trust and confidence serves, public least as important ensuring effective and system. efficient education

There is one additional matter which warrants a comment. I, of Maryland Article perti- Constitution provides added): part as follows (emphasis nent “Every citizen of States, of age years the United who upwards, is a resident of the State as the time for closing registration next shall preceding be entitled vote in the ward or election district in which all resides elections to be held in this State” he case, If the issue had been raised in this a persuasive I, 1,§ could argument have been made that precludes Article of unaffiliated the exclusion registered from primary voters elections for A judges. Circuit Court Democrat or Republican primary, limited to Republican registered Democrat or voters nominee, choosing who are their party’s may well not I, within meaning Nonetheless, “election” 1. Article that state-regulated when is open to candidates judgeships affiliation, regardless it no longer simply function. “party” regard With candidates the office of judge, Circuit Court very likely an “election” within the I, meaning Article

I dissent. Judge joins ELDRIDGE views expressed. herein

Case Details

Case Name: Suessmann v. Lamone

Court Name: Court of Appeals of Maryland

Date Published: Nov 17, 2004

Citation: 862 A.2d 1

Docket Number: 140, September Term, 2003

Court Abbreviation: Md.