Judge Voids Md. Laws for Early Voting
Decision, a Blow to Democrats, Is Stayed Pending an Appeal

By Matthew Mosk
Washington Post Staff Writer
Saturday, August 12, 2006

An Anne Arundel County judge invalidated Maryland's early voting laws yesterday in an opinion that could substantially alter the political tactics used by campaign teams across the state this fall.

Circuit Court Judge Ronald Silkworth ruled that it would be illegal for Maryland elections officials to open polling stations during the week before Election Day because the state constitution strictly sets the timing of elections. The 2005 and 2006 laws also improperly permitted voters to cast ballots outside their precincts, he wrote.

"This court finds that the General Assembly exceeded its constitutional authority in enacting the early voting statutes," wrote Silkworth, a Democratic appointee whose ruling favors Republicans in one of the State House's most partisan disputes.

Silkworth agreed to stay the decision until the case could be heard on appeal by the state's highest court, probably before the Sept. 12 primary. State election officials said they will continue to prepare for voting to start as early as Sept. 5.

Should it hold up on appeal, the decision would most directly benefit Gov. Robert L. Ehrlich Jr. (R). He has vigorously fought the early voting proposals from their inception, first in the legislature with his veto and then with a failed petition drive orchestrated by his reelection campaign.

The governor has described the plan as an invitation to voter fraud; Democrats have likened his efforts to stop it as tantamount to voter suppression.

Ehrlich learned of the decision during a lunch with Washington Post reporters and editors and appeared genuinely pleased and surprised. "Wow!" he exclaimed, eyes wide. "Are you serious? Wow!"

"They were real bad bills," he continued. "They were just ridiculous. Absolutely stupid. Stupid partisanship."

A key reason Ehrlich has fought so hard to derail the early voting provisions -- and Democrats have pushed so hard to enact them -- is that they are believed to give an edge to Democratic Party candidates in Maryland.

It's a matter of numbers: Early voting increases turnout. Democrats have a nearly 2 to 1 edge on voter rolls, so that means more votes for Democrats.

Democrats, however, have described the bill as something more akin to a voter rights act, because expanding the polling period provides more opportunities for working-class voters who might not have time to vote on Election Day.

"Sheet metal workers and crane operators and people who have to leave the house at 5 in the morning to get to their jobs at the Pentagon, they're the ones who are helped by this," Senate President Thomas V. Mike Miller Jr. (D-Calvert) said earlier this year.

Democrats planned to capitalize with elaborate efforts to prod voters to the polls. They view turnout, especially among African American voters, as crucial to their bid to unseat Ehrlich in the Nov. 7 election. The decision could force them to revise those plans.

Miller said he was baffled by the court ruling, because 35 states, including 10 whose constitutions define Election Day as Maryland's does, have permitted some form of early voting. The U.S. Supreme Court has upheld similar provisions.

But Silkworth wrote that what has occurred in other states or in federal court is not relevant to the Maryland case. He wrote that he felt compelled to adhere to a basic guiding principle: "not to depart from the plain language" of the constitution.

Dan Friedman, an expert on the Maryland constitution who teaches at the University of Maryland Law School, said there is considerable room for disagreement on the subject on appeal.

"I think there is some flexibility in the constitution," Friedman said, noting, for instance, that although the constitution decrees that the election will be held on a specific day in November, the polls need not open at 12:01 a.m. and remain open until midnight.

"The Court of Appeals has said the constitution isn't meant to be a straitjacket," he said.

Republican lawmakers said they had warned Democrats that in their view, passing early voting laws would require amending the constitution, much as the legislature did when it allowed for absentee voting.

"We told them, 'If you want to do this, do it right,' " said House Minority Whip Anthony J. O'Donnell (Calvert).

Earlier this year, just before the vote on one of the provisions, Republicans became so incensed that they staged a rare walkout in the Senate, marching up the marble staircase in the State House and into the governor's reception room. Ehrlich applauded them for walking out and declared that four years of "monopoly frustration has come to a head."

Yesterday, Ehrlich gave a similar assessment, saying he might have supported the concept of extending voting hours, or even opening polls for "two or three days."

But he said he was appalled by the Democrats' bill, which spelled out 21 addresses where polls must be open from 7 a.m. to 8 p.m. during the week leading up to Election Day and also enhanced the power of the state elections administrator, a Democratic appointee, to oversee actions of local election officials appointed by Republicans.

The court ruling -- as did the one striking down a law requiring Wal-Mart to provide health benefits to its workers -- helps him convey his message that the legislature has "overreached," he said.

"This is what they always do," Ehrlich said. "They always overreach."

Democrats, however, said they viewed the lawsuit that brought about yesterday's ruling as the latest in a series of crass attempts by Ehrlich to tamp down turnout in the election, in which he will face Baltimore Mayor Martin O'Malley (D).

Maryland Democratic Party Chairman Terry Lierman was quick to note that the case was filed by Marirose Joan Capozzi, a Republican State Central Committee member and campaign organizer for Lt. Gov. Michael S. Steele, who is running for U.S. Senate.

"She is backed by Republicans and Governor Bob Ehrlich in this effort to suppress the vote for partisan political reasons," Lierman said in a statement.

Rep. Steny H. Hoyer (D-Md.) said he, too, "strongly disagrees" with the ruling.

"Marylanders should see the lawsuit that resulted in today's ruling for exactly what it is: an effort spearheaded by supporters of Governor Ehrlich and Lieutenant Governor Steele to make it difficult for voters to exercise the franchise," he said.

State Elections Administrator Linda Lamone said she will proceed with plans for early voting pending the high court ruling. It will be far easier, she said, to scrap the early voting effort at the last minute than to try to resurrect it at the last minute if the decision is overturned.

Staff writer Daniel de Vise contributed to this report.

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