Judge to Ervin on Ballot Status: ‘I Wish I Could Help You, But I Can’t

An Anne Arundel County Circuit judge Monday rejected arguments by Valerie L. Ervin to order the Maryland State Board of Elections to either reprint the June 26 primary election ballot or amend it with stickers to include the names of her and her running mate as Democratic candidates for governor and lieutenant governor.

 

Judge William C. Mulford II, who said he was sympathetic to Ervin’s plight, sided with the State Board of Elections that there was not enough time between now and the June 14 start of early voting for either reprinting the ballot or affixing stickers — and that the candidate should have acted sooner than May 29 in filing a lawsuit.

 

“The court would create chaos to order anything else,” Mulford said.

 

Ervin brought the suit because the Democratic primary ballots were printed listing Baltimore County Executive Kevin B. Kamenetz as candidate for governor and her as his lieutenant governor candidate.

 

Kamenetz, however, died suddenly May 10, and Ervin decided to step up and run for governor, as is allowed by state law, picking Marisol A. Johnson as her running mate. Ervin and Johnson filed as the new team of candidates on May 17.

 

Outside an Anne Arundel County Circuit courtroom, Valerie L. Ervin, flanked by running mate Marisol A. Johnson (left), and lawyer Mariana C. Cordier, answers questions from the press Monday. Photo by William F. Zorzi  

State Elections Administrator Linda H. Lamone, after consulting with local election boards, the voting machine manufacturer and certified ballot paper supplier, determined that there was not enough time to reprint the ballot – as is her prerogative under the law — and said as much the day Ervin and Johnson filed. Instead, Lamone developed a plan for notifying voters of the changes, as per the law, including by posting notices in polling places.

 

At the end of a nearly three-hour court proceeding Monday, Mulford painstakingly established a trial record for possible consideration by the Maryland Court of Appeals, but both Ervin and her lawyer, Mariana C. Cordier, said after the ruling that they were unsure at that point what their next steps were.

 

Mulford made clear that he believed that Lamone had acted entirely in keeping with state election law and that nothing she had done was “arbitrary or capricious,” as Cordier had charged in the Ervin lawsuit.

 

The judge went on to note that he believed Lamone had acted constitutionally, finding that she had not violated the 1st or 14th Amendments of the U.S. Constitution or Articles 7 or 24 of the Maryland Declaration of Rights, as charged in the lawsuit.

 

“Ms. Ervin,” Mulford said, “I would love to order ballot reprinting, and I would love to order the stickers, but I don’t see how I can do it.”

 

The judge did suggest aloud, to no one in particular, that perhaps the General Assembly should review the state election law and update its options and deadlines, given the technological advances and other changes that have taken place in recent years.

 

“I did hear you,” he said to Ervin. “I wish I could help you, but I can’t.”

 

Ervin, 61, is a former Montgomery County Council and school board member; her running mate, Johnson, 38, owns an insurance business and is a former Baltimore County school board member who abandoned a campaign for a District 2 County Council seat earlier this year.

 

After the hearing, Ervin, flanked by Johnson and Cordier, answered questions by the press outside the courtroom, saying initially, “clearly this has been a very long and emotional journey we’ve been on.”

 

Ervin said appreciated the judge’s explanation for his ruling.

 

But, she said, “I still believe that the voters lost today.

 

“I believe that the mitigation [of] putting a sign in a voting booth does not go far enough. I believe — and Marisol and I have talked about this many times — this is way bigger than the two of us, and that we really do believe that voters are going to be confused, and we need to do all that we can to support their right to vote and to be clear about who it is that they’re voting for,” Ervin said.

 

“We’ve fought a really good fight, but we’re not done,” she said. “We still have other options ahead of us.”

 

Asked what those options were, Ervin deferred to Cordier.

 

“Well, we can appeal the finding of the circuit court,” Cordier said. “The reality of the matter is that we are running out of time.”

 

That said, no determination had been made as to whether to appeal.

 

Cordier then assailed Lamone and her handling of the ballot question – which dates to an earlier case, filed April 9, aimed at removing remove the name of disgraced state lawmaker Nathaniel T. Oaks from 41st District ballots in Baltimore City, after he pleaded guilty to two federal felonies stemming from a political corruption investigation.

 

Election officials, represented by the attorney general’s office, had argued in the Oaks case that while reprinting the ballot was still possible as late as April 19, it would dramatically increase the chances for error.

 

“I think this really shed a light on the State Board of Elections and their duties to the voters of Maryland were woefully, woefully not complied with,” Cordier said.

 

“Do we have time for the reprint? Apparently not. Do we have time for the stickers? They’re not going to make any actions for obtaining the stickers, attempting to test the stickers. So that leaves us with the notice, a notice that is foggy at best,” she said.

 

“And so, that will affect the outcome of the election,” Cordier said.

 

Lamone, who was the defendant in the lawsuit in her capacity as state elections administrator, testified on behalf of the state Thursday. Ervin was called by Cordier to testify on her own behalf.

 

Cordier also called an expert witness on elections, Douglas W. Jones, of Iowa City, Iowa, but his testimony did not seem to advance Ervin’s case.

 

“At this point, there’s no time to do a reprint,” Jones said. “I agree with the state on that.”

 

He did raise questions about the state’s assertion that it could only use “certified” paper for the ballots, as well as whether stickers could be used to amend the ballots.

 

Jones said that he “would trust poll workers” to put stickers on the ballots, but that they first should be tested on 10 machines – a “seat of the pants” figure, he conceded under questioning by Andrea W. Trento, the assistant attorney general representing the elections board.

 

But, Jones said, at this point, “there probably isn’t time” to do that, either.

 

At one point, Mulford admonished Cordier and Ervin for taking so long to file suit – especially in light of the Court of Appeals decision May 2 that reversed an Anne Arundel County Circuit judge’s decision in the Oaks ballot case, finding on a 5-2 vote that the 41st District ballots should not be reprinted.

 

In a 6-1 decision May 18, the state’s highest court denied a motion to reconsider its May 2 refusal to order Oaks’s name off the 41st District’s primary ballots, rejecting an argument that the sudden death of Kamenetz could cause all the state’s ballots to be reprinted.

 

In that case, Lamone determined there was not enough time to reprint the ballots statewide because of Kamenetz’s death, citing a section of state election law that affords her the discretion to determine whether there is sufficient time to reprint the ballot.

 

“Mr. Kamenetz died May 10 and we’re here on June 4,” Mulford said. “The context of this was clear when the Oaks case came down.”

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