Ervin Won’t Appeal Ballot Case to State’s Highest Court Before Primary
Valerie L. Ervin will not appeal an Anne Arundel County Circuit judge’s ruling that Maryland’s June 26 primary ballot should not be reprinted or amended with stickers to include the names of her and her running mate as candidates for governor and lieutenant governor.
After a candidate’s forum Tuesday in Baltimore, Ervin said she was all but sure she would not appeal the judge’s decision, but that she still needed to meet later with her attorney before making a final decision. Mariana C. Cordier, her lawyer, confirmed Tuesday night that they would not take the matter before the Maryland Court of Appeals.
“The biggest problem is we’re out of time,” Cordier said.
Given the late date, she and Ervin realized that the ballots were not going to end up being changed in any way.
“Even if we were to win, it’s not happening, it’s just not happening,” Cordier said.
Instead, the lawyer said she would wait until after the election, when she and Ervin would weigh a separate suit to contest the outcome.
Valerie L. Ervin
“When everything is done on the 27th, that opens the door to the part of the [election] code that deals with contesting the election,” she said.
Cordier said she also was concerned that taking the case to the Court of Appeals now could result in bad case law resulting from the short time before the primary and thus limit, in some way, future legal actions about this election.
Judge William C. Mulford II sided with the State Board of Elections on Monday that there was not enough time before the June 14 start of early voting for either reprinting the ballot or affixing stickers, and denied a series of motions by Ervin requiring further action by the state.
Cordier filed suit May 29 on her client’s behalf because the Democratic primary ballots were printed listing the late Baltimore County executive Kevin B. Kamenetz as candidate for governor and Ervin 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.
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, telling Ervin and Johnson as much.
Instead, as per the law, Lamone developed a plan for notifying voters of the changes, including by posting notices in polling places, and distributed it to the state’s 24 local election boards.
That means that voters wanting to cast a vote for the Ervin-Johnson team will have to vote for Kamenetz-Ervin, which will appear on the Democratic gubernatorial primary ballot.
Ervin is a former Montgomery County Council and school board member; her running mate, Johnson, 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.
Both Cordier and Ervin continued to criticize Lamone on Tuesday because the State Election Board did not have enough certified ballot paper on hand to reprint the state ballot, even if officials had been ordered to, and for not testing stickers to correct the ballot in state voting machines, even though they are specified in state law for possible use.
“We exposed her … [for] not having extra paper and not wanting to use the stickers,” Cordier said.
Nevertheless, Mulford found on Monday that Lamone had acted properly and within the law in making her decisions and plainly said as much.
The judge did, however, suggest that perhaps it was time for the Maryland General Assembly to update the state election law and the practices and the deadlines specified in it.
Cordier criticized Lamone’s handling of the ballot issue in a lawsuit earlier this year, when the state contended in April – two months before the primary — that reprinting a number of ballots to eliminate the name of a candidate would be ill-advised.
In that case, filed April 9, voters sought to 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.
During the Monday hearing, Mulford admonished Cordier and Ervin for taking so long to file suit May 29 – 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 in court Monday. “The context of this was clear when the Oaks case came down.”
Ervin apparently was stung by the judge’s rebuke that too much time had elapsed before filing her suit, making a point of saying she could not find another lawyer to take the case before hiring Cordier, whose specialty is not state election law.
“Every single attorney that was an election law expert in Maryland was conflicted out” with other election cases, she said.