Former attorneys general snub one of their own, back Brown

The Maryland Office of the Attorney General has always been led by men but it is apparently not a solid fraternity.

Former Attorneys General J. Joseph Curran Jr. and Stephen H. Sachs have snubbed current AG Douglas F. Gansler and endorsed his opponent Lt. Gov. Anthony G. Brown in the race for the 2014 Democratic gubernatorial nomination.

“Anthony Brown has been an effective lieutenant governor and I know he’ll make an exceptional governor for all Marylanders,” Curran said in a statement the Brown campaign emailed Thursday.


Maryland Attorney General Douglas F. Gansler

“With a long record of serving Maryland’s hard-working families and delivering real results, Anthony Brown is by far the best candidate for governor in 2014 and I’ll be working hard to make sure he’s elected,” Sachs said in the same statement.

Bob Wheelock, a spokesman for Gansler, said the endorsements are “no surprise to us.”‘

Sachs mentored Brown in the 1990s at what is now the WilmerHale law firm; Curran is the father-in-law of Gov. Martin O’Malley, under whom Brown serves and who has endorsed Brown for governor, Wheelock said.

“It would be great if they would support us but we understand,” Wheelock added.

Referendum on referendums still on hold

Del. Jon Cardin

Del. Jon Cardin, D-Baltimore County

The legal issues surrounding voter referendums are as nuanced as the signatures that often come under scrutiny during court battles over the petitions.

John Henry Smith, for example, can sign and print his name on a petition and it would be counted. But if he were to sign “Jack Smith” and print “J. H. Smith,” the signature wouldn’t be permitted.

It’s why Del. Jon Cardin, D-Baltimore County, wants to make easier the signature requirement for referendum, despite the objections of Democratic leadership in the General Assembly.

“Predictability is important in this process for petitioners and government,” Cardin said during the Administrative Law Section’s panel discussion at the Maryland State Bar Association’s Annual Meeting in Ocean City. “If you create a system that creates certainty, we are doing the right thing in terms of public policy no matter your politics.”

Cardin, who chairs an election law subcommittee in the House of Delegates, said legislation to reform the petition process was not passed in the General Assembly this year because of the “volatile nature” of the session (including the gun control and death penalty bills) and because Democratic leaders felt it would be too partisan to pass such legislation so close to next year’s election.

Speaking of the 2014 election, the primary was moved up to June in part to accommodate a federal law that requires ballots to be finalized 45 days before an election so they can be sent to military personnel overseas. (The September date was too close to November’s general election.)

The legal timeline to appeal a ballot question moves at a breakneck pace by legal standards. A case can go from a circuit court to the Court of Appeals in 30 days, members of the panel said.

But “can” does not mean “will,” especially at the trial court level. How much evidence is admissible at trial varies from judge to judge, with some allowing very little evidence and others allowing six months of discovery, the panelists said.

One thing most judges don’t want to do, according to Francis J. Collins, is go through tens of thousands of signatures that might be contested.

“Form takes over substance,” said Collins, of Kahn, Smith & Collins P.A. in Baltimore. “Circuit court judges and clerks don’t have the time.”

A final fun fact from the panel: Maryland is one of two states that solely have a referendum, meaning voters cannot adopt new laws, only repeal laws passed by the legislature.

You got to believe? Not really

If you read to the end of an article at about countries where you can be executed for being an atheist, you will find a mention of Maryland. No, not for that, of course, but Maryland is listed as one of seven states where it is illegal for an atheist to hold public office.

What’s up with that?

It’s in Article 37 of the state constitution, which reads, in part: “That no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God.”

However, though the article remains, it was successfully challenged in 1961 by Roy R. Torcaso, who had refused to swear an oath in Montgomery County Circuit Court affirming his belief in God in order to become a notary public. Torcaso’s case went all the way to the U.S. Supreme Court, which ruled in his favor.

Associate Justice Hugo Black’s opinion said government may not “constitutionally force a person ‘to profess a belief or disbelief in any religion.’ [Government may not] constitutionally pass laws or impose requirements which aid all religions as against non-believers.”

Torcasco became a notary public, swearing to uphold the laws of Maryland and the U.S. Constitution, his obituary in the Washington Post said. He died in 2007 at age 96.

Law blog roundup

ruth bader-ginsburgWelcome to the first Monday in November, which makes tomorrow, well, you know the rest. Here now some news items to get your week started.

– What ever happened to that lawyer who argued for the respondent in Weinberger v. Wiesenfeld?

– What is your answer to one of the great questions of our time?

– It’s never too early to have a legal battle over ballots.

– “Girls Gone Wild” case reaches the Georgia Supreme Court.

Everything you wanted to know about emergency election litigation but were afraid to ask

When you think about election season,  you often think about debates, political ads — and, of course, litigation.

Enter the Federal Judicial Center, the research and educational agency of the federal judiciary. It published 80 case studies on emergency election litigation in federal courts and interviewed several dozen federal judges. Among the topics covered: litigation relating to registering voters, absentee and early voting, campaign activities, and poll hours.

One of the white papers, Keeping Polls Open Because of Weather, seems particularly timely. The weather in Ohio was nasty when the state’s presidential primary was held in March 2008 and a number of locations were experiencing ballot shortages. So then-Sen. Barack Obama sued to keep the polls open until 9 p.m., an extra hour-and-a-half, in three counties.

A judge granted the request with respect to polling places in Cuyahoga County (which includes Cleveland). All votes received after 7:30 p.m. (the normal closing time) were to be put aside as provisional ballots. The report, however, noted that some polls covered by the order had already closed when they received the order and some did not reopen.

Raskin rips Romney, Ryan and Robert (Bork)

Maryland state Sen. Jamin B. “Jamie” Raskin, D-Montgomery, wants voters heading to the polls to remember that the president has the authority to make appointments to the Supreme Court and lower federal courts — and that Robert Bork is among the legal advisers to the Republican ticket of Mitt Romney and Paul Ryan.

Raskin, an ardent supporter of President Barack Obama, warned in Wednesday’s Huffington Post that a “Romney-Ryan-Bork court would lead to the uncorking of bottles of champagne throughout the boardrooms of America’s largest and most right-wing corporations.”

Romney appointees to the federal courts would lead to “an acceleration of all of the worst trends already ravaging the prospects of justice for ‘natural persons’ in America, including the destruction of what is left of campaign finance and disclosure laws as corporations assume all the political free speech rights of the people, a dramatic change ushered in by Citizens United in 2010,” Raskin added on the post’s Politics blog.

Raskin has been quite prolific recently, having written an op-ed piece in the New York Times last week calling for a constitutional amendment to undo Citizens United v. Federal Election Commission, in which the Supreme Court ruled that “the government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether” under the First Amendment.

But Raskin, a widely respected constitutional law professor at American University, might need to brush up on his history.

In the Huffington Post piece he referred to Bork as as “the right-wing polemicist and former Bush Supreme Court nominee so extreme that he was rejected by a bipartisan coalition of Senators in 1987.”

“I think somebody must have changed that,” Raskin said of the error. “I very well know that Ronald Reagan is the one who made that mistake.”

Judges talk contested elections

Not the judge in the photo, however. I really just wanted to share with you the sartorial splendor of Chief Judge Robert M. Bell on Thursday morning during the reception for new judges at the MSBA’s Annual meeting in Ocean City. (He wore a hat, he said, in honor of outgoing MSBA President Henry Dugan).

Four other judges and people involved in the judicial nominating process talked judicial elections in a session called “So you want to be a judge?”

Ted Staples, the panel moderator and co-chair of the MSBA’s Judicial Appointments Committee, said the real possibility of having to campaign “has got to be at the top of your list” when considering if you want a seat on the circuit court.

Montgomery County Administrative Judge John W. Debelius had to run in 2002 after just a year on the bench. He and his fellow sitting judges were out every night “campaigning,”meaning all they could really do was show up at events.

Debelius said the key is to be involved in the community to build up support.

“The only way to carry off an election is to have people,” he said, adding the sitting judges, with the help of the Montgomery County Bar, were able to have supporters at every polling place in the county and win their elections.

Despite the criticism, efforts to abolish judicial elections are “almost going backwards,” according to Richard Montgomery, MSBA’s legislative director for nine years.

“It’s going to take a constitutional amendment,” added Andy Radding, who has served on several judicial nominating commissions. “I don’t think [the General Assembly] has the guts.”

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Alaskans spell “contested election”

Alaska Elections Division Director Gail Fenumiai, right, and Assistant Attorney General Sarah Felix look over a ballot Wednesday, Nov. 10, 2010, in Juneau, Alaska. Election officials planned to begin poring over more than 92,500 write-in ballots in the Alaska Senate race on Wednesday, in spite of a federal lawsuit that's challenging the way the count was to be conducted.

Alaska Elections Division Director Gail Fenumiai, right, and Assistant Attorney General Sarah Felix look over a ballot Wednesday, Nov. 10, 2010, in Juneau, Alaska.

Maybe it’s the journalist in me, but I have a low tolerance for spelling mistakes. Sure, we all make the occaisional mistake, but between dictionaries and spell check on computers, the errors should be few and far between.

I’m especially paranoid about when it comes to spelling people’s names. I had the fear of God put into me in college, where a misspelled proper name in a journalism class meant an “F” on the assignment, no questions asked. Plus, my story might be the only time a person’s name appears in the paper, so it’s the least I can do to make sure John Smith doesn’t spell his name “Jon Smythe.”

This brings me to Alaska’s contested U.S. Senate race. For those not familiar, incumbent Lisa Murkowski was defeated in the Republican primary by Tea Party favorite Joe Miller. Murkowski then decided to run as an independent, write-in candidate; as of Wednesday night, “Write-In Votes” leads Miller by more than 10,000 votes.

This is where the fun begins. Alaska election officials are now reviewing all of the write-in ballots, with Murkowski named in almost 90 percent of them as of Friday morning. “Murkowski” might become the “hanging chad” of the 2010 election season. So far, officials have seen “Murkowsky,” “Morkowski,” “Mirkowsky,” “Murkrowsky,” and “Marcouski” despite the candidate’s general election campaign devoted in large part to the spelling of her surname.

Personally, I think if you can’t spell correctly the name of a longtime Alaskan legislator who is also the daughter of a longtime Alaskan legislator, you need to pay more attention to current events. But my point is, expect lawsuits aplenty over the ballots and voter rolls in addition to the challenges already being made.

And, remember, should we get to this point, there is no hyphen in “recount.”

Top 5: One person, one vote

Just when it appeared a full-scale review of Maryland’s constitution had been approved by voters, it hadn’t.

And just when it appeared a Baltimore interior designer had won a seat on Baltimore’s Orphans’ Court, it turned out she hadn’t.

And, finally, just when it seemed Alison Asti was running on a slate with another candidate for Anne Arundel County Circuit Court judge, it turned out she wasn’t.

It was that kind of week for Maryland legal news, as evidenced by The Daily Record’s top five most-read staff-written stories.

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