A potentially unique situation in which a legislator votes to override a veto by Gov. Larry Hogan in both the House and Senate may be legal under the Maryland Constitution.
Then again, it might not be.
Such is the advice given in a letter written by an attorney for the General Assembly.
Craig Zucker, the Montgomery County Democratic delegate who was sworn-in as a senator Thursday, is expected to be the 29th vote needed to override a veto on a bill granting voting rights to felons on parole and probation. He previously voted to override the veto on Jan. 20 as a member of the House of Delegates and was the 85th vote needed to overturn Hogan’s action.
If Zucker were to vote to override the bill in the Senate, it could be a first in the history of the General Assembly.
On Thursday, Senate President Thomas V. Mike Miller Jr. acknowledged the unique nature of the vote but said it was legal according to the Maryland Constitution and that he had an advisory letter from the attorney general.
That letter, acquired by The Daily Record, leave the door open to a counter argument to Miller’s position.
Sandra Benson Brantley, counsel to the General Assembly, in her advisory letter, writes that “The prospect of a single legislator voting twice on the same legislation — once as a delegate and once as a senator — creates an overlap between the two houses that is, at a minimum, in tension with (the Maryland Constitution) and the court’s construction of it.”
But Brantley wrote that the state constitution grants the legislature to “be the judge of qualifications and elections of members. If the Senate considers the individual in question a member of the Senate when the veto override vote is taken in the Senate, it should be considered a valid vote.”
The advice letter is not the same as an official opinion from the attorney general and is not legally binding.
“Nevertheless, it is my view that a qualified member of a legislative body is entitled to vote on any legislation before that body,” wrote Brantley.
“In summary, although there is a potential counterargument that allowing a legislator to vote twice on the same legislation violates the requirement that the two houses of the legislature be “distinct’ … the more reasonable and pervasive view is that a member of the Senate who was appointed to fill a vacancy…may vote as the qualified senator of his or her district. I can find no authority in Maryland law or elsewhere that precludes the senator from voting under these circumstances.”
Republicans also have a copy of this advise letter and appear to be poised to use it as a way to challenge the veto override now scheduled for Tuesday.