ANNAPOLIS – Maryland’s top court on Monday turned aside an 11th-hour effort by incarcerated non-felons and pretrial detainees in Baltimore to have the city elections board place polling booths in jails and provide inmates ready access to absentee ballots this Election Day.
In rejecting the bid, the Court of Appeals instructed the Baltimore City Circuit Court to consider the inmates’ request in a future proceeding. The high court added in its one-page order that it will issue an opinion to give the circuit court guidance making its decision.
The order came just hours after a civil-rights attorney told the high court that incarcerated non-felons and pretrial detainees in the city would be denied their right to vote by because the board has refused to place polling booths in jails or provide inmates ready access to absentee ballots.
“Voting is the cornerstone of our democracy and it shouldn’t be abridged or denied because you are behind bars,” said J. Wyndal Gordon on behalf of a group of registered voters incarcerated in Baltimore jails.
But an attorney for the Baltimore City Board of Elections said the right to vote remains strong, as incarcerated individuals can and often do request absentee ballots and Maryland law does not call for installing polling booths in jails.
“There is no barrier to absentee voting” in jail, Assistant Maryland Attorney General Julia Doyle Bernhardt told the Court of Appeals, adding there is “no particular discrimination” against incarcerated individuals registered to vote.
But Judge Shirley M. Watts interjected that incarcerated individuals presumably do have a more difficult time getting absentee ballots, as they often have to request them through an attorney, family member or friend.
The high-court session followed Baltimore City Circuit Judge Jeffrey M. Geller’s rejection last week of the inmate group’s claim for relief, saying it had been filed too late under Maryland election law. The group, Voters Organized for the Integrity of City Elections, then sought review by the high court, which agreed to hear the case Monday.
Judge Alan M. Wilner, in questioning Gordon, noted the impending election and said the court might have no alternative but to uphold Geller’s dismissal.
“The general election is tomorrow,” said Wilner, a retired judge sitting by special assignment. “How can we possibly issue an order? How can you (by) tomorrow create a polling place in every jail in the city?”
Gordon responded that the board could provide for provisional ballots, enabling the incarcerated individuals to vote, and determine the votes’ validity later.
“Inconvenience (for the board) is not a basis to deny a fundamental right,” said Gordon, a Baltimore solo practitioner.
But Bernhardt picked up on Wilner’s concern, saying that “the relief requested is impossible to implement in a day.”
Maryland election law sets specific dates and timetables for registering and requesting absentee ballots, which must be met regardless of the voter’s circumstances, she said.
The law does call on the board to reach out to nursing homes by telling the residents of the availability of absentee balloting, Bernhardt said. But the statute imposes no requirement that the board conduct similar outreach efforts to incarcerated individuals, she added.
The board and its staff are “fulfilling every one of their statutory duties,” including the obligation not to interfere with an incarcerated individual’s right to vote, she said.
Gordon disagreed, saying the board has a duty to ensure those registered to vote are informed of their voting options even if they are in jail.
“Why are we creating categories of voters to discriminate against?” Gordon asked the court. “There should be some type of information that they (incarcerated individuals) are given.”
Wilner was sitting in for Judge Joseph M. Getty on the seven-member court. Getty did not publicly disclose the reason for his recusal.
The case is Voters Organized for the Integrity of City Elections v. Baltimore City Board of Elections, No. 60, September Term 2016.
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