Incarcerated non-felons and pretrial detainees simply ran out of time in their 11th-hour bid to have the Baltimore elections board place polling booths in jails and provide inmates ready access to absentee ballots last Election Day, Maryland’s top court stated in an opinion released Monday.
The Court of Appeals’ opinion explained its Election Day-eve order in which it rejected the bid and instructed the Baltimore City Circuit Court to consider the inmates’ request in a future proceeding.
In its opinion, the high court noted the speed with which the case got from the circuit court, where the bid was rejected in the first week of November, to the Court of Appeals just days later, on Monday, Nov. 7.
Alas, it was not fast enough as Election Day was Nov. 8.
“(B)y the time the appeal was argued to us, the early voting period was over and the general election was just hours away,” Judge Robert N. McDonald wrote for the court.
“Even if this court, or the circuit court on remand from the appeal, were to order state officials to create a system of ‘inmate voting’ for the 2016 general election, it would have been impossible to effectively accomplish such a task in the few hours remaining before the polls opened on Election Day,” McDonald added. “Given that Election Day is the busiest day of any year for election officials, such an order would not only have been ineffective, but counterproductive in ensuring an orderly election. In our view, the request for a TRO (temporary restraining order) related to the November 8, 2016, general election was moot by the time it reached us on November 7.”
The inmates’ attorney, J. Wyndal Gordon, said Monday he disagreed with the high court’s dismissal of the claim as too late to be considered but welcomed the opportunity to make his case in circuit court in advance of Election Day 2018.
“If we claim voting rights to be so revered, the timing of the matter shouldn’t matter,” said Gordon, a Baltimore solo practitioner. “We are talking about constitutional rights that are clearly being violated.”
Nevertheless, “I have 2018 in the crosshairs and I would hope to see some change in the way they (election officials) are doing things,” he added.
The Maryland attorney general’s office declined to comment on the high court’s decision and remand to the circuit court, saying it does not make statements on ongoing litigation.
Judge Shirley M. Watts was the sole member of the seven-judge court not to join McDonald’s opinion. She said dismissal of the appeal was in order because the inmates could have filed their claim much earlier — such as around the time of the primary election in last April – but did not. Thus, the inmates’ lawsuit — filed just eight days before the general election – should have been barred by the doctrine of laches, which “applies where there is an unreasonable delay in the assertion of one party’s rights and that delay results in prejudice to the opposing party,” Watts wrote.
The Court of Appeals issued its decision in Voters Organized for the Integrity of City Elections et al. v. Baltimore City Board of Elections et al., No. 60, September Term 2016.