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Editorial Advisory Board: Midterm elections should fill early-term vacancies

Currently pending before the Maryland General Assembly are two bills to submit a proposed constitutional amendment to the voters to change the process for filling an early-term vacancy in the Maryland Senate or House of Delegates. We support the bills.

The death of Congressman Elijah Cummings in October and the recent resignations of several members of the Maryland General Assembly have brought to the fore the different ways in which federal congressional and Maryland legislative vacancies are filled. Since the First Congress was elected in 1788, every member of the United States House of Representatives has obtained his or her seat by election; no person has ever been appointed to the body. Vacancies in the United States House of Representatives are filled by special elections. The same process applied for the Maryland House of Delegates from the adoption of Maryland’s first constitution in 1776 to 1936 and for the Maryland Senate from 1837, when state senators first were popularly elected, to 1936.

In 1936, voters ratified an amendment to the Maryland Constitution that replaced special elections with a Byzantine appointment process. The county or district Central Committee of the vacating delegate’s or senator’s political party is to submit a name to the governor, who then “shall” appoint the named person to the vacancy. If the district of the vacating delegate or senator covers more than one county, each county’s Central Committee may submit a name to the governor and then he or she can pick among the names submitted.

The 1936 amendment was prompted by the cost of holding a special election. As the special election to fill Rep. Cummings’ seat illustrates, special elections not only are expensive, but the gap between the time of a vacancy and the special election can leave the people of the affected district without representation for a substantial amount of time. Congressman Cummings died on Oct. 17, 2019; the special general election to fill his seat will not be held until April 28, 2020.

Maryland’s appointment process saves the taxpayers from paying for special elections and allows for vacancies to be filled quickly. However, the process is far from perfect. It is undemocratic and may even violate the federal constitutional requirement of “one man, one vote” enunciated by the Supreme Court in Baker v. Carr and Reynolds v. Simms. Delegates and senators appointed early in a term can serve for up to four years without ever having been elected by the voters. Further, as the recent events with respect to the filling of the vacancy in Maryland District 45 show, the process can be messy and lead to questionable results. When the seven-member Democratic Party Central Committee for District 45 met last week to fill the vacancy caused by the resignation of Del. Cheryl Glenn, the media initially was barred from observing the process and votes were taken behind closed doors. Among the applicants for the open seat was a member of the committee, Chanel Branch. At the end of the day, the six members of the committee other than Branch split their votes among four applicants – two applicants received one vote each and two applicants, including Branch, received two votes each. Branch then cast the tie-breaking vote for herself and her name was sent to the governor for appointment because she had won a plurality of the seven votes on the committee.

On Jan. 22, the Maryland Senate Education, Health, and Environmental Affairs Committee has scheduled a hearing on Senate Bill 10, which would propose a constitutional amendment to change the current appointment process. Senate Bill 10 provides for a compromise solution to the legislative vacancy issue. If a vacancy occurs more than 21 days before the filing deadline for the regular statewide election in the second year of a legislator’s term – in other words, the presidential election, which is held midway through the General Assembly’s four-year term – the person appointed by the Central Committee would serve only until the presidential election and a special election to fill the remaining two years of the legislative term would be held simultaneously with the presidential election. Senate Bill 10 balances the competing costs and benefits between having special elections to fill all vacancies and the current appointment system for Maryland legislative vacancies. On Jan. 29, the Maryland House of Delegates Ways and Means Committee has scheduled a hearing on House Bill 103, which is identical to Senate Bill 10. We urge both the Senate committee and the House committee to give favorable reports respectively to Senate Bill 10 and House Bill 103, and for the full Senate and House to vote in favor of the bills.


James B. Astrachan, Chair

James K. Archibald

Arthur F. Fergenson

Nancy Forster

Susan Francis

Michael Hayes

James Haynes

Ericka N. King

Stephen Z. Meehan

C. William Michaels

Angela W. Russell

Debra G. Schubert

H. Mark Stichel

Michael Van Alstine

Vanessa Vescio

The Daily Record Editorial Advisory Board is composed of members of the legal profession who serve voluntarily and are independent of The Daily Record. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. When their minds meet, unsigned opinions will result. When they differ, or if a conflict exists, majority views and the names of members who do not participate will appear. Members of the community are invited to contribute letters to the editor and/or columns about opinions expressed by the Editorial Advisory Board.

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