Fritszche v. Board of Elections

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Fritszche v. Maryland State Board of Elections, No. 73, September Term 2006. Opinion by Bell, C.J. ELECTIONS - ABSENTEE VOTING - DEADLINES The me re occurren ce and/or e xperiencin g of proc essing prob lems with a bsentee ba llots does not justify an extension of time for the filing of such ballots, absent proof that those problems were the direct cause for voters not voting. IN THE COURT OF APPEALS OF MARYLAND No. 73 September Term, 2006 ______________________________________ MELISANDE C. FRITSZCHE, ET AL. v. MARYLAND STATE BOARD OF ELECTIONS, ET AL. ______________________________________ Bell, C.J. Raker *Wilner Harrell Battaglia Greene Eldridge, John C. (Retired, specially assigned), JJ. ______________________________________ Opinion by Bell, C.J. ______________________________________ Filed: February 12, 2007 *Wilner, J., now retired, participated in the hearing and conference of this case while an active membe r of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. This is an interlocu tory appe al to this C ourt, see Maryland Code (2003, 2006 Cum. Supp.) § 12-203 (a) (3) of the Election Law Article ( E L ), 1 from the d ecision of a Circuit Court in an election dispute. Th e petitioner, a M aryland residen t and registere d voter in Baltimore County, is currently a student at a college in New York. Because she is living o utof-state while attending college, she could not vote personally at her precinct polling station during the 2006 Maryland gubernatorial election. Rather, she intended to vote by absentee ballot. For that intent to be accomplished, her ballot had to be m ailed to the C ounty Board of Electio ns bef ore Ele ction D ay. See Code of Maryland Regulations ( COMAR ) 33.11.03.08(b). 2 1 Maryland C ode (200 3, 2006 C um. Sup p.) § 12-20 3 of the E lection Law Article provides, as relevant: § 12-203. Proce dure Genera lly (a) A proceeding under this subtitle shall be conducted in accordance with the Maryland R ules, excep t that: (1) the proceeding shall be heard and decided without a jury and as expeditiously as the circumstances require; (2) on the request of a party or sua sponte, the chief administrative judge of the circu it court may assig n the case to a three-judg e panel of circuit court judges; and (3) an ap peal shall be ta ken directly to the C ourt of A ppeals w ithin 5 days of the date of the dec ision of the circuit court. (Emphasis add ed). 2 COMA R 33.11.03.08 (b) provides: B. In G eneral. An absentee b allot is conside red to have been time ly received on ly if: (1) The ballot is received by the local board office before the polls close on election day; or (2) The b allot: (a) Is received by the local board office from the United States Postal Service or a private m ail carrier: The petitioner alleges that in mid-August 2 006, she requested o f the County Board of Elections in Catonsville, Maryland, by both facsimile and mail, an absentee ballot for both the primary and the general election.3 The absentee ballot for the general election, bearing the postmark of November 1, 2006, did not arrive in the mail until Monday, November 6, 2006. Althoug h the petitione r received it b efore mid night, at about 8:45p.m., when she returned home, the time for all routine mail pickups had passed and no post offices near her were open at that time. She did not mail the absentee ballot until the next day, November 7, 2006. Because Election Day was on November 7, 2006, and the ballot was not completed and mailed be fore election day, it was no t be counte d in the final tally. The petitioner, therefore, contends that [d]espite Appellants [4] diligence in m eeting their ob ligation to (i) On or before 10 a.m. on the second W ednesday after a primary election preceding a gubernatorial election; or (ii) On or before 10 a.m. on the second Friday after a general or special election or in a primary election preceding a presidential election; and (b) Was mailed before election day, as verified: (i) By a postmark of the United States Postal Service, an Army Post Office, a Fleet Post Office, or the postal service of any other country; or (ii) By the voter's affidavit that the ballot was completed and mailed before election day, if the return envelope does not contain a postm ark or th e postm ark is illeg ible. (Emphasis add ed). 3 An absentee ballot for the primary election is not at issue here. 4 Initially, there were two plaintiffs. The second plaintiff was Mr. Malcolm G. Vinzant, Jr. The initial complaint described Mr. Vinzant as a resident of Baltimore, 2 timely request abs entee ballots, A ppellants w ere not able to vote in this election by virtue of Code of Maryland Regulations ( COMAR ) 33.11.03.08(b), which requires that absentee ballots b e postm arked b y Nove mber 6 , 2006. The petitioners filed, on Novemb er 6, 2006, a comp laint in the Circuit Court for Anne Arundel County. The complaint contained four counts, asserting violations of the Maryland Constitution and Declaration of Rights. Count 1 alleged a violation of A rticle I, §§ 1 5 and 3 6 of the Maryland Constitution and Article 7 of the Declaration of Rights.7 Count 2 alleged Maryland, where he is registered to vote. On October 31, 2006, he alleged, his wife traveled to the Baltimore City Board of Elections and applied for an absentee ballot, to be sent to Mr. Vinzant at his nursing home residence. The complaint further alleged that, as of November 6, 2006, the ballot had not yet arrived, rendering him unable to execute and postmark the ballot by November 6, 2006, as required by law. Due to his physical restrictions, and because his wife would not be able to assist him, he would, thus, be unable to a ccess a po lling station ind ependen tly, and, therefore , to exercise h is right to vote. Mr. Vin zant s claim was rend ered moo t, howeve r, after the Bo ard contac ted him pers onally as a courtesy, and he w as ab le to v ote succe ssfu lly. 5 M.D. CON ST. art. I, § 1 provides: § 1. Electio ns by ballot; qua lifications to vo te All elections shall be by ballot. Every citizen of the United States, of the age of 18 years or upwards, who is a resident of the State as of the time for the closing of registration next preceding the election, shall be entitled to vote in the ward or election district in which he resid es at all ele ctions to be held in this Sta te. A person once entitled to vo te in any election district, shall be entitled to vote there until he shall h ave acqu ired a residen ce in anoth er election dis trict or ward in this State. 6 M.D. CON ST. art. I, § 3 provides: § 3. Absentee voting The G eneral As sembly of M aryland shall ha ve pow er to provid e by suitable enactment for voting by qualified voters of the State of Maryland who are absent at the time of any election in which they are entitled to vote and for voting by other 3 a violation of the equal protection guarantee of Article 24 of the Declaration of Rights.8 Count 3 alleged a violation of the equal protection guaranteed by the Fourteenth Amendment to the federal Constitution.9 Count 4 purported to assert a violation of EL § 9-304,10 made qualified voters who are unable to vote personally and for the manner in which and the time and place at which such absent voters may vote, and for the canvass and return o f their v otes. 7 Article 7 of the Declaration of Rights of the Maryland Constitution provides: Article 7. Free and frequent elections; right of suffrage That the right of the People to participate in the Legislature is the best security of liberty and the foundation of all free Government; for this purpose, elections ought to be free and frequent; and every citizen having the qualifications prescribed by the Co nstitution , ought t o have the righ t of suf frage. 8 Article 24 of the Declaration of Rights of the Maryland Constitution provides: Article 24. Due process That no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land. 9 U.S. CO NST. am end. XIV provides, as relevant: AMENDMENT XIV. CITIZENSHIP; PRIVILEGES AND IMMUNITIES; DUE PROCESS; EQUAL PROTECTION; APPOINTMENT OF REPRESENTATION; DISQUALIFICATION OF OFFICERS; PUBLIC DEBT; ENFORCEMENT Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdic tion the e qual pr otection of the la ws. 10 Maryland C ode (200 3, 2006 C um. Sup p.) § 9-304 of the Elec tion Law Article provides: § 9-304. Qualification for absentee voting An individual may vote by absentee ballot except to the extent preempted under an app licable f ederal la w. 4 actionable by Article 19 of the Declaration of Rights.11 The petitioners asked for two forms of relief: that the respondent, the Maryland S tate Board of Elections ( the Board ), 12 accept all absentee ballots postmarked on Election Day, Tue sday, Novem ber 7, 2006 , or, in the alterna tive, preserve all such ballo ts, until such time as a full hearing on this m atter ma y be cond ucted. 13 In support of the former, the petitioner noted the G overnor s u rging of citiz ens to vote by absentee ballot, and that a deficiency in the number of ballots available prevented a number of voters who had requested the ballots from being able to return them in the time frame allotted by the Board. This, the petitioner argues, has the effect of disenfranchising voters, through n o fault of th eir own; the Board d id not get the ballots out in tim e, putting those voters in the position of not having their votes counted. Thus, the petitioner urges, in order to give them that fundamental right to vote, ... we simply extend the time period for 11 Article 19 of the Declaration of Rights of the Maryland Constitution provides: Article 19 . Relief for in jury to person o r property That ev ery man, for a ny injury done to h im in his pers on or prop erty, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, fre ely without sale, fu lly withou t any d enia l, and spee dily w ithout de lay, accord ing to th e Law of the L and. 12 While the Maryland S tate Board of Election s is the prima ry responden t in this case, Linda H. Lamone, State Administrator, Gilles W. Burger, Chairman, Bobbie S. Mack, Vice Chairman, Joan Beck, Boardmember, Andrew V. Jezik, Boardmember, and Susan Wide rman, Boardm ember, in their official capacities as A dministrators and Boa rd Members of the M aryland State Board of Elections were also named respondents. 13 During the hearing, the petitioner withdrew her request for the second form of relief, after be ing inform ed that it wa s the practice of the Bo ard to retain th e docum ents she sought to have preserved for 22 months. 5 their votes to be counted so that they are postmarked at the end of [November 7] as opposed to [No vemb er 6]. In response, the respondent points out that there is no constitutional right to an absentee ballot. They, in support of that proposition, cite McDonald v. Board of Election Commissione rs of Chicago, 394 U.S. 802, 807-808, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739, 745 (1969), in which the Court held that absentee status, which was designed to make voting more available to some persons who cannot easily travel to polling places, does not, in itself, deny the right to exercise the franchise. Further, the respondent argues, the mere fact that the General Assembly of Maryland has made an absentee ballot process available does not mean that there is a constitutional righ t. Certain ly not a co nstitution al right th at is prote cted by a s crutiny an alysis. Thus, the respondent argues that the regulation that designated the date that absentee ballots should be mailed is a reasonab le one, espec ially in light of the fa ct that voters c ould still turn their absentee ballots in in-person if they were able to. Citing the four factor test of Department of Transportation v. Armacost, 299 Md. 392 , 474 A.2d 191 (1984), emphasizing the first factor, irreparable inju ry, the respond ent observ es that very little evidence of irreparable injury, if any, was provided by the comp laint. They point out that no evidence was presented by the plaintiffs concerning the processing of absentee ballots, and neither of the two named plaintiffs testified, nor provided affidavits in support of the motion for a TRO. They also challenge the petitioners standing, arguing that there was no evidence that these two plaintiffs act ually have the injury which their counsel alleges they have 6 suffer ed. Moreover, the respondent is not convinced that the remedy sought - extending the voting deadline an additional day - would address the issue complained of or whether the fact that the State Board an d the local b oards had some pro blems pro cessing ba llots is responsible for the injury that these particular Plaintiffs have suffered. The respondent asserts, as to the former, [i]t is completely speculative that if the Court orders the deadline extended by an additional d ay that these tw o Plaintiffs w ill, in fact, receive their ballots and will be p ermitted to vote in the wa y they say. In an oral opinion, the Circuit Court denied the plaintiffs request f or temporary restraining order and a preliminary injunction, noting: [I]t is hard for me to ignore what Judge Wilner wrote in Lamb v. Hammond. Especially the last part that says, It would be a greater evil for the C ourts to ignore the law itself by permitting election officials to ignore statutory requireme nts designed to safeguard the integrity of elections, which is the rights of the vote rs. And candidly, after reading all the material and looking at the standards, regretfully, I am not convinced that a TRO or a tem porary injunction should be granted in this matter. I don t think the burden has been met. So , I am go ing to d eny the m otion. . . . Prior to the Circuit Court s issuance of its written order and mandate, the p etitioner, on November 8, 2006, pursuant to EL § 12-203 (a) (3), filed a direct interlocu tory appeal to this Court, a nd petiti oned th is Cou rt for a w rit of cer tiorari, w hich w e grante d. Fritzsche v. State, __ Md. __, __ A .2d __ (2006). Oral argument was held on November 13, 2006, an d an orde r affirming the Circuit Court s judgmen t followed. This opinion explains the reasons for tha t order. 7 A. Maryland Rule 15-501 (b) d efin es a prelimin ary injunction as an injunction granted after opportunity for a full adversary hearing on the propriety of its issuance but before a final determ ination o f the m erits of th e action . The granting of tem porary restraining orders and preliminary injunctions is controlled by Maryland Rule 15-504, which provides, as relevant: (a) Standa rd for G ranting . A temporary res training orde r may be gran ted only if it clearly appears fr om spec ific facts shown by affidavit or other statement under oath that immediate, substantial, an d irreparable harm will result to the person seeking the order before a full adversary hearing can be held on the proprie ty of a pre liminary o r final in junction . Moreover, this Court has enumerated four factors which must be considered by trial courts in deciding whether a TRO should issue: (1) the likeliho od that the p laintiff will suc ceed on th e merits; (2) the balance of convenience determined by whether greater injury would be done to the defendant by granting the injunction than wo uld result fro m its refusa l; (3) whether the plaintiff will suffer irreparable injury unless the injunction is granted; and (4) the public interest. In re Application of Kimmer, 392 M d. 251, 2 60, 896 A.2d 1 006, 10 12 (20 06). See also LeJeune v. Coin Acceptors, Inc., 381 Md. 28 8, 300-301, 849 A .2d 451, 458-59 (2 004); Fogle v. H & G Restaurant, Inc., 337 M d. 441, 654 A.2d 44 9 (1995); Lerner v. Lerner, 306 Md. 771, 776, 511 A.2d 50 1, 504 (19 86); State Dep't of Health and Mental Hygiene v. Baltimore County, 281 M d. 548, 5 54, 383 A.2d 5 1, 55 (1 977). The gravamen of the petitioner s claim is that the Board, in failing to answer the 8 overwhelming call for absentee ballots, has violated both State and Federal law by denying eligible voters the opportunity to vote or, at least, by imposing a severe burden on the right to vote. She notes that following the General Assembly s enactment of legislation, which gave every Maryland voter the right to cast an absentee ballot as long as a timely request was made to the local board of elections, Governor Ehrlich urged the voters to take advantage of this option to avoid long lines and malfunctioning technology at polling places, that as of Thursda y, Novemb er 2, 2006, a pproxim ately 186,000 registered vo ters requeste d to vote by absentee ballot almost triple the number of absentee ballots submitted during the most recent mid-term election in 2002, - and asserts that [a]s a result of this onslaught of absentee ballot requests, local boards of election have been unable to timely fulfill absentee ballot orders, creating a sta tewide em ergency. Th e result, the petitio ner claims, is that many voters did not receive ballots in time to have them postmarked on November 6, 2006. She notes further: According to the Maryland General Assembly s Office of Legislative Audits, problems with the printing and deliver y of absentee ballots to local boards were identified ne arly three weeks ago, during the week of October 16, 2006.[] Despite the early identification of these problems, man y counties simply were not supplied with absentee ballots by the Appellees vendor with any time left for them to timely fu lfill the vo ters abs entee b allot req uests. The petitioner argues that COMAR 33.11.03.08(b), which establishes the November 6, 2006 deadline, represents the discretionary exercise of the Appellees regulatory powers, and that no s tatute req uires this deadlin e. In order to succeed on the merits, the petitioner must show that the election regulation 9 establishing the deadline for the postm ark of abs entee ballots, a s executed and applie d, is arb itrary, capricious or unreasonable. Baltimore Import Car Service & Storage, Inc. v. Maryland Port Auth ority, 258 Md. 335, 342, 265 A.2d 866, 869 (1970). When an administrative agency, such as the Board , is vested w ith discretion, an d exercises it within the scope of its authority, the courts will not intervene and substitute their judgment for that of the administrative body. Baltimore Import Car Service & Storage, Inc., 258 Md. at 342, 265 A.2d at 86 9; Stac y v. M ontg ome ry County, 239 Md. 189, 194, 210 A.2d 540, 543 (1965); Kaufman v. Taxicab Bureau, 236 Md. 476, 204 A.2d 521, 523 (1964 ), cert. denied, 382 U.S. 849, 86 S. Ct. 95, 15 L. Ed. 2d 88 (1965); Serio v. Mayor & C. C. of Baltimore , 208 Md. 545, 551, 119 A.2d 387, 390 (1956); Masson v. Reindollar, 193 Md. 683, 688-689, 69 A.2d 482 (194 9); Gianforte v. Bd. of License Com'rs, 190 Md. 492 , 58 A.2d 902 (1 948). Courts will act, however, where an administrative decision is not supported by facts, or where an action is not within the scope of delegated authority, or is arbitrary, capricious or unreas onable . Baltimore Import Car Service & Storage, Inc., 258 Md. at 342, 265 A.2d at 869; Board of Education of Carroll County v. Allender, 206 Md. 466, 475, 112 A.2d 455, 459 (1955); Heaps v. Cobb, 185 Md. 372, 380, 45 A.2d 73, 76 (19 45); Hecht v. Crook, 184 Md. 2 71, 280 -281, 4 0 A.2d 673, 67 7 (194 4). The petitioner of fers a num ber of exa mples that p oint to the fact that the regulation, as applied, resulted in an unreasonable denial of the absentee voters right to vote. First, the petitioner notes that the Board of Elections of Prince George s County completed its absentee 10 ballot mailing on Saturday, November 4, 2006, allowing at most one business day for absentee ballots to be delivered to voters mailboxes and for voters to complete, sign, and postmark the absente e ballots by No vember 6 , and [f] or voters w ho did no t receive their ballots until the afternoon of November 6, this time period may have been just a matter of hours, if there was any time at all. The petitioner notes that voters with Maryland residences who requested th eir ballots be m ailed out-of -state may not hav e received their ballots at all. Second, the petitioner states that, as of Monday, November 6, 2006, the Maryland State Board of Elections reported that at least 900 absentee ballots were not sent ou t until Satu rday, November 4, 2006, and approximately 2,350 ballots were not sent out u ntil F riday, November 3. Thus, she concludes, [a]s a result of these delays, many voters have not receive d or w ere not a ble to se nd out t heir abs entee b allots by th e postm ark date . The Board, in response, conc ludes [i]t is im possible to d etermine w hether this processing close to the November 6 postmark deadline was due to a large backlog of requests, the timing of the reque sts; or a com bination of thos e facto rs. . . . 14 It points out that [m]any Maryland voters apparently waited until the midnight of the October 31 deadline to request an absentee ballot. COMAR 33.11.02.02D.15 Furthermore, it notes that 14 The Board also maintains that despite the unprecedented number of requests for absentee ballots by Maryland voters, the return rate was well within national norms. 15 COMA R 33.11.02.02D provides: D. Deadline for Receipt of Application. An application under this regulation must be received by the local board as follows: (1) On or before 11:59:59 p.m. of the Tuesday preceding the election for an application submitted by electronic facsimile transmission; and 11 a large number of re quests were proce ssed on the days preceding the Novem ber 6 postmark deadline, and that a large number of absentee ballots that were m ailed in were processed on the days preceding the election. The Board urges upholding the Circuit Court decision, on the basis that: a number of pertinent factors are simply unknown, including: how many ballots will be returned that are postmarked November 7; how many of that number were sent by people who made late requests for the ballots; how many of the November 7 postmarked ballots were sent b y people who received ballots in time to return them by the November 6 deadline but waited to put them in the mail; ho w man y late-arriving ballo ts were du e to tardy mail deliv ery, as opposed to late mailing by the local board; or and any number of other pertinent facts. Some of these facts can be ascertained in the coming days, some can never be ascertained, and none of them was known to the circuit co urt . . . wh en it den ied the p laintiff s reque st for T RO. This C ourt ag rees w ith the B oard. The record is scant and not well developed; as a result, there was very little for the trial court to use in order to gran t a TR O, and, tr ansitivel y, very little for this Cou rt to use to overturn its decision. No evidence was presented showing that, other than the petitioner, particular ballots arrived at particular voters residences too late to permit those voters to vote. Nothing has been presented that establishes a link between the Board s processing of the absentee ballots and the delay in absentee ballot returns. While , to be su re, a number of ballots w ere mailed v ery close to Election D ay, it is unknown which of the ba llots that were postmarked after N ovember 6 were from voters who received them earlier but merely were tardy in returning them and which were ballots that (2) On o r before 4:3 0 p.m. of th e Tuesda y preceding th e election fo r all other ap plication s. 12 were receive d late an d, theref ore, cou ld not h ave be en retur ned ea rlier. This lack of evidence results in the petitioner s failure to establish that the COMAR regulation, as applied, was the primary cause of th e petitioner s in jury, i.e. that it was, as applied, arbitrary, capricious or unreas onable . As articulated by the responde nt, [the petition er s argum ent] would require courts to entertain petitions from prospective voters attesting that they would have mailed the ballot but for their relia nce on the law . This Court will not second guess the decision made by the State Board of Elections to refuse to include any absentee ballots that failed the requirements of COMAR 33.11.03.08(b). B. The petitioner also argues that Lamb strongly suggests that the state must accomm odate Appellants and similarly situated voters by accepting ballots postmarked on November 7, 2006, because Lamb s basic holding was that state election statutes shou ld be strictly a pplied n otwith standin g the ne gligenc e of stat e offic ials. Lamb v. Hammond involved a close race between two candidates for a seat in the House of Delegates. Trailing Lamb by three votes, Hammond challenged the decision of the Board of Elections not to count 24 absentee ballots, 12 of which were rejected unopened, due to a deficiency based on the ballots postmarks, and 12 of which were rejected for other deficiencies. 308 Md. at 290, 518 A.2d at 1059. The trial court opened the 12 unopened ballots and, noting that each voter had signed an affidavit that the ballot had been completed 13 and mailed no later than the day before the election, 308 Md. at 290, 518 A.2d at 1059, ordered the board to accept those votes. That resulted in Hammond being declared the winner by one vote. 308 Md. at 289, 518 A.2d at 1058. Lamb appealed.16 16 Lamb argued that the trial court s decision was improper for lack of jurisdiction, that the H ouse o f Dele gates w as the o nly prope r body to r esolve the con troversy. This Court rejected the jurisdictional argument. First, it noted that, under Md. Code A nn. Art. 33, § 27-10, co ntests conc erning . . . the va lidity of any ballot un der this subtitle shall be decided by the board [ of canvassers] hav ing jurisdiction of the matter and that [a]ny candidate or absentee voter aggrieved by any decision or action of such board shall have the right of appeal to the circuit court for the county to review such decisio n or actio n, and jurisdiction to hear and determine such appeals is hereby conferred upon said courts. 308 Md. at 291, 518 A.2d at 1059. Accordingly, this Court noted, circuit courts have long been vested with a limited jurisdiction to review the actions of administrativ e officials, inc luding elec tion officials, to determine whether those offic ials have exc eeded the authority delega ted to them , and, if so, to dire ct that they act in conform ance with the law. 3 08 Md . at 292, 518 A.2d at 10 60 (1987 ). This autho rity was also granted by the legislative branch, which, after creating the board of canvassers, authorized the courts to perform their ancient and traditional role of seeing to it, upon complain t, that these adm inistrative off icials follow those directio ns and rem ain within the bou nds of their circ umscr ibed au thority. 30 8 Md . at 303, 5 18 A.2 d at 106 5. Separation of powers was not at issue, we explained, as the Court was not overturning a legislative decision, or enjoining the House of Delegates from deciding a contest properly before it; rather, the Court s role is to ensure that those officials do not act arbitrarily or ca priciously, . . . disenfra nchise peo ple who are legally entitled to vote and wh o have ca st their ballots in f ull complian ce with the law, or, con versely, . . . credit votes that are patently unlawful. 308 Md. at 304, 518 A.2d at 1066. The duties of election officia ls can b e judici ally identif ied, its br each c an be ju dicially de termine d, and a p rotectiv e reme dy can be judicia lly molde d. 308 Md. a t 304, 51 8 A.2d at 1066 . Acc ordingly, upon a tim ely complaint th at canvassin g officials h ave impro perly refused to canvass votes that were lawfully cast, the appropriate court has, and may exercise, its traditional jurisdiction. It may inquire into the matter, determine whether the administrativ e officials h ave carried out their min isterial duties in ac cordance with the law, an d, if they have n ot, comm and them to do so. Th at is all that the C ircuit Court w as aske d to do i n this ca se. 308 Md. at 304, 518 A.2d at 1066. 14 The merits of the issue before the Court involved whether the disputed absentee ballots should have been counted pursuant to Md. Code (1957, 1983 Repl. Vol., 1985 Cum. Supp.) Art. 33, § 27-9(c)(1). That statute designated an absentee ballot as timely if: (i) It has been received by the bo ard prior to the closing of the polls on election day; or (ii) 1. It was mail ed befor e ele ction day; 2. The United State[s] Postal Service, or the postal service of any other country, has provided verification of that fact by affixing a mark so indicating o n the cove ring envelo pe; and 3. The board receives the ballot from the United States Postal Service not later than 4 p .m. on th e Wed nesday f ollowi ng elec tion day. (Emp hasis ad ded.) Pursuant to this statute, the Court analyzed the votes and concluded that, despite the affidavits, the ballots were postmarked too late, and, thus , were un time ly. 308 Md. at 308309, 518 A.2d at 1068. Hammond, the winner as a result of the included votes, fought on two separate grounds against this technical noncompliance: (1) that the requirement of verification by postmark is merely directory, that the only mandatory requirement is that the ballot be received by the alternate deadline, and that, as the mandatory requirement has been satisfied, there has been substantial compliance with the law, and (2) that a voter sho uld not be disenfranchised f or technical noncom pliance with the statutory requirement where he or she follows the instructions of the election officials. 308 Md. at 309, 518 A.2d at 1068. This Court dismissed the notion that clear commands from the Legislature may be disregarde d as mere ly directory, explain ing: 15 The Legislature has accorded absentee voters a special privilege not shared by other voters - the p rivilege of h aving their v ote count even though received by the election officials after the polls have closed. Unqualified, or qualified only by a deadline on receipt of the ballot, that privilege could become a distinctly unfair political advantage; it would a llow a group of v oters actually to cast their ballots after the polls had closed, and thus open the way for some very unwholesome machinations. The Legislature was very ca reful to avo id that possibility by requiring not only that the ballot actually be mailed before election day but also that there be an official verification of that fact by means of a postmark. Given the care that the Legislature has traditionally shown in crafting the State election laws, we cannot conceive that it intended those require ments to be othe r than m andato ry. 308 Md. at 309-310, 518 A.2d at 1068-1069. We recognize d that while unimportant mistakes made by election officials should not be allowed to thwart the will of the people freely expressed at the ballot box or that me re irregularities . . . should not b e allowed to set aside what the voters have decided, 308 Md. at 310-3 11, 518 A.2d a t 1069, the Court ha d always strive d to sustain v otes that we re in substantial compliance with the requirements of law, 308 Md. at 311, 518 A.2d at 1069, and has never sanctioned the counting of ballots that were plainly in violation of a law particularly designed to protect the integrity of the elective process. Id. We con cluded: It is unfortun ate that voters should lose their votes by oversight of election officials-and by their own failure to notice that they have not been given authenticated ballots. B ut, as ha s often been sa id, it would be a greater evil for the courts to ignore the law itself by permitting election o fficials to ignore statutory requireme nts designed to safegua rd the integrity of elections, i.e., the rights of all the voters. 308 Md. at 310-311, 518 A.2d at 1069. Thus, while the petitioner interprets Lamb to stand for the propo sition that, state 16 election statutes shou ld be strictly applied notwit hstand ing the n egligen ce of sta te offic ials, Lamb, contrary to the petitioner s belief, does not dictate that the S tate must acco mmod ate the petition er. Instea d, Lamb compels th is Court, in the absence of any clear evidence of the opposite conclusion, to exclude of the noncompliant votes in order to safeguard the election process. 17

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