The highest court in Maryland considered — but ultimately rejected — a last-minute request on Monday for state elections officials to provide incarcerated pre-trial and non-felon inmates in Maryland better access to the ballot box during Tuesday's national and local elections, in part by installing polling stations within correctional facilities.
J. Wyndal Gordon, a civil rights attorney in Baltimore, had first brought the emergency case — which also asked the state to directly facilitate absentee ballot voting among those who are locked up but still eligible to vote — in Baltimore Circuit Court. After the lower court rejected his request for a temporary restraining order last week, he appealed to the Court of Appeals, which heard arguments in the case on Monday.
"I'm all about voting, because that's what's critically important. Voting is the cornerstone of our democracy, and it shouldn't be abridged or denied merely because you're behind bars," Gordon told the high court in Annapolis.
Gordon brought the case on behalf of individual inmates and the group Voters Organized for the Integrity of City Elections.
Assistant Maryland Attorney General Julia Doyle Bernhardt, an attorney for the defendant Baltimore City Board of Elections, argued that incarcerated individuals with the right to vote can already request an absentee ballot through the mail — just like other Marylanders who can't make it to polling stations. They can also have an attorney or family member do so for them as an authorized agent.
Bernhardt said the state has no duty to directly facilitate that process for inmates, as it does for individuals in assisted-living and nursing homes. She also said Gordon had presented no evidence that the failure to provide such access to inmates could mean a change in the outcome of any election on Tuesday, which she said was required for any such claim under the state's election statute.
"Absentee ballot is the method of voting for those who are unable to go to early voting or to vote in person on election day. That's what state law provides. So without some sort of allegation that there is some sort of systemic denial of absentee voting that could affect the outcome of an election, then I don't see a cause of action," Bernhardt said.
She said there was evidence that corrections officials had informed inmates about filing absentee ballots, and helped some do so, despite such actions being voluntary.
"There's no evidence, none, that there is any interference by anyone in the state with the right of detainees to vote," she said.
Judges on the high court expressed skepticism about putting polling stations in jails, and specifically with the practicality of doing so on such short notice. They asked Bernhardt whether, in the future, efforts could be made to improve awareness among inmates about the absentee ballot process.
Bernhardt suggested that Gordon could bring another lawsuit, or amend his current one in the lower court, to request specific accommodations during future elections.
In an order released Monday after the arguments, the high court dismissed Gordon's request for a temporary restraining order and remanded the case back to Baltimore Circuit Court, with directions that the lower court consider the case again after the high court issues an opinion on the matter.
That opinion had not been publicly filed as of Tuesday afternoon.