The swearing in Monday of the well qualified and well regarded Justin Ready to a vacant seat representing Carroll County in the state Senate may not, unfortunately, be the last of the drama stemming from Gov. Larry Hogan's appointment of the incumbent, Joe Getty, to a position in his administration. Three members of the county GOP central committee are suing in an effort to force the governor instead to name the committee's original choice, former Carroll Commissioner Robin Frazier, to the seat. They failed to secure an injunction to stop Mr. Ready from being sworn in, and we expect they will lose on the merits should they continue to pursue litigation. But the whole mess underscores the haphazard way Maryland fills vacancies in the legislature.
Thanks to a 2013 case involving a vacancy in Prince George's County, it's quite clear that Governor Hogan would have been well within his rights to request that the central committee rescind its initial nomination of Ms. Frazier. (Given that Ms. Frazier was twice rejected by voters in the 2014 election and is known chiefly for vowing to go to jail rather than make a non-sectarian prayer at the start of council meetings — not to mention singing a state of the county address to the tune of "Summertime" — he was also well within the bounds of good sense.)
In the Prince George's case, the Democratic central committee had nominated a candidate, Gregory Hall, to fill a vacancy created when an incumbent delegate was forced from office because of a criminal conviction. After the committee forwarded his name to Gov. Martin O'Malley, those involved learned that Mr. Hall had years earlier been convicted on a misdemeanor gun charge. Mr. O'Malley (again, quite rightly), requested that the committee rescind Mr. Hall's name and submit a new one. Mr. Hall sued, contending that under the state constitution, once a central committee submits a name to the governor, he has no choice but to make the appointment.
The case went to the Court of Appeals, which ruled that that the matter is analogous to a basic principle of contract law that an offer may be rescinded before it is accepted. Similarly, the court ruled, the central committee can rescind a nomination before a formal appointment is made. The case this time is a bit different, in that Mr. Hogan did not ask the central committee to rescind the nomination but instead to send him three names from which he could choose. But it's no great stretch under the court's previous ruling to say that a central committee could also modify a nomination before a governor acts on it.
The plaintiffs in this case argue, though, that the central committee had no authority under the constitution to send more than one name to the governor. But the language in question is a bit odd and ambiguous: "the governor shall appoint a person to fill such vacancy from a person whose name shall be submitted to him in writing, within thirty days after the occurrence of the vacancy, by the Central Committee." In 2013, the court observed that interpretation of the rules should further "the goal of ensuring that the process is a deliberative one," so it would seem unlikely that it would object to a committee offering the governor multiple choices, something the governor has subsequently requested other central committees to do in filling vacancies. For that matter, the question of whether the governor is actually bound by a central committee's recommendation isn't settled either.
But the court doesn't need to get into any of that to arrive at the conclusion that Ms. Frazier has no special claim to the position. One thing the constitution and case law are fairly clear on is the sequence and timing of events surrounding a vacancy. The central committee has 30 days after the occurrence of the vacancy to submit a name to the governor, and he has 15 days after he receives a name to make an appointment. But the original nomination of Ms. Frazier came on Jan. 9, and Mr. Getty did not resign his seat until two weeks later, on Jan. 23. As such, even if the courts did find that the committee erred in sending three names to the governor, it does not follow that the position would default to Ms. Frazier.
The process appears likely to work out in this case, as it did two years ago in Prince George's County, because the central committee and the governor were willing to cooperate. That's not surprising since, in both instances, everyone was on the same team, so to speak, from a party affiliation standpoint. But what if that hadn't been the case? Perhaps a Democratic governor would have been more than happy to appoint a singing senator with weak support among voters rather than someone who would be an able spokesman for the conservative cause. The only real cure here is to take the question of who should represent the people away from the insiders, be they central committee members or the governor, and give it to the people by means of a special election.