An Anne Arundel judge is expected to rule this week after hearing opposing sides Monday in a lawsuit brought by two Republican political candidates who say a newly implemented vote-by-mail system in Annapolis violates City Code and could be the source of voter fraud.
Herb McMillan, a candidate for county executive in 2022, and George Gallagher, who’s running for Annapolis City Council in Ward 6, filed the lawsuit in July requesting the court stop the city from mailing ballots to every registered voter later this month for the upcoming Sept. 21 primary and Nov. 2 general election.
The complaint also notes the code requires voters to pay for returned postage on absentee ballots. The new system would see the city pay for the postage instead.
In a hearing with Circuit Judge Glenn L. Klavans on Monday, the plaintiffs and their attorney Charles Muskin sought to show how they would be harmed by the city’s actions. While attorneys for the city and the county elections board argued that state election law, a City Council resolution and the ongoing states of emergency in Annapolis and Maryland give the city the power to introduce a vote-by-mail option.
After three hours of testimony, Klavans said he would make a decision in the case “in the next couple days.”
If Annapolis does not follow its City Code, voters could lose trust in the electoral process, McMillan said during a lengthy cross-examination, in which he called the voting system approved by the Annapolis Board of Supervisors of Elections in May unjust and illegal. An unelected and majority-Democratic board should not be able to change the rules before an election; that should be up to the City Council said McMillan, a former city alderman and delegate representing Annapolis.
“If all of these ballots are mailed out …. I think it will increase the potential for fraud,” he said. “That undermines confidence in the voting system, and I think that affects me personally, and I think it affects society in general.”
Assistant City Attorney Joel Braithwaite and county elections board attorney James Praley argued changing the election process just six weeks before the primary could confuse some voters and disenfranchise others. Braithwaite pointed to a resolution passed last year, R-35-20, which authorized the city to contract with the county board of elections to administer the elections and provide a vote by mail option. The resolution is one of several pieces of evidence that gives the city the ability to change how it runs its elections, he said.
Election officials have stressed that voter fraud such as voting twice or voting for someone else is rare during countywide elections when hundreds of thousands of voters cast ballots and even less so during city races when turnout is notoriously poor.
“The worst thing that can happen is that 26,000 people receive a ballot to cast. They are registered voters,” Praley said. “There’s nothing shown that there is any fraud when you have vote by mail … and it’s in the public interest to have an election where everyone gets to exercise the right to vote.”
During the hearing, Braithwaite announced to the courtroom that County Executive Steuart Pittman would require county employees and people who enter county buildings to wear masks inside starting Thursday.
The attorney offered it as further evidence that a vote-by-mail option will be necessary heading into the fall as positive coronavirus cases are expected to increase as the delta variant spreads. If the system is changed, the city would also incur additional costs for education, sending out notices and hiring additional election judges at polling places, he said. About $343,000 is currently budgeted to administer the elections.
“We know that the city would be irreparably harmed … because there is nothing that the city can do to replace the right to vote once it’s gone,” Braithwaite said, comparing such a change in the voting system to turning around an aircraft carrier.
Gallagher relayed anecdotal evidence of recent experiences he had canvassing in his ward, including door-knocking at homes that listed some registered voters at the address who no longer lived there. Because some city races can be decided by a handful of votes, Gallagher said, the new system impacts him personally.
“This indicates to me — what I just found at five addresses — that I, as a candidate in Ward 6, could be harmed,” he said.
Both candidates maintain they are not seeking to limit voting rights or stop anyone from voting. Several times, McMillan referenced issues that occurred during Maryland’s 2020 presidential primary, which was plagued by long lines and errors on ballots that were attributed to an outside vendor. There have been no complaints of fraud in that election.
“I and my fellow citizens are harmed whenever government fails to follow its own laws without justification,” he said, “and this is a classic example of that.”