An Anne Arundel County judge has dismissed a lawsuit brought by two Republican political candidates that sought to block Annapolis from mailing ballots to all registered voters in its upcoming primary and general elections.
In a seven-page opinion issued Monday, Circuit Judge Glenn Klavans wrote that Republican Herb McMillan, a county executive candidate, and George Gallagher, a candidate for the City Council Ward 6 seat waited too long to take legal action after learning of the city’s plans to mail ballots to voters in mid-June. Klavans ordered the lawsuit, which was filed in late July, be dismissed with prejudice, which means a new lawsuit can’t be filed on the same premise.
McMillan and Gallagher said they are considering an appeal of the ruling.
“We’re disappointed that the judge chose not to address the city’s violation of its charter and laws, but instead narrowly focused on the issue of timeliness,” McMillan said in a statement. “It is our view that our actions were timely, the city is breaking their own charter and laws, and we’re considering an appeal. We’ll continue to fight for elections that are free, fair, accessible - and follow the law.”
Through a spokesperson, City Attorney Mike Lyles said, “We’re pleased with the court’s ruling and the mayor and city council, our clients, are looking forward to a safe and efficient election with high voter turnout.”
At a hearing in the case last week, McMillan and Gallagher said they learned of the plans as late as June 25 despite officials having discussed the possibility of introducing a vote-by-mail option as early as last summer, Klavans wrote. In Maryland, there is a 10-day statute of limitations for filing election challenges.
McMillan and Gallagher “offered no valid explanation” as to why they waited nearly a month to file a lawsuit, which constituted “an unreasonable delay,” he wrote, later adding that the candidates’ “alleged difficulties researching the matter and securing counsel are not sufficient excuses when weighed against the public policy interest of swiftly resolving legitimate election disputes.”
Gallagher called Klavan’s ruling “specious” and didn’t address the merits of the complaint.
The Republicans contend they sought other avenues to address what they saw as a violation of City Code prior to taking legal action, including reaching out to Alderman Fred Paone, R-Ward 2. Paone raised concerns about the election process at a June 28 City Council meeting and was told it would be discussed at a July 15 council work session attended by elections officials.
One week after the work session, the candidates filed a complaint in Circuit Court.
“You don’t go to the court directly. You don’t assume that your elected officials won’t meet their legal obligations. You give them the opportunity to meet their legal obligations,” Gallagher said. “And when you see that as a taxpayer, and as a resident and a voter, that those actions won’t take place well then, of course, you go to the last option which is your legal option.”
In his opinion, Klavans appeared to agree with an argument raised by attorneys for the city and the Anne Arundel election board, who contended that allowing a vote-by-mail option was critical to maintaining voter access during the pandemic.
The Annapolis City Council passed a resolution on July 13, 2020, authorizing the city and county boards of election to enter into a contract to administer the 2021 election and “to provide for the option of voting by mail.” The Republican candidates have said a resolution does not carry the weight of the law.
With about three weeks until the election officials begin mailing out ballots for the Sept. 21 primary, and plans to staff eight polling places across the city “essentially complete,” a ruling in favor of the Republican candidates would have required “significant voter noticing and education of the eleventh-hour change to the electoral process,” Klavans wrote.
“In the context of a now surging COVID-19 variant, an increased potential for in-person voting, staffing shortages, and a disinclination for voters to participate in the election is a real probability,” he wrote. “A disruption in election procedures so close to an impending election poses a serious threat to an orderly election process.”
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McMillan and Gallagher had also argued that mailing ballots to all registered voters violated City Code and could be a source of voter fraud. Klavans did not address either issue in his opinion, nor did he opine on allegations made by the two candidates that election officials were violating City Code by paying the postage for mailed ballots.
The city is set to begin mailing ballots for the primary election on or around Aug. 30.
Democratic Mayor Gavin Buckley is seeking a second term in office; all seven Democratic incumbents on the City Council have also filed to run again. Three will face primary challengers.
Only voters who live in wards with contested primaries will receive a ballot. Those are Democratic races in Ward 3, Ward 4 and Ward 8. None of the Republican primaries are contested. Unopposed aldermanic candidates will automatically become the nominee in the Nov. 2 general election.
Buckley will likely face Republican Steve Strawn in the general election. Four Republican City Council candidates in Ward 2, Ward 5, Ward 6 and Ward 8 are seeking their party’s nomination.
Monday was the deadline for party central committees to nominate candidates for vacant races.
The Annapolis elections board will meet Tuesday to consider any late candidate nominations.
A previous version indicated the wrong date for the Annapolis primary elections. The primary election will take place on Sept. 21.