Former delegate, now Senator Craig Zucker is poised to accomplish a unique feat. A few weeks ago, still a delegate, Zucker voted to override Governor Larry Hogan’s veto on the bill to expand voting rights for ex-felons. Now a senator, Zucker is expected to again vote to override the Hogan veto, and may well be the decisive 29th vote.
Is this legal? According to Bryan Sears of the Daily Record, Senate President Mike Miller asked for guidance from the Office of the Attorney General, and got an answer: yes, it is.
On Thursday, Senate President Thomas V. Mike Miller Jr. acknowledged the unique nature of the vote but said it was legal according to the Maryland Constitution and that he had an advisory letter from the attorney general.
That letter, acquired by The Daily Record, leave the door open to a counter argument to Miller’s position.
Sandra Benson Brantley, counsel to the General Assembly, in her advisory letter, writes that “The prospect of a single legislator voting twice on the same legislation — once as a delegate and once as a senator — creates an overlap between the two houses that is, at a minimum, in tension with (the Maryland Constitution) and the court’s construction of it.”
But Brantley wrote that the state constitution grants the legislature to “be the judge of qualifications and elections of members. If the Senate considers the individual in question a member of the Senate when the veto override vote is taken in the Senate, it should be considered a valid vote.”
The advice letter is not the same as an official opinion from the attorney general and is not legally binding.
“Nevertheless, it is my view that a qualified member of a legislative body is entitled to vote on any legislation before that body,” wrote Brantley.
“In summary, although there is a potential counterargument that allowing a legislator to vote twice on the same legislation violates the requirement that the two houses of the legislature be “distinct’ … the more reasonable and pervasive view is that a member of the Senate who was appointed to fill a vacancy…may vote as the qualified senator of his or her district. I can find no authority in Maryland law or elsewhere that precludes the senator from voting under these circumstances.”
This sounds right to me. Courts are generally very hesitant to get into internal matters of legislative bodies, believing that it is the body itself that must judge the qualifications of members, for instance.
And the fact that there’s a “counterargument” is not remotely unusual. If a question is murky enough to seek the advice of the AG - even informally - there’s ALWAYS a counterargument. The question for the lawyer asked to answer the question is which side is the BETTER argument. From Sears’ description, I’d say Brantley is right.
But it would be nice to be able to read the whole thing. A peeve, and not just for Sears. If there’s a document that is critical to a story, post it somewhere and link to it. If all else fails, take a picture of it and put it in your post. It’s all well and good to discuss what a document says, but it’s also important to let people see it and evaluate it for themselves.
The vote on the veto override has now been postponed to Tuesday, February 9.