MoCo Politics Fought The Law, And The Law Lost

It didn’t end up mattering - at least not directly - but one aspect of Pam Queen’s appointment points up an enormous problem: the whispery, gossipy way that things get done in Montgomery County politics. Why not come out and have a debate about the merits of an issue? Because it’s more effective, and definitely more efficient, just to pass along some whispered rumor or claim that has no basis in fact, or in this case in law. Consider the last three paragraphs of Lou Peck’s writeup today:

The issue of Taylor’s eligibility for the District 14 seat also surfaced days prior to the vote, after it was discovered that—as of early December—he was registered to vote at a Silver Spring residence outside of District 14. Taylor told MCDCC Chairman Darrell Anderson that he had switched his registration to that address more than two years ago, when he was unsuccessfully pursuing a vacant seat on the County Council. But he then moved his registration back to an address in District 14 late last year—to a home Taylor, 49, said he has owned in the Ashton area for nearly a quarter of a century.

“Are all three of you eligible to run and serve as delegate having been a resident for at least six months prior to this date?” veteran MCDCC member Alan Banov asked the candidates, alluding to a provision in the Maryland Constitution requiring a delegate from a given district to have “resided in that district for six months” preceding his or her election.

While Anderson sought to deflect Banov’s query, sources said that had Taylor been recommended by the committee, his appointment could have possibly come under challenge, due to the change in his voting registration to District 14 barely two months ago.

The problem? The assumption - never discussed in the open, merely assumed and then whispered about, is that the constitutional provision containing a six month residency requirement applies to the appointment process.

I’m here to tell you - it doesn’t. As a lawyer, I rarely say I’m certain of much of anything, but I’m pretty damn certain in this case. So much so that I’m going to show you how I got to this conclusion. Law school is now in session.

I got a number of contacts this week, asking me to write about the provision, so I looked at it. Article III, Section 9 of the Constitution. Here’s what it says:

A person is eligible to serve as a Senator or Delegate, who on the date of his election, (1) is a citizen of the State of Maryland, (2) has resided therein for at least one year next preceding that date, and (3) if the district which he has been chosen to represent has been established for at least six months prior to the date of his election, has resided in that district for six months next preceding that date.

For purposes of an “election,” the requirement is clear: a senator or delegate must have resided in his or her district for at least “six months next preceding that date” (namely, the election). Seems straightforward, right?

No such thing, folks. Next question: is an appointment to fill a vacancy an “election” for purposes of what you just read? In a vacuum, you could very plausibly argue that the answer is yes. A different kind of election, but an election nevertheless. I could also argue that no, it’s not, because there’s a whole different provision that deal with filling legislative vacancies (Article III, Section 13, which we’ll get to in a minute).

But words in a statute (or a constitution) aren’t interpreted in a vacuum. They’re to be analyzed in light of other relevant and related provisions. And when we do that, the answer, I submit, becomes very, very clear.

First, let’s look at Article III, Section 7, which is conveniently entitled “Time of holding elections.” Seems like it might be helpful, right? There’s that word “election” in there, after all.

The election for Senators and Delegates shall take place on the Tuesday next, after the first Monday in the month of November, nineteen hundred and fifty-eight, and in every fourth year thereafter.

That certainly doesn’t support the argument that an appointment to fill a vacancy in February of a presidential election year is an “election,” does it? No, because “elections” are held in November of the midterm (or in state terms, gubernatorial) election year.

But that’s not the end of the analysis, either. Is there a related constitutional provision that maybe makes it even clearer that Section 9 doesn’t apply?

Why, yes there is, thanks for asking. In fact, it’s the one that MCDCC chair Darrell Anderson was reciting from at the beginning of the meeting and again when the voting began. Article III, Section 13. Anderson read extensively from subsection (a) of the constitutional provision - he should have kept reading. Let’s look at (b):

[I]n submitting a name to the Governor to fill a vacancy in a Legislative or Delegate district, as the case may be, in any of the twenty-three counties of Maryland, the Central Committee or committees shall follow these provisions:

* * *
If the vacancy occurs in a district which has boundaries comprising a portion of one county, the Central Committee of that county shall submit the name of a resident of the district.

This is the exact same provision that the committee was charged with applying last night. Why didn’t somebody read the entire thing? District 14 is comprised of a “portion of one county,” Montgomery County. The only requirement is that the appointed person be “a resident,” as of the time of the appointment. No mention of a six month residency requirement, and a clear indication that the drafters of Article III saw a distinct difference between an “election” and an “appointment.” One residency requirement for an election and one for an appointment.

Any questions? There shouldn’t be. This is as simple a legal question as I’ve had to face in a long time. Class dismissed. Now back to the politics.

So how it did it happen that everyone (and I do mean everyone) involved in last night’s process was working under the grossly mistaken assumption that a six month residency requirement applied? Including at least a few lawyers, I might add. And that as a result of that assumption, an inquiry was prompted, which Darrell Anderson unilaterally undertook to conduct by asking Herman Taylor a whole lot of questions that, if somebody had bothered to ask a lawyer, were completely and totally irrelevant. Which sparked a complaint from the local chapter of the NAACP that Taylor was being discriminated against. Which led to whispers and gossip - I’m a blogger, I heard ALL about it - that Taylor was not eligible to be appointed when he was.

Did it cost Taylor votes? I’m sure it did. Would it have changed the outcome? No idea, and probably impossible to ever know. And to be utterly transparent, I wasn’t in favor of anyone - as a pro-choice activist, I have grave concerns about Herman Taylor. His record isn’t good at all, but he sought to allay those concerns. Was it enough? Not for me to say, I’m not on the committee and it’s not my district.

My concern is a different one. It’s about the way this got done. None of this was done with any transparency. Anderson did what he did without telling anyone, as far as I can see. Nobody appears to have sought the advice of an attorney, although I was told that allegedly there’s an Attorney General opinion that says that the six month rule applies. I’ve asked around and nobody seems to have it. I’d be shocked if such a document exists given my analysis above.

Rumors were rampant, and in my opinion that was the point. Take a position, start a whispering campaign, and taint the entire process. And in this case the aspersions being cast were 100% flatly and totally wrong. What kind of way to make decisions is this? There was a real debate to be had, between competing visions and contrasting qualifications, and that debate never really happened at all. Instead, a shadow campaign of misinformation took center stage and dominated the decisive last several days leading up to last night’s vote.

The song was wrong. Sometimes fighting the law can benefit you. But it doesn’t make you right.

This is a shitty way to make political decisions, but what I’ve just described is not an exception. Its the rule. It’s the way we roll here in Montgomery County. Everyone knows it, but nobody talks about it. Well, sometime in the next few days (this is already too long), I’m gonna talk some more about it. You will not want to miss it.

In the meantime, enjoy this free legal advice from a lawyer who’s actually practiced election law. How often do you get to say that?