Legislative Vacancies: Annapolis Update

Last Friday, the Senate Education Health and Environmental Affairs Committee held a hearing on a bill to reform how legislative vacancies are filled in the General Assembly.

It got a cool reception.

The current system to fill state legislative vacancies is … well, it has problems. For some background, check out this December 13 post of mine, or this dramatic tale of Adam’s, based on a true story.

Sen. Rich Madaleno is sponsoring a constitutional amendment to reform the system, with the wise counsel of people like our resident blogger and political scientist David Lublin. The proposed amendment wouldn’t overhaul the current system; party central committees would still make legislative replacements. But under the amendment, if the vacancy occurs during the first two years of the four-year term, then the committee-selected replacements would be temporary. Voters would elect a permanent replacement during the midterm election (which, in Maryland, is the same as presidential election years) to serve until the end of the term.

So when Madaleno offered his testimony in support of the bill last Friday, did anyone speak out against it? Nope.

But the committee’s reaction was cool at best. It would seem unlikely that the bill will be going anywhere this session. It may be for the same reasons that Madaleno had predicted back in December. Legislators just don't see this as a problem. The rapid loss of so many Montgomery County state legislators within a year of the 2006 election is not the norm, and many delegates and senators may see it as "just" a Montgomery County problem.

I also suspect that few, if any, constituents or lobbyists talk to delegates and senators about this issue. So the only thing that many legislators would get for supporting this bill would be a group of angry Central Committee members.

Interestingly enough, and previously unbeknownst to me, a similar bill was introduced back in 2003 by Del. Elizabeth Bobo (D - Howard County). It got a committee hearing and was never heard from again. My guess is that we'll see a replay of that fizzle this year.

But that's okay. Even if the amendment were passed tomorrow and approved by the voters in November, the first midterm where it could come into play would not be until 2012. So there is no rush: We’ll get the same result even if the amendment doesn’t pass until 2010.

So Madaleno will have to talk it up among his colleagues in the Senate over the next couple of years. Perhaps he’ll have a House ally in Bobo. Whatever he does, certain bloggers certainly won't be quiet about this issue until it is resolved.

For those of you who keep track of these things, here's a transcript of Madaleno's committee testimony:

SB693 is a constitutional amendment that would require vacancies in the General Assembly that occur during the first half of the four-year term to be filled by a special election to coincide with the presidential election. The relevant party central committee would still nominate a replacement to serve until the results of the special election are certified.

Unfortunately, both chambers of our General Assembly have lost members this past year due to a variety of circumstances. We have had three vacancies in the Senate and five in the House of Delegates. The remainder of these terms will be filled by a person who was appointed, not elected. Current law provides that the county central committee of the vacating member’s party to nominate someone to the Governor to fill the remainder of the term. This system has served us well for many years, but the recent spate of reshuffling in our legislature so early after an election has left many of us reviewing this process. Our constituents are troubled by the idea that a person could be appointed to a position so early in a term without any input or say from the majority of the people they represent.

In Montgomery County, the overwhelming majority of those on the parties’ central committees do not live in the district whose Delegate or Senator they are choosing. Although central committee members are elected, most voters are unfamiliar as to what a party central committee does and who the candidates are when they see them on an election ballot. In addition, citizens who are not registered to the same party as the legislator being replaced have no voice at all in electing the body that is making the selection for them.

While these flaws might be acceptable for someone filling a vacancy on a short-term basis - and even that is a debatable proposition - they are not acceptable for selecting a replacement who could serve out the remaining three or even four years of a term, not when there is an opportunity for the voters to cast a ballot in the midterm elections. To deny voters this opportunity is inconsistent with the basic principles of electoral democracy. I urge you to give SB693 a favorable report.

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Legislative Vacancies: Amendment Being Drafted

It appears that the serious flaws in Maryland’s system for filling state legislative vacancies (see my December 13 post on the topic) will be discussed during the upcoming session of the General Assembly.

Senator Rich Madaleno has formally requested that legislation be drafted that would amend the Maryland constitution to democratize the process. Specifically, it would mandate a special election during the midterm to allow voters in a district to elect a replacement for the rest of the term.

The cost of a special election should not be high: Since the midterm for state legislators is always a presidential election year, every election board in the state is already putting on an election.

Even if the amendment is passed by the General Assembly in the upcoming session and approved by the voters in November, the first midterm where it could come into play would not be until 2012. So there is no rush: We’ll get the same result even if the amendment doesn’t pass until 2010.

That gives Madaleno and his allies three regular sessions to build support for this reform in Annapolis.

And, according to Madaleno, we may need that time.

That’s because many legislators may see this as “just a Montgomery County problem.” Given our county’s numerous unexpected legislative vacancies within the first year of the four-year term, we clearly see the need for reform. But other parts of the state have not seen such a high level of unexpected turnover so early in the term. Consequently, voters outside of Montgomery County are not demanding change. Madaleno is concerned that many legislators in Annapolis, seeing this as a Montgomery County problem, will have little incentive to change the status quo.

Madaleno sees a parallel with another electoral problem that applies statewide but which is generally categorized (and ignored) as a Montgomery County problem: the constitutional provision for adopting local charter amendments. Enacted in 1916, it establishes the minimum number of signatures needed to get a charter amendment on the ballot: At least 20% of the registered voters in the jurisdiction, but no more than 10,000 people. Back in 1916, Baltimore was the only chartered locality, had a much smaller population than today, and severely limited the right to vote, so the no more than 10,000 provision might have made sense.

But today, there are more chartered localities, and some have much larger voting populations — like Montgomery County. 10,000 signatures would represent a mere 2.5% of the county’s almost 400,000 registered voters.

That’s why Montgomery County frequently has a number of charter amendments on the ballot — amendments that do not necessarily have substantial popular support or probablity of passing.

According to Madaleno, efforts in Annapolis for a constitutional amendment to update the anachronistic 1916 provision have always run into opposition. Why? Because it’s seen as a Montgomery County problem. With its large population, Montgomery County is impacted by the no more than 10,000 people provision far more than most other parts of the state.

Similarly, the constitution’s legislative vacancy provisions may be seen as a Montgomery County problem by much of the General Assembly. And that means it could take time for the issue to get significant attention.

With that in mind, Madaleno sees the drafting of a constitutional amendment as an opportunity to start the discussion with his colleagues.

It will be interesting to see how recent events in District 35A will affect the discussion.

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Legislative Vacancies: Non-Constitutional Reform

There are several measures that can be taken to improve the current vacancy-appointment process while we work for a constitutional amendment. We can’t get a real election without an amendment; we’re stuck with the Central Committee. But the Constitution does not specify how the Central Committee should make its selection. Nothing stops it from adopting internal reforms. The Central Committee is perfectly free to establish a process to determine — and even to bind itself to — the will of the people of the district in question.

I invite comment from my fellow Marylanders on just what these reforms should be. Possibilties include:

• The Central Committee would be bound to select whichever candidate the district party structure selects. (Yes, this means that District 18 would never have enjoyed having Jane Lawton representing us in Annapolis. In 2005, the Central Committee overruled District 18’s recommendation that Sam Statland replace retiring Del. John Hurson.). The district-level decision could be made:
• by vote of the precinct chairs and vice-chairs; or
• in a district-wide caucus open to all party members in the district.

• The Central Committee would have a free vote, but Central Committee members:
• would be barred from voting for themselves; or
• would be barred from running altogether

• The Central Committee would have a free vote, but members living in the district whose legislator is being selected would have their votes weighed more heavily

I’m sure there are plenty of other ideas out there, too. The more people talk about this, the better ideas we’ll all come up with.

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Legislative Vacancies: Constitutional Reform

The deed is done, the people have spoken, and District 18 has its new delegate.

Well, the people of D-18 haven’t really spoken. It was the Central Committee who picked our delegate.

As I noted in an earlier post, only one year into the four-year term, almost 40% of Montgomery County residents now have as one of our General Assembly delegates someone who we had no role whatsoever in electing. The process for replacing legislators is seriously flawed for a number of reasons:

• The overwhelming majority of those making the selection do not live in the district whose delegate they are choosing;

• Citizens who are not registered to the same party as the legislator being replaced have no voice at all in electing the body that is making the selection for them;

• Even most rank-and-file members of the party in question don’t have a clue what a party central committee does and who the candidates are when we see them on the primary ballot; and
  


• Although we will be having elections throughout the state in 2008, voters with unelected legislators selected by outside party officials will be denied the opportunity to democratically elect someone to fill out the rest of the term.

This process is inconsistent with the basic principles of electoral democracy.

It is not acceptable.

It must change.

The Maryland Constitution sets out the provisions for filling a legislative vacancy, generally giving the party Central Committee the right to fill a vacancy (or at least to recommend a name to the governor). And the vacancy is filled for the rest of the term. So if we want the voice of the people to be heard through an election, we must amend the Maryland Constitution.

At Sunday’s D-18 candidate forum, several candidates, including Al Carr, expressed support for the right of the people of a district to vote on a permanent replacement legislator during the midterm elections (i.e., presidential election years). I will be strongly lobbying all of my representatives to support a constitutional amendment to make that possible. Based on his statements at the forum, I expect Del. Carr will not need any persuading on this matter.

One potential drawback: Party primaries in presidential election years occur months earlier than they do in General Assembly election years. For instance, while the 2006 primaries were in September, the 2008 primaries are in February. This would spell trouble for a temporarily-appointed legislator seeking election to his appointed position, since he would be in session in the weeks leading up to the primary, with no time to campaign and a legal prohibition against fundraising. It also would mean that a vacancy occurring as early February could not be filled by election in November because the vacancy occurred after the primaries.

For that reason, we could eliminate party primaries for special elections and instead have all interested candidates run regardless of party in one general election, with the possibility of a runoff in case no one gets a majority. Alternatively, we could have a fall primary just in the districts in question.

There may be other problems I have not thought of. As we approach the 2008 session of the General Assembly, now is the time to hash these problems out.

Unfortunately for the people of Districts 16, 18, and 39, even if a constitutional amendment passes during the upcoming legislative session and is approved by the voters in November 2008, that will be too late for us to get our 2008 midterm vote on a candidate. But amending the constitution will protect Marylanders in the future.

My next post will discuss reforms that Central Committees can adopt in the meantime to democratize the process.

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