Voters Organized for the Integrity of City Elections, et al. v. Baltimore City Elections
Board, et al.
No. 60, September Term 2016


Election Law – Action by Registered Voter with Respect to Act or Omission in
Violation of State Election Law – Mootness. Appeal of a circuit court’s denial of motion
for temporary restraining order that would have required election officials to create a
special system of “inmate voting” in Baltimore City for the 2016 general election was moot
when any court order granting such relief on the day before the election would have been
without practical effect. Maryland Code, Election Law Article, §12-201 et seq.
Circuit Court for Baltimore City
Case No. 24-C-16-005773
Argument: November 7, 2016

                                         IN THE COURT OF APPEALS
                                              OF MARYLAND

                                                   No. 60
                                             September Term, 2016


                                    VOTERS ORGANIZED FOR THE INTEGRITY OF
                                            CITY ELECTIONS, ET AL.

                                                      V.

                                    BALTIMORE CITY ELECTIONS BOARD, ET AL.

                                   _____________________________________

                                              Barbera, C.J.
                                              Greene
                                              Adkins
                                              McDonald
                                              Watts
                                              Hotten
                                              Wilner, Alan M. (Senior Judge,
                                              Specially Assigned),

                                                           JJ.

                                   ______________________________________

                                            Opinion by McDonald, J.
                                               Watts, J., concurs.
                                   ______________________________________

                                              Filed: January 23, 2017
       There is a medieval legend concerning a Danish king named Canute whose domain

included the British Isles and Scandinavia. To his contemporaries, his authority must have

seemed boundless. Canute was less impressed. To demonstrate that his power was quite

finite in the grand scheme of things, Canute invited his courtiers to the seashore where he

commanded the incoming tide to halt – an order that was, as Canute intended to

demonstrate, without effect.1

       An appellate court may sometimes find itself in a situation when, due to time or

other circumstances beyond its control, it is asked to issue an order that, like King Canute’s

command to the sea, would be without practical effect. The appeal is said to be moot and,

typically, the court dismisses it. Such is the case with this appeal.

       Appellants, Voters Organized for the Integrity of City Elections (“VOICE”) and its

founder Hassan Giordano, initiated this action just weeks before 2016 general election in

the apparent hope of compelling Appellees, the State Board of Elections (“State Board”)

and the Baltimore City Board of Elections (“City Board” or “local board”), to establish a

special system for “inmate voting” in Baltimore City for the 2016 general election. Their

complaint sought relief on behalf of individuals who were detained pretrial or were

incarcerated as a result of a misdemeanor conviction, who were eligible to vote, and who



       1
         See Henry of Huntingdon, Historia Anglorum (1154). In some later versions of
the story, King Canute is portrayed as himself believing that his powers were boundless
and vainly commanding the tide to recede. See, e.g., K. Evans, Canute and the Waves: A
Misunderstood Story at <https://kellyaevans.com/nqhistory/waves-2/>. The story was thus
transformed from one of a leader giving a lesson in humility to one of a leader needing a
lesson in humility.
wished either to register to vote or, if already registered, to cast a ballot in the 2016 general

election.

       While VOICE and Mr. Giordano may have had the laudable purpose of ensuring

that those with the right to vote were able to do so, the timing and basis on which they took

legal action raised a plethora of issues. The Circuit Court for Baltimore City denied their

request for a broadly worded temporary restraining order (“TRO”) on the ground that they

had filed their complaint too late. Alternatively, the court concluded that, even if it

overlooked the procedural default, they had failed to show, by the “clear and convincing

evidence” standard in the statute, any act or omission by the election boards that threatened

to change the outcome of the election.

       The expedited appeal of the Circuit Court’s decision was argued before this Court

on November 7, 2016 – the day before the 2016 general election. We dismissed the appeal

as moot that same day and indicated that the case would be remanded to the Circuit Court

to consider any further request for a declaratory judgment in accordance with an opinion

to be issued by this Court. This is that opinion.


                                              I
                                         Background

       The Complaint – Parties and Jurisdiction

       On October 28, 2016, less than two weeks before the 2016 general election, VOICE

and Mr. Giordano brought this action against the two election boards in the Circuit Court

for Baltimore City. In its complaint VOICE stated that it is a “watchdog organization” that

is comprised of Maryland voters concerned about the integrity of elections in Baltimore

                                               2
City and that operates “exclusively” in the City. Mr. Giordano was alleged to be a City

voter and the founder of VOICE. The complaint did not identify any other members of

VOICE or name any other individual plaintiffs.

       The complaint sought injunctive and declaratory relief with respect to all City and

State detention centers and correctional facilities within the jurisdiction of the Circuit

Court. The complaint alleged that the Circuit Court had jurisdiction of the action under the

State Election Law – in particular, Maryland Code, Election Law Article (“EL”), §12-201

et seq. That provision is limited in scope and requires prompt action by one who seeks to

invoke it. In particular, under that provision, a registered voter may bring an action with

respect to any act or omission “relating to an election”: (1) that is inconsistent with the

State Election Law and (2) that may affect the outcome of the election. EL §12-202(a).

Such an action must be brought either within 10 days after the alleged act or omission

became known to the plaintiff, or within a specified number of days after the election

(depending on whether it is a primary or general election) – whichever of the two dates is

earlier. EL §12-202(b). The complaint also invoked the Maryland Uniform Declaratory

Judgments Act, Maryland Code, Courts & Judicial Proceedings Article (“CJ”), §3-401 et

seq.

       The Complaint – Factual Allegations

       The complaint appeared to relate the time of its filing to legislation enacted during

the 2016 session of the General Assembly – specifically, Chapter 6, Laws of Maryland

2016 (“2016 legislation”). The 2016 legislation amended the statute that defines the

qualifications for voting (EL §3-102) to limit the disqualification from voting for convicted

                                             3
felons to the period of the individual’s incarceration. Prior to that amendment, a convicted

felon would have also been disqualified from voting during any period of probation or

parole. The amendment was enacted by the General Assembly over the Governor’s veto

and became effective March 20, 2016.

       The complaint then focused on two categories of individuals in custody who may

be eligible to vote if they otherwise satisfy the general criteria applicable to all Maryland

citizens2: (1) pretrial detainees who have not been convicted; and (2) individuals in custody

only because they had been convicted of a misdemeanor offense.3 (As will be seen below,

however, the 2016 legislation had no effect on the voting rights of either of these categories

of potential voters.) The complaint alleged that there were “hundreds” of individuals in

State custody in those two categories who were eligible to vote.

       The complaint alleged that “the lack of a State strategy governing inmate voter

registration and the casting of ballots in the upcoming election infringes upon the

fundamental right to vote” of those individuals. More particularly, the complaint faulted


       2
          In order to become registered to vote, an individual must be a United States citizen,
at least 16 years old, and a resident of Maryland at the time of registration. EL §3-102(a).
An individual is disqualified from becoming registered to vote if the individual (1) is a
convicted felon currently serving a sentence of imprisonment for that conviction, (2) is
under guardianship for a mental disability and there is a court finding that the individual
cannot communicate a desire to participate in voting, or (3) has been convicted of buying
or selling votes. EL §3-102(b).
       3
         The complaint also alluded briefly to a third category of imprisoned individuals
who may be eligible to vote: convicted felons who had completed their term of
incarceration, but who were detained awaiting a hearing on an alleged parole or probation
violation. However, unlike the other two categories of inmates, the plaintiffs did not make
further mention of this third category in the complaint and other filings.

                                              4
the State, the counties, and Baltimore City for lacking a policy or plan to distribute ballots

to pretrial detainees and incarcerated misdemeanants during the early voting period

(October 27 through November 3, 2016) or on election day (November 8, 2016) and for

not providing information about voting, voter eligibility, and voter registration during the

intake process at detention centers and correctional facilities. The complaint alleged that,

as a result, there would be “massive disenfranchisement” that threatened to affect the

outcome of the 2016 general election. The complaint did not allege any details as to how

the outcome of the election was likely to be affected.

       The Complaint – Causes of Action and Relief Sought

       Based on those factual allegations, the complaint alleged various causes of action

and violations of the Election Law in six counts. It appears that some of the counts pertain

to only one of the two defendant election boards, although the complaint is not always clear

in that regard.

       Count I, apparently directed at both the City Board and the State Board, alleged a

violation of the right to register to vote, as provided in EL §3-102, with respect to pretrial

detainees and individuals serving sentences for misdemeanor convictions.

       Count II, apparently directed at the City Board alone, asserted that the local board

had failed to carry out the powers and duties assigned to it by EL §2-202,4 by not


       4
         EL §2-202(b) lists various powers and duties of the local board of elections in each
county and Baltimore City. Count II of the complaint specifically recited the
responsibilities of a local board of elections for overseeing the conduct of elections within
its jurisdiction, providing supplies and equipment for voter registration and voting, and
establishing precincts and polling places. EL §2-202(b)(1), (3), (6).

                                              5
establishing a plan to ensure the opportunity to vote by pretrial detainees and individuals

serving sentences for misdemeanor convictions.

       Count III, apparently directed at the State Board alone, alleged that the State Board

had failed to carry out the powers and duties assigned to it by EL §2-1025 by not

establishing a Statewide plan to ensure the opportunity to vote by pretrial detainees and

individuals serving sentences for misdemeanor convictions. That count also quoted State

Board regulations that implemented same day voter registration at early voting centers.

See COMAR 33.19.04.01 et seq.

       Count IV, apparently directed at both election boards, alleged a violation of the

statutes governing applications for voter registration. See EL §3-201 et seq. The complaint

asserted that these violations arose from a failure of the two election boards to allocate

resources to provide volunteers to assist pretrial detainees and individuals serving

misdemeanor sentences with registration and voting.

       Count V requested injunctive relief, presumably against both election boards,

including a TRO, a preliminary injunction, and a permanent injunction, on the grounds that

the plaintiffs (VOICE and Mr. Giordano) were threatened with irreparable harm, that the

State would be “only slightly inconvenienced” by an injunction, and that the plaintiffs were




       5
         EL §2-102(b) lists various powers and duties of the State Board. Count III of the
complaint specifically recited the State Board’s responsibilities to manage and supervise
elections in the State and ensure compliance with election laws, to support and evaluate
the activities of local election boards, and to maximize the use of technology in elections.
EL §2-102(b)(1), (2), (7).

                                             6
likely to succeed on the merits of their claims. Count V did not itself specify the nature of

the requested injunctive relief.

       Count VI requested declaratory relief, again presumably against both election

boards, although, like Count V, it was not specific as to the declaration of legal rights that

it sought.

       The Complaint – Relief Sought

       Finally, in a concluding prayer for relief, the complaint became specific as to what

it asked the court to do. As will be evident, much of the relief sought would extend beyond

Baltimore City throughout the State and some would appear to extend beyond the 2016

general election. In particular, the complaint asked the Circuit Court to order:

             a. That all pre-trial detainees and individuals serving a court-ordered
                period of imprisonment for misdemeanor offenses who are eligible
                to vote, shall receive an official ballot and the opportunity to cast it
                on November 8, 2016 for the general election, or during early voting
                (October 27, 2016 – November 3, 2016);

             b. That voting and election information including the opportunity to
                register shall be provided within 8 hours upon booking into each
                facility throughout the State of Maryland within the jurisdiction of
                this court;

             c. That all pre-trial detainees and individuals serving a court-ordered
                sentence of imprisonment for misdemeanor offenses at a facility
                owned by the State of Maryland shall be provided with accurate
                education on their right to vote and the process for exercising that
                right;

             d. That all pre-trial detainees and individuals serving a court-ordered
                period of imprisonment for misdemeanor offenses, who are duly
                registered to vote, shall be provided with a copy of the official
                general election ballot to review ballot questions, candidates and
                proposed funding questions relevant to their jurisdiction;


                                                 7
            e. That the State and local board cover the cost of providing ballots to
               all eligible persons in a timely fashion that are clear and legible;

            f. That the State and local board account for and maintain control over
               the ballots from the beginning of production to post-election storage
               and disposition in accordance with [EL] §9-216;

            g. That each ballot cast by all eligible persons in their institutions be
               counted;

            h. That the State and local boards provide a polling place in each
               facility to allow an efficient voting process and reduce the
               possibility of missing ballots, irregularities or allegations of
               disenfranchisement.

       Motion for TRO and Opposition

       On October 31, 2016, several days after filing the complaint, VOICE and Mr.

Giordano filed a motion for a TRO. That motion reiterated the allegations of the complaint

and recited generally the powers and duties of the two election boards under State law. In

their motion, VOICE and Mr. Giordano argued that the two election boards had failed to

“comply with and implement” EL §3-102 – the statute that sets forth the qualifications an

individual must meet in order to be eligible to vote.6

       In arguing that the two election boards had violated EL §3-102, the motion also

inaccurately stated that the 2016 legislation that amended that statute had “restored” the

right to vote for pretrial detainees and individuals serving sentences for misdemeanors. 7


       6
           See footnote 2 above.
       7
          In fact, the legislation did not concern the voting rights of pretrial detainees or
individuals serving misdemeanor sentences – such individuals were eligible to register to
vote both before and after the enactment of the 2016 legislation. The effect of that
legislation was to extend voting rights to convicted felons who are on probation or parole
and are not in custody – i.e., not inmates. Whatever obligations the election boards may
                                               8
The motion asserted that the State had not “place[d] any mandate upon jailers to implement

. . . ‘inmate voting’” after passage of the 2016 legislation. In the motion VOICE and Mr.

Giordano argued that their cause of action did not accrue until October 19, 2016 – the day

after the deadline for voter registration for the 2016 general election.

       In the motion, VOICE and Mr. Giordano argued that the alleged failures of the two

election boards “may change the outcome of the general election” and that VOICE and its

members would suffer immediate, substantial, and irreparable harm. The motion appeared

to relate these allegations to the outcome of the presidential contest, stating that “[a]t least

three of nine Supreme Court justice positions are at stake, and so too are over 300+ federal

judicial appointments over the next eight years.” Finally, they argued that application of

the four-factor test for issuance of a TRO – likelihood of plaintiff’s success on the merits,

balance of harms to the parties, potential for irreparable injury to the plaintiff, and public

interest8 – favored granting the TRO.

       An affidavit by Mr. Giordano submitted in support of the motion reiterated many of

the allegations of the complaint and estimated that there were currently 1,100 registered

voters in detention and approximately another 700 individuals in detention who were

eligible to register to vote. He did not indicate how he calculated those figures. In the

affidavit, Mr. Giordano stated his belief that the Governor had partisan motivations for




have with respect to “inmate voting,” those obligations cannot be traced to the 2016
legislation.
       8
           See Fritszche v. State Board of Elections, 397 Md. 331, 339-40 (2007).

                                               9
vetoing the 2016 legislation and for not implementing a “plan for ‘inmate voting.’” A draft

order submitted with the motion recited verbatim the same relief sought in the complaint’s

prayer for relief.

       In response, the two election boards questioned the standing of VOICE and Mr.

Giordano to bring the action. In particular, they noted that Mr. Giordano did not allege

that he was a detainee who was unable to vote and that VOICE was not a registered voter.

The election boards also argued that the complaint was barred by laches and failed to state

a claim under EL §12-202.

       In responding to the merits of the complaint’s allegations, the election boards argued

that VOICE and Mr. Giordano had not made the requisite showing under the four-factor

test for a TRO – in particular, that there was little likelihood the plaintiffs would succeed

on the merits. The election boards noted that the State Election Law did not treat pretrial

detainees and incarcerated misdemeanants differently from other individuals who are

eligible to vote and who are unable to physically visit an early voting center during the

early voting period or to visit their polling place on election day. Such individuals may

request an absentee ballot and may designate an agent, if necessary, to obtain the

application and ballot on their behalf. The election boards asserted that VOICE and Mr.

Giordano had not identified any act or omission of the election boards inconsistent with

the State Election Law, but were in effect protesting the absence of a law requiring special




                                             10
voter outreach services for inmates. The election boards noted that the deadlines for a

registered voter to obtain an absentee ballot had not yet expired.9

         The two election boards argued that the voting rights of inmates who were eligible

to vote had not been impeded by the authorities, as volunteers had collected voter

registration applications and applications for absentee ballots from detainees and delivered

them to the City Board. The election boards submitted affidavits from two employees of

the Department of Public Safety and Correctional Services and the Baltimore City

Detention Center, one of whom had been assisting detainees with voting for 16 years.

         Circuit Court Denial of TRO

         The Circuit Court held a hearing on November 1, 2016 – the day after the motion

for the TRO was filed – and denied the motion. We have not been provided with a

transcript of that hearing other than the oral ruling of the Circuit Court. In that ruling, the

Circuit Court first noted that VOICE was not a registered voter and therefore did not have

standing under EL §12-202, the primary statute under which the complaint was brought.

However, the court concluded that Mr. Giordano did have statutory standing as a registered

voter.

         The Circuit Court held that Mr. Giordano’s complaint was barred under the principle

of laches.     In particular, the court noted that EL §3-102 – the statute concerning



         9
         The deadline for applying for an absentee ballot for the 2016 general election
depended on whether the applicant asked to receive the ballot by mail or fax (November
1), downloaded it from the election board’s website (November 4), or picked it up (or had
an agent pick it up) at an election board office (November 8).

                                              11
qualifications for voter registration – was “decades old” and that the 2016 legislation that

was cited in the complaint as the basis for the relief sought was a “red herring” as it was

irrelevant to the categories of individuals on whose behalf Mr. Giordano sought relief from

the court.

       Alternatively, the Circuit Court held that the plaintiffs had failed to show, by clear

and convincing evidence, that an “act or omission relating to an election” threatened to

change the outcome of an election. The court noted that the only evidence submitted by

the plaintiffs were “bald unsubstantiated assertions” in the affidavit of Mr. Giordano. The

Court entered a written order consistent with its oral ruling denying the motion for a TRO.

       VOICE and Mr. Giordano advise that they sought to have a fuller evidentiary

hearing before the Circuit Court later that week, but were unsuccessful in doing so and

instead pursued the current appeal.

       Appeal of Denial of TRO

       VOICE and Mr. Giordano immediately appealed the denial of the TRO directly to

this Court, as permitted by EL §12-203(a)(3),10 on Wednesday, November 2, 2016. We

ordered expedited briefing and heard argument on Monday, November 7, 2016 – the day

before the 2016 general election.




       10
         That provision states that any appeal is to be “taken directly to the Court of
Appeals within 5 days of the decision of the circuit court.” EL §12-203(a)(3). The Court
of Appeals is to give priority to the appeal and decide it “as expeditiously as the
circumstances require.” EL §12-203(b).

                                             12
         In their appeal, VOICE and Mr. Giordano argued that (1) the Circuit Court should

have granted the requested TRO and (2) the Circuit Court should have scheduled an

evidentiary hearing on the merits of their request for a preliminary injunction prior to the

election.

         In the papers filed with us, VOICE and Mr. Giordano submitted, for the first time,

an affidavit of Terrance Darnell Fields dated November 4, 2016, in which Mr. Fields stated

that he was a registered voter affiliated with the Republican Party, a member of VOICE,

and a current pretrial detainee who wished to vote in the 2016 general election. However,

Mr. Fields was apparently registered to vote in Baltimore County, not Baltimore City – and

therefore not a voter normally served by the City Board. At oral argument, counsel for

VOICE and Mr. Giordano conceded that Mr. Fields’ affidavit had not been presented to

the Circuit Court, but explained that they would have presented testimony like the affidavit

if they had been successful in arranging an additional evidentiary hearing in the Circuit

Court.

         In their brief, VOICE and Mr. Giordano argued that they both have standing, that

they were not late in filing their complaint, and that they satisfied the four-factor test for

obtaining a TRO. In contesting the Circuit Court’s rulings on standing and laches, VOICE

and Mr. Giordano modified some of their positions in the Circuit Court. On appeal, they

relied on the alleged membership of Mr. Fields in VOICE to support “associational

standing” of the organization. Although they continued to refer to the effect of the 2016

legislation in expanding voting rights, they appeared to have dropped any contention that

the 2016 legislation affected the voting rights either of pretrial detainees or of incarcerated

                                              13
misdemeanants – or has any bearing on the outcome of this case. With respect to their

contention that the alleged unlawful acts or omissions of the election boards would affect

the outcome of the 2016 general election, they shifted their focus from the presidential

election to the election for the Baltimore City Council, noting that the primary elections

for two seats on the Council had been decided by small margins.

       In response, the election boards reiterated the arguments made before the Circuit

Court. They also provided a detailed summary of the statutes governing voter registration

and absentee voting and noted that VOICE and Mr. Giordano had not alleged any violation

of any specific provision of those statutes.

                                               II

                                          Discussion

A.     The Standard for a Temporary Restraining Order

       A TRO may be granted “only if it clearly appears from specific facts shown by

affidavit or other statement under oath that immediate, substantial, and irreparable harm

will result to the person seeking the order …” Maryland Rule 15-504(a). As noted above,

to determine whether that standard is met, a court is to consider four factors: (1) likelihood

of plaintiff’s success on the merits, (2) balance of the harms to the parties, (3) potential for

irreparable harm to the plaintiff, and (4) the public interest. Fritszche v. State Board of

Elections, 397 Md. 331, 339-40 (2007). An appellate court reviews a circuit court’s

decision to grant or deny injunctive relief, such as a TRO, under an abuse of discretion

standard. Colandrea v. Wilde Lake Community Ass’n, 361 Md. 371, 394 (2000). To the



                                               14
extent that the trial court’s decision turns on a question of law, however, we review that

decision without deference. Ehrlich v. Perez, 394 Md. 691, 708 (2006).

       At the outset, there are a number of issues that must be considered to determine

whether VOICE and Mr. Giordano can demonstrate a likelihood of success on the merits:

whether either plaintiff has standing to obtain the relief sought in the complaint, whether

the appropriate defendants have been named and served,11 whether the 2016 legislation on

which much of the plaintiffs’ argument was based affects the particular potential voters on

whose behalf plaintiffs seek relief, whether plaintiffs waited too long to file this action and

are barred by laches, whether they have alleged any act or omission by the two elections

boards contrary to the State Election Law and, assuming there is an act or omission,

whether it would have changed the outcome of the presidential election (or even an election

for a Baltimore City Council seat).

       But we need not resolve all of those issues. We dismissed this appeal for the simple

reason that, even if we were to agree with VOICE and Mr. Giordano and conclude that

they were entitled to a TRO with respect to the 2016 general election, there was no way

that such an order could have been implemented as a practical matter.

B.     Mootness

       An appeal is moot if, as a result of time or circumstances, “any judgment or decree

the court might enter would be without effect.” Hayman v. St. Martin’s Evangelical


       11
         The relief sought in the complaint would require action to be taken by officials in
charge of correctional facilities and detention centers. Only the two election boards are
named as defendants in the complaint.

                                              15
Lutheran Church, 227 Md. 338, 343 (1962). Although this Court may have the legal

authority to express an opinion about the issues in a moot case, the appeal is typically

dismissed. Mercy Hospital, Inc. v. Jackson, 306 Md. 556, 562 (1986).

       An example is Lloyd v. Board of Supervisors of Elections, 206 Md. 36 (1954). In

that case, an individual sought to be listed as a candidate for an Orphans’ Court vacancy

on both the Democratic and Republican primary ballots. When the local elections board

declined to do so – based on an Attorney General opinion that concluded that a candidate

for Orphans’ Court could not run in both primaries – he brought a mandamus action in

circuit court. The circuit court upheld the election board. The candidate appealed, but did

not press for an expedited hearing, and the primary election took place before the appeal

was heard. This Court ultimately dismissed the appeal as moot. The Court declined to

exercise whatever authority it might have to address the legal issue raised by the candidate,

noting that the issue was of statutory rather than of constitutional dimension, that the

Legislature had the option of amending the statute before the next election, and that, if the

Legislature chose not to do so, a similar action could be prosecuted in a more timely manner

before the next election. 206 Md. at 43-44.

       In this case, it is evident that, once the complaint was filed, both sides and the Circuit

Court cooperated in advancing this litigation expeditiously. The Circuit Court ruled

immediately after holding a hearing. The parties then promptly briefed this appeal and oral

argument was scheduled the day after the briefs were filed. But, by the time the appeal

was argued to us, the early voting period was over and the general election was just hours

away. Even if this Court, or the Circuit Court on remand from the appeal, were to order

                                              16
State officials to create a system of “inmate voting” for the 2016 general election, it would

have been impossible to effectively accomplish such a task in the few hours remaining

before the polls opened on election day.12 Given that election day is the busiest day of any

year for election officials, such an order would not only have been ineffective, but counter-

productive in ensuring an orderly election. In our view, the request for a TRO related to

the November 8, 2016 general election was moot by the time it reached us on November

7.

       VOICE and Mr. Giordano appear to attribute the late filing of their law suit to the

deadline for voter registration. They assert that they did not have a cause of action under

EL §12-202 until the ordinary statutory deadline for voter registration (October 18, 2016)

had passed and an eligible inmate would no longer be able to register to vote.13 It is difficult




       12
          At oral argument, VOICE and Mr. Giordano adopted a fallback position that a
“package of absentee ballots” could simply be distributed to inmates on election day in lieu
of more extensive relief. However, the particular absentee ballot appropriate for a
particular voter depends on the voter’s residence, which determines the local offices (e.g.,
City Council member) for which the voter may cast a ballot. We were informed that there
were nearly 30 different versions of the ballot – known as “ballot styles” − for the 2016
election in Baltimore City alone, and numerous permutations in each of the other
jurisdictions, such as Baltimore County where Mr. Fields was eligible to vote. One who
wishes to vote by absentee ballot must submit an application for the ballot, in part so that
election authorities can match the voter to the appropriate absentee ballot. Matching a
prospective inmate voter to the appropriate absentee ballot inside the detention centers on
election day would have required a significant diversion of personnel and resources at the
very time that election officials were attempting to timely open and appropriately staff
every polling place in the State – a challenging prospect in the best of times.
       13
          Effective January 1, 2016, a person could also appear in person at an early voting
center in the county of residence to register to vote during the early voting period (October
27- November 3). EL §3-305. This option would not, of course, be available to an inmate.

                                              17
to discern the logic of this argument under which they waited until election officials,

following the State Election Law, would no longer register inmates to ask a court to order

those officials to register potential voters outside the period specified in the law – under a

statute designed to correct actions of officials contrary to the State Election Law. In any

event, VOICE and Mr. Giordano do not explain why the deadline for voter registration

would affect a cause of action on behalf of inmates who were already registered to vote,

such as Mr. Fields.14 Nor do they explain why, assuming VOICE and Mr. Giordano have

standing, they were precluded from seeking a declaratory judgment before that date.

C.     Remand

       This is the end of this appeal. It may or may not be the end of this case. At this

juncture, all that has been decided is the plaintiffs’ request for a TRO with respect to the

2016 general election. Any other relief sought with respect to the 2016 general election is,

of course, also moot. As indicated earlier, the complaint appears to request more general

declaratory and injunctive relief. But no trial has been held and any declaratory judgment

would be premature at this point.

       Assuming Mr. Giordano or VOICE can demonstrate the requisite standing for

seeking declaratory relief, in theory they might pursue what remains of their complaint on




       14
          In their appeal brief, they suggested that a cause of action for Mr. Fields did not
accrue until October 27, 2016, the first day of the early voting period. The rationale for
that assertion – i.e., what act or omission inconsistent with the State Election occurred on
that date – is not clear from the brief.

                                             18
remand as it relates to voter registration and voting in a future election. We offer a few

thoughts on standing and declaratory relief for guidance of the Circuit Court.

       1.       Some Considerations on Standing

       To the extent that the complaint is based on EL §12-201 et seq., Mr. Giordano has

statutory standing as a registered voter. See EL §12-201(b); Suessmann v. Lamone, 383

Md. 697, 712-13 (2004). But, as the Circuit Court noted, VOICE is not, and cannot be, a

registered voter and therefore has no standing under that statute. A cause of action under

that statute rests on an allegation that an act or omission in violation of the State Election

Law may affect the outcome of an election – an assertion somewhat more difficult to make

at this juncture with the end of the 2016 general election and the next election more than a

year in the future.

       To the extent that the complaint is based on the declaratory judgment statute, CJ §3-

401 et seq., a circuit court may grant such relief “if it will serve to terminate the uncertainty

or controversy giving rise to the proceeding,” and if:

                (1)     An actual controversy exists between contending parties;

                (2)   Antagonistic claims are present between the parties
            involved which indicate imminent and inevitable litigation; or

                 (3)    A party asserts a legal relation, status, right, or privilege and
            this is challenged or denied by an adversary party, who also has or
            asserts a concrete interest in it.

CJ §3-409(a). See also Falls Road Community Ass’n v. Baltimore County, 437 Md. 115,

145-46 (2014).




                                                 19
       To have standing to bring a declaratory judgment action, VOICE and Mr. Giordano

must have standing under the Maryland common law. 15 This Court recently summarized

that requirement:     Absent special statutory standing,16 “a person – individual or

organization – has no standing to bring an action in court unless the person has suffered

some kind of special damage.” Fraternal Order of Police v. Montgomery County, 446 Md.

490, 506 (2016). Thus, common law standing “depends on whether one is aggrieved,

which means whether a plaintiff has an interest such that [the plaintiff] is personally and

specifically affected in a way different from … the public generally.” Kendall v. Howard

County, 431 Md. 590, 603 (2013) (quotation marks and citations omitted).

       VOICE has asserted that it has “associational standing” on behalf of its members

under federal case law that recognizes such standing if: (1) an organization’s members

would otherwise have standing to sue as individuals; (2) the interests at stake are germane

to the group’s purpose; and (3) neither the claim made nor the relief requested requires the

participation of individual members in the suit. See Taubman Realty Group L.P. v. Mineta,

320 F.3d 475, 480 (4th Cir. 2003). VOICE did not formally establish the first element of

this formula in the Circuit Court – i.e., whether its members would have standing




       15
           The declaratory judgment statute also explicitly confers standing on certain
parties in certain types of cases. See, e.g., CJ §3-408 (specifying who may seek declaration
of rights relating to a trust or the estate of a decedent). No such provision in the declaratory
judgment statute, however, applies to this case.
       16
         See Accokeek, Mattawoman, Piscataway Creeks Community Council, Inc. v.
Public Service Commission, ___ Md. ___, 2016 WL 7324009 (December 16, 2016), for a
case involving a statute broadly conferring standing on potential plaintiffs.

                                              20
individually – although it might achieve that end with the affidavit of Mr. Fields or other

inmate members. In any event, this Court has not yet recognized such derivative standing.

“We have long held the view that, under Maryland common law principles, for an

organization to have standing to bring a judicial action, it must ordinarily have a property

interest of its own – separate and distinct from that of its individual members – and that …

an organization has no standing in court unless [it] has also suffered some kind of special

damage from such wrong differing in character and kind from that suffered by the general

public…. If it were otherwise – if any person or group disenchanted with some public

policy but not adversely affected by it in some special way were free to seek a judicial

declaration that the policy is invalid – the courts, rather than the legislative branch, would

end up setting public policy, and that is not the proper role of the Judiciary.” Evans v.

State, 396 Md. 256, 328-29 (2006) (quotation marks and citations omitted; emphasis in

original).

       Thus, VOICE does not have standing to seek a declaratory judgment concerning its

interpretation of the obligations of the election boards under the Election Law Article,

simply because its members are interested in that interpretation or even because its

members may themselves be specially affected by that interpretation. The organization

itself must be specially affected by the interpretation. See Fraternal Order of Police v.

Montgomery County, 446 Md. at 506-07 (police union had standing to challenge county’s

use of public funds to defeat referendum concerning statute on collective bargaining

because statute affected the scope of bargaining by the union on behalf of its members).



                                             21
       Neither Mr. Giordano nor VOICE alleged any injury to themselves – i.e., nothing

in the complaint indicates that Mr. Giordano was a pretrial detainee or incarcerated

misdemeanant, much less that he was an inmate who had been denied an opportunity to

register to vote or to obtain an absentee ballot. The belated submission of the affidavit of

Mr. Fields was apparently an effort to remedy this deficiency. It remains to be seen whether

someone with standing can be substituted as a plaintiff.

       2.       Some Considerations for Any Declaratory Judgment

       If Mr. Giordano or VOICE establishes standing, they may pursue the request for

declaratory relief. At the conclusion of that trial, the Circuit Court would be obligated to

issue a declaratory judgment. As this Court has noted on several occasions, even if the

Circuit Court were to reject the proposition advanced by VOICE and Mr. Giordano, it

would still be required to issue a declaratory judgment, assuming at least one plaintiff has

standing to maintain the action.17 In the event this case proceeds further in the Circuit

Court, we offer a few considerations for the Circuit Court for any declaratory judgment

that might be issued in the future based on the current law.


       17
            That obligation has been succinctly stated as follows:

            … when a declaratory judgment action is brought and the controversy
            is appropriate for resolution by declaratory judgment, the court must
            enter a declaratory judgment, defining the rights and obligations of the
            parties or the status of the thing in controversy, and that judgment must
            be in writing and in a separate document. That requirement is
            applicable even if the action is not decided in favor of the party seeking
            the declaratory judgment.

Lovell Land, Inc. v. State Highway Admin, 408 Md. 242, 256 (quotation marks and citations
omitted).
                                               22
      Should the Circuit Court be called upon to issue a declaratory judgment on remand,

current law and the record to date supports the following propositions:

      • Pretrial detainees and individuals who are incarcerated as a result only
        of a misdemeanor conviction and who are otherwise eligible to vote
        under EL §3-102 remain eligible to vote, even though they are in
        custody.

      • The 2016 legislation did not affect the eligibility to vote of pretrial
        detainees and of individuals incarcerated as a result only of a
        misdemeanor conviction.

      • Pretrial detainees and individuals incarcerated as a result only of a
        misdemeanor conviction who are eligible to register to vote may
        register to vote by mail, online, or with the assistance of a volunteer.
        EL §3-201(a)(3), (6), (7).

      • Pretrial detainees and individuals incarcerated as a result only of a
        misdemeanor conviction who are registered to vote retain the right to
        vote by absentee ballot and to have the assistance of an agent pursuant
        to EL §9-307 in obtaining the appropriate application and absentee
        ballot for that purpose.

      • The 2016 legislation imposes no special mandate on the State or local
        election boards with respect to individuals who happen to be in custody
        as compared to other individuals who may be incapacitated or unable
        to visit an early voting site or their designated polling place on election
        day – e.g., as a result of health issues, employment, family or school
        circumstances.

      VOICE and Mr. Giordano assert that “[t]he denial of pretrial detainees’ and

incarcerated misdemeanants’ right to register and vote is inconsistent with the Election

Law article.” Taken in isolation, that statement is undoubtedly true. But it begs the

question that their complaint actually raises – whether the general powers and duties

conferred on the election boards by the State Election Law require the election boards to

create a special system for “inmate voting” beyond what is available for any voter unable

                                            23
to appear at the voter’s polling place on election day and whether the failure to do so is

equivalent to a denial of the right to register and vote.

                                              III

                                         Conclusion

       For the reasons explained in this opinion, we dismissed this appeal as moot. We

offer the guidance set forth above for the benefit of the Circuit Court should it be called

upon to issue a declaratory judgment following remand.


                                                    COSTS TO BE PAID BY APPELLANTS.




                                              24
Circuit Court for Baltimore City
Case No. 24-C-16-005773

Argued: November 7, 2016
                                         IN THE COURT OF APPEALS

                                              OF MARYLAND

                                                   No. 60

                                             September Term, 2016
                                   ______________________________________

                                       VOTERS ORGANIZED FOR THE
                                   INTEGRITY OF CITY ELECTIONS, ET AL.

                                                      v.

                                    BALTIMORE CITY ELECTIONS BOARD,
                                                   ET AL.
                                   ______________________________________

                                             Barbera, C.J.
                                             Greene
                                             Adkins
                                             McDonald
                                             Watts
                                             Hotten
                                             Wilner, Alan M. (Senior Judge,
                                             Specially Assigned)

                                                   JJ.
                                   ______________________________________

                                         Concurring Opinion by Watts, J.
                                   ______________________________________

                                             Filed: January 23, 2017
       Respectfully, I concur. I would remand the case to the Circuit Court for Baltimore

City because I agree with the Majority that it remains to be seen whether Terrance Darnell

Fields can be substituted as a plaintiff with standing, or whether anyone else has standing

with respect to the complaint for declaratory judgment. See Maj. Slip Op. at 22. I would,

however, have dismissed the appeal of the denial of the temporary restraining order based

on the lack of standing of Voters Organized for the Integrity of City Elections (“VOICE”),

Appellant, as to the election claims, and because, although Hassan Giordano, Appellant,

may have had standing as a registered voter under Md. Code Ann., Election Law § 12-202,

the election claims were barred by the doctrine of laches.

       As to the election claims, Appellants filed the action on October 28, 2016—eleven

days before the 2016 general election—when the claims could have been filed as early as

the April 2016 primary election. “The doctrine of laches, which is both an affirmative

defense and an equitable defense, applies where there is an unreasonable delay in the

assertion of one party’s rights and that delay results in prejudice to the opposing party.”

Jones v. State, 445 Md. 324, 339, 126 A.3d 1162, 1171 (2015) (citation, brackets, and

internal quotation marks omitted). Moreover, the doctrine of laches has been invoked to

bar election claims “where the delay in seeking judicial relief was measured in days[.]”

Baker v. O’Malley, 217 Md. App. 288, 296, 92 A.3d 588, 593, cert. denied, 440 Md. 115,

99 A.3d 779 (2014). I would have found both aspects of the doctrine of laches to be

satisfied. I would not have dismissed the appeal on the ground that it was moot, i.e., that

there was not enough time to take action, and that no order giving Appellants the relief that

they sought could have been implemented.
       In other words, the case should be remanded to the circuit court for action consistent

with Part II.C of the majority opinion because VOICE’s lack of standing and the doctrine

of laches barring the election claims precluded this Court from considering the appeal. In

my view, the potential timing of an order to be issued by this Court the day before the 2016

general election did not render the appeal moot.

       For the above reasons, respectfully, I concur.




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