Guest Commentary: Under Maryland Law, Voters Get to Decide

By Charles Scheeler

Last week, an extraordinary woman by the name of Krish Vignarajah announced she is running for governor of Maryland.

Even as the United States turns inward, for so many the world over, America remains the
“shining city on a hill” as so aptly described by President Reagan. Krish’s family was one of hundreds of thousands over the last decades who fled chaos and oppression for hope and opportunity. Her parents served as public high school teachers for decades in Baltimore city, and Krish attended K-12 public schools in Baltimore County, graduating from Woodlawn High School. From there, she went to Yale College, Oxford University on a Marshall Scholarship, and Yale Law School.

With these achievements, Krish had opportunities to achieve financial success beyond her wildest dreams. But after working in law and business — including a stint at McKinsey, the world’s leading consulting firm — she followed her true passion: helping others find a better life, just as her parents had risked everything to find a better life for her.

She served as a presidential appointee in the Obama administration, as senior adviser at the State Department and policy director to first lady Michelle Obama. Krish worked tirelessly to promote the first lady’s efforts to empower the nation’s youth and spearheaded the White House’s signature Let Girls Learn initiative, a program to provide adolescent girls with the educational opportunities they deserve.
Krish was 8½ months pregnant this past May when she gave an inspired commencement address at Hood College in Frederick. She delivered “a call to action on behalf of a
generation that desperately needs you,” as she spoke about “the historic progress and modern plight of women in this country.” BuzzFeed listed it as the #4 graduation speech of the year (beating out Sheryl Sandberg but falling behind Helen Mirren, Gloria Steinem and Pharrell)!

Leading by example, with a new baby daughter, Krish announced she was running for governor.

Like some others in the race — my wife and I proudly hosted a fundraiser for Alec Ross this past summer — Krish represents a new generation of leadership. These young leaders are relatively unknown politically, but bring a cascade of new ideas to the public square and seek to escape the identity and “zero sum” politics that plague us.

We may be at the dawn of an exciting new political era in response to the manifest failings of Trumpism. And this change is good.

But with change comes fear in some quarters, especially when outlets like Daily Kos explain why they “like Krish’s chances.” Unfortunately, this fear showed itself in the entrenched apparatus of threatened campaigns whose politics tend more toward self-preservation than the public interest. The apparatchiks had done lots of opposition research.

Instantly realizing the threat Krish presented and breaking from conventional wisdom to wait and see if a candidate gained traction, they attacked immediately, unloading their clip — anonymously — before the end of her first day.

Their main assertion is that a proud daughter of Maryland is disabled from running for governor because she voted and had an apartment in Washington, D.C., when she served in the Obama administration. The big problem for her opponents is Maryland law is not on their side. And these faceless operatives have grossly misrepresented the law in their shadowy attempt to bully Krish to withdraw from the race.

Like most states, Maryland establishes basic requirements to run for governor. In addition to the age requirement, a candidate must be a resident and registered voter of Maryland for five years immediately preceding the election.

Because Krish grew up in Maryland and was registered to vote there at least as far back as 2006 (according to public records), everyone seems to agree that Krish was a resident and registered voter in Maryland well before the required five-year period. The controversy that her anonymous opponents have raised is whether she surrendered her residency or her registered voter status because of her ties to Washington, D.C.

This is not foremost a political question; it is a legal question, and what her opponents have neglected to mention — anywhere — is that the Court of Appeals of Maryland (Maryland’s highest court) has addressed both issues of residency and voter registration, and the court’s decisions clearly establish Krish’s eligibility to run for office. Here’s a rundown of the relevant law:

On the question of residency, the Court of Appeals of Maryland has said where one is a
“resident” for purposes of running for office is the same as where one is “domiciled.” In
Oglesby v. Williams, 372 Md. 360 (2002), Maryland’s highest court explained:
[T]he principles for determining a person’s domicile are well settled. A domicile
once established continues until a new domicile is established. Blount, 351 Md. at
371 (once a person’s place of domicile is determined, there is a presumption that
it continues until superseded by new domicile).

To establish a new domicile there must be an “abandonment” of the former domicile and an “acquisition” of a new domicile. Furthermore, our case law has held that “[i]n order to effect a change of domicile, ‘there must be an actual removal to another habitation, coupled with an intention.’” The “abandonment of the old domicile [must be] so permanent as to exclude the existence of an intention to return to the former place, [and] …there must be both the animus manendi and animus non revertendi.”
Oglesby, 372 Md. at 374 (emphasis added) (internal citations removed).

In plain English, this means that even if a person establishes a new domicile in a new place, residency in Maryland does not change unless that person also intended to abandon their original domicile. Particularly because the Court of Appeals has said the “controlling factor in determining a person’s domicile is his [or her] intent,” Oglesby, 372 Md. at 373 (quoting Roberts v. Lakin, 340 Md. 147 (1995)), it would be hard for Maryland courts to find that Krish intended to abandon Maryland and never return.

To make things even clearer in Krish’s favor, Maryland long ago established that, for cases where a person resides elsewhere for the sake of a government job of limited tenure, that does not constitute a change of domicile. In Gallagher v. Bd. of Sup’rs of Elections, 219 Md. 192 (1959), the Court of Appeals considered whether Gov. Theodore McKeldin, even after his tenure as governor of Maryland, still resided in Baltimore city for candidate eligibility purposes and was therefore permitted to run for mayor of Baltimore.

The parties agreed the former governor had moved from Baltimore city to Annapolis, registered to vote and voted in state and municipal elections in Annapolis, lived with his family in Annapolis, and established many other ties to Annapolis during his tenure. Even with all this, Maryland’s highest court concluded that Gov. McKeldin had not abandoned his domicile in Baltimore city and that he could run for mayor. It found that he lacked the intent not to return to Baltimore city after his government role in Annapolis was finished, which was required for his residency to shift for candidate eligibility purposes.

The Court of Appeals added: Fortifying the above conclusion is the myriad of cases which hold that a change in residence or abode to enable a person to perform the duties and functions of a civil office not of life tenure, whether elective or appointive, does not, of itself, constitute a change of domicile. Gallagher, 219 Md. at 203. This is consistent with the Court of Appeals emphasis in Oglesby on the two separate factors needed to establish that a person has abandoned their original domicile: First, the person must intend to abandon his or her former domicile. Second, the new place of habitation must be intended by the person to be the new domicile.
Both factors must be firmly established together to fulfill the intent requirement.
Oglesby, 372 Md. at 375. For someone who grew up in Maryland, whose entire family is in Maryland, who became a licensed attorney in Maryland, got married in Maryland, and is now raising her daughter in Maryland, it seems impossible to say she intended to abandon her home state because of ties to Washington, D.C. A relatively brief sojourn to D.C. while serving in term-limited positions with the Obama administration as a senior-level presidential appointee at the State Department and then the White House does not eviscerate a lifetime of Maryland residency.

What’s more, it cannot help her opponents’ argument that Washington, D.C., has the most
transient residents in the country. Thousands of people come every year to assume federal jobs and then afterward return to their home state. And examples abound of former officials, Democratic and Republican, who have returned after federal service to their home state to run for office.

Perhaps this is why her opponents have focused their challenge on her voter registration status, framing this in classic dog whistle terms by questioning her “citizenship” — their term, not mine.

Does anyone remember the person who raised divisive allegations about President Obama? Are we a better country now by inviting that sham debate to contaminate public dialogue for years?

However framed, under the settled law of Maryland, this too is a wholly meritless claim.
Everyone agrees Krish was a registered voter as early as 2006. Under Section 3-501 of the
Maryland Election Law Code, a person can be removed from the list of registered voters only if certain conditions are met. There’s a list — from being deceased, to a signed, authenticated request from the voter, to serving a sentence for a felony conviction.1

Neither registering to vote nor voting elsewhere are among the list of specified triggers for a change in voter registration status.

Krish’s opponents seem to be aware of this. So instead of claiming she was no longer registered, they point to the fact that her voter registration became inactive in February 2015 until it was reactivated in 2016. Meaning, for an interval during the five-year period during which a candidate must be a registered voter, Krish was placed into “inactive status on the statewide voter registration list.” Elec Law Code § 3-503(a) (2016).

That leads to the main question: does an inactive registered voter count as a registered voter under Maryland law? What Krish’s opponents have again neglected to mention is that this question has also been clearly answered by the Court of Appeals — and not in their favor.

In Doe v. Montgomery County Board of Elections, 406 Md. 697 (2008), the Court of Appeals
summarized its earlier decision in Maryland Green Party v. Maryland Board of Elections, 377 Md. 127 (2003), in which Maryland’s highest court ruled that the Maryland Constitution, in speaking of registered voters, does not permit a distinction between active and inactive voters: We recently had the opportunity to interpret whether the term ‘‘registered voter’’ included “inactive” voters in Maryland Green Party v. Maryland Board of Elections (2003). In that case, the Maryland Board of Elections declined to
certify a nominating petition for a Congressional candidate due to a lack of
verifiable signatures on the petition; among the reasons cited for the rejection of
over a thousand signatures was that many of the signatures were from “inactive”
voters. At the time of Green Party, Section 1–101(mm) of the Election Law
Article stated that “‘registered voter’ does not include an individual whose name
is on a list of inactive voters,” and Section 3–504(f)(4) provided that
“[i]ndividuals whose names have been placed on the inactive list may not be
counted as part of the registry.” We declared these provisions unconstitutional,
because the Maryland Constitution, in speaking of registered voters, did not
distinguish an “inactive” voter from a registered one; both are registered voters:
[Section 2 of Article I of the Maryland Constitution] contemplates a single registry for a particular area, containing the names of all

1
§ 3-501. Removal of voters from registry
An election director may remove a voter from the statewide voter registration list only:
(1) at the request of the voter, provided the request is: (i) signed by the voter; (ii) authenticated by the election director; and (iii) in a format acceptable to the State Board or on a cancellation notice provided by the voter on a voter registration application;
(2) upon determining, based on information provided pursuant to § 3-504 of this subtitle, that the voter is no longer eligible because: (i) the voter is not qualified to be a registered voter as provided in § 3-102(b) of this title; or (ii) the voter is deceased;
(3) if the voter has moved outside the State, as determined by conducting the procedures established in § 3-502 of
this subtitle; or
(4) if, in accordance with the administrative complaint process under § 3-602 of this title, the State Administrator or the State Administrator’s designee has determined that the voter is not qualified to be registered to vote.
Qualified voters, leaving the General Assembly no discretion to decide who may or may not be listed therein, no discretion to create a second registry for “inactive” voters, and no authority to decree that an “inactive” voter is not a “registered voter” with all
the rights of a registered voter. Doe, 406 Md. at 723-24 (quoting Green Party, 377 Md. at 142-43). After confirming the holding in Green Party, the court in Doe doubled down to resolve any doubt: “We emphasize that there is no room, after our decision in Green Party, for the maintenance of an ‘inactive’ list to define registration status, because both ‘active’ and ‘inactive’ voters are registered voters.” Id. at 726.

The law here is every bit as clear as the demagoguery that underlies this attempted character assassination. Based on Maryland’s state constitution and binding decisions from its highest court, claims that Krish is ineligible to run for governor are unmeritorious. There is nothing new or surprising about opponents, even Democratic primary ones, manufacturing reasons to try to hobble or knock out a credible new threat. But it should be made clear that voters in Maryland will get to decide who they want as governor — and that Krish Vignarajah will be among the choices.

 
Charlie Scheeler, a longtime Maryland lawyer and lifetime resident, is not affiliated with any campaign. The views expressed are solely his own.

8 comments

  • This legal analysis seems persuasive. If we have any Maryland electoral law experts reading this blog, please comment and offer any citations that may contradict this analysis. Otherwise, for me, the matter is closed. Krish should be elected Governor!

  • Really ? A woman who couldn’t be bothered to request an absentee ballot, or vote during the WEEK LONG early voting period in the jurisdiction that she supposedly wants to be the highest elected official of now ?????
    That lack of commitment to the state of Maryland does NOT convince me she is the best choice.

  • I thought the issues raised in this post were concerning at first, but the research here checks out. The residency issue is basically a first year civ. pro. exam question with an obvious answer. And the registration issue is well-settled. Ms. Vignarajah has every right to run for governor of her home state. It’s time to put the political gamesmanship behind us and allow the candidates to move forward on the merits. I understand that prospect might be more frightening for some candidates than others.

  • I am not a lawyer, and the post was too long and convoluted for me to finish, but my gut reaction is this is why people voted for Donald Trump for President. There is an arrogance about this woman (shared by many Democrats) that just because she is well educated and worked for the White House, she does not have to follow the rules as everyone else does. She should not be elected governor of Maryland.

  • I heard her on the Kojo Nnamdi show and a MD election judge called in and said that once she registered in DC, that negated her MD registration. That made sense because clearly she could not be allowed to vote in both places.

  • I also listened to the show and heard the comment from the “judge” who was from DC and not Maryland. This person is neither a Maryland resident, Maryland lawyer, nor Marylans election official. Thus this dc “judge” is not qualified to issue any relevant opinion on Maryland election issues.

    Thus piece however, does appear to do a good job of explaining actual Maryland law based on opinions written by the Maryland Court of Special Appeals. Based on the reading of actual Maryland case law she appears to be meet the legal prerequisite to run. Good luck as this state needs a refreshing change of leadership.

  • I am a lawyer, and I did not find the post convoluted (except for the formatting). I don’t see how Krish going to D.C. to serve in the Obama administration and voting while there is any different than McKeldin going to Annapolis to serve as governor and voting while there. McKeldin planned to and did return to Baltimore City; Krish planned to and did return to Maryland. Despite the authoritative ring of “election judge,” those folks are not judges or even lawyers (at least they’re not required to be and usually aren’t). I haven’t the time to research this stuff and find out whether any of these points can be rebutted, but these authorities seem awfully persuasive. I think the ball is in the challengers’ court now. If they’ve got an answer to all this case law, let’s hear it.

  • The commentator is correct that the issue is a legal one and is likely to be decided by a court. Ms. Vignarajah may have a problem meeting the constitutional requirements for governor if she registered to vote and did vote in Washington, DC in 2014. The comparison to Governor McKeldin’s situation is faulty. A governor is required to live in Annapolis by the Maryland constitution. A White House aide is not required to live in DC. Moreover, the issue in that case was whether the governor who had to live in Annapolis could still vote in Baltimore City. Ms. Vignarajah would have still been able to vote in Maryland if she maintained her Maryland residency, which as the commentator notes is domicile under Maryland law. Therefore, even if she spent all of her time in DC so long as she didn’t intentionally abandon her domicile in Maryland, she is a legal resident of Maryland. If she registered to vote in DC, however, she would have been asked to affirm that she does “not claim voting residence outside of the District of Columbia.” She now says that she has always been a Maryland registered voter, including the time she apparently voted in DC. Thus, the question is which of the following is true: the affirmation when she registered to vote in DC or the statement now?

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