LAW REVIEW 1071
Maryland Court of Appeals Case on Military Voting
7.0 - Military Voting Rights
By Captain Samuel F. Wright, JAGC, USN
Lamb v. Hammond, 308 Md. 286,
518 A.2d 1057 (Maryland Court of Appeals 1987).
This 24-year-old case decided by Maryland’s highest
court shows the power of military absentee ballots in deciding a close
Maryland has a unique election system. All statewide officials and members of both
houses of the legislature are elected for four-year terms that end in the
even-numbered non-presidential year, like 1986 or 2010. In such a year, the primary is held in
September, just 49 days before the general election. Certifying the primary winners and printing
and mailing general election ballots takes some weeks. As a result, Maryland’s sons and daughters
serving in our armed forces overseas are likely to be disenfranchised in the general
election. There just won’t be time for
the absentee ballot to get to the overseas voter and back by Election Day.
In 1985 and again in 1986, I traveled to Annapolis and
testified before committees of the Maryland Senate and House of Delegates. I asked them to move back the primary to earlier
in the year, in order to enfranchise the brave young men and women who serve
our country in uniform. The legislators
were unwilling to consider changing the primary date. A late primary benefits incumbents, and the
legislators we must convince are by definition incumbents.
As a “consolation prize,” the legislators passed a
bill providing for absentee ballots received up to ten days after Election Day
to be counted, under certain conditions.
The 1986 general election was the first election to which this new rule
In the 1986 general election, the voters of District
30 in Anne Arundel County had the opportunity to elect three members of the
House of Delegates. The top three
vote-getters were deemed elected. When
the Election Day ballots were counted, Donald E. Lamb came in third with 12,553
votes, and John R. Hammond came in fourth with 12,420. When the absentee ballots were counted,
Lamb’s margin was reduced to just three votes, 12,898 to 12,895. Among the absentee ballots counted, Hammond
won 475 to 345.
With the election down to just three votes, a careful
review was made of all the absentee ballots that the canvassing board had
decided not to count, for various reasons.
Among those ballots were 12 that came in from APO (Army Post Office)
addresses that were postmarked on Election
Day and were received during the first ten days after Election Day. Under the law in effect at the time (since
amended—see Law Review 1070), an absentee ballot had to be postmarked by the
day before Election Day, if the
ballot were to be counted if received during the ten-day post-election counting
period. These 12 ballots were rejected
because they were postmarked on Election
Hammond filed suit in the Maryland Circuit Court
(trial court), contending that these 12 ballots should be counted because the
instructions that accompanied the absentee ballots stated that an absentee
ballot had to be postmarked by Election
Day (not the day before Election Day) for the ballot to be counted. The Circuit Court agreed and ordered the
counting of these 12 ballots. Among
those ballots, Hammond won 8-4. That
four-vote net gain gave Hammond a one-vote margin over Lamb, 12,903 to 12,902. Yes, the outcome of the election turned on
the arcane question of whether the deadline for the postmark was Election Day
or the day before Election Day.
Lamb appealed, and the Maryland Court of Appeals gave
the case expedited handling, because the legislative session was about to
start. In an unusual move, the Maryland
Court of Appeals reviewed the Circuit Court decision directly, bypassing the
Court of Special Appeals, Maryland’s intermediate appellate court. The high court held that misleading or
incorrect instructions do not override statutory requirements, and the law in
effect at the time required that the ballot be postmarked by the day before Election Day. Thus, Lamb won by three votes instead of
losing by one.
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