The 2018 election season is upon us.
In almost every recent election candidates or voters have brought cases challenging the qualifications of other candidates, the actions of the Maryland State Board of Elections or local Boards of Elections, or the results of elections. The legal shoals upon which many election cases have foundered are the statute of limitations and the equitable defense of laches.
Maryland Code, Election Law, §12-202 provides for a 10-day limitations period after the challenged act or omission relating to an election occurs or becomes known to the petitioner. The doctrine of laches may require an even shorter period for filing a case.
As the Court of Special Appeals of Maryland stated in Baker v. O’Malley, 217 Md. App. 288, 296, 92 A.3d 588, 593 (2014), cert. denied, 440 Md. 115, 99 A.3d 779 (2014), “claims for judicial relief relative to an election must be prosecuted without delay.”
The Maryland State Board of Elections publishes an Election Calendar on its website. The Election Calendar lists many important deadlines for candidates and voters. However, the Election Calendar is subject to change and does not list all possible deadlines for potential challengers. See, e.g., Lamone v. Schlakman, 451 Md. 468, 153 A.3d 144 (2017).
Once an election law challenge is filed, the parties must be prepared for quick and intense litigation. For example, the Schlakman case, in which I represented candidates who were challenging whether another candidate had filed after the filing deadline, went from the date on initial filing in the Circuit Court for Anne Arundel County through full briefing and argument in the Court of Appeals of Maryland within 30 days.
One factor that impacted the Schlakman case was the Military and Overseas Voter Empowerment Act, which requires that absentee ballots be mailed to overseas and military voters at least 45 days before an election. It is very unlikely that the courts will order any ballot change once overseas and military ballots are mailed. There are other deadlines that also impact the likelihood that a court will dismiss a case on limitations or laches grounds.
If a candidate or voter wants to challenge something relating to an election, he or she should run to court post haste.