Latest Push for Special Elections To Fill Maryland Legislative Vacancies Gets a Boost

For the second time in four years, Del. David Moon of Silver Spring is pushing legislation that would require special elections to fill vacancies in the Maryland General Assembly in some instances.

Moon’s legislation received a boost last week when the Montgomery County Democratic Central Committee (MCDCC), on a voice vote with little debate or controversy, adopted a resolution endorsing it. It appears to be the first time that a party central committee in any of Maryland’s 24 major jurisdictions has endorsed such a change—which would dilute the power of the state’s two major parties to fill mid-term vacancies in the state Senate and House of Delegates.

Meanwhile, eight of Moon’s colleagues in the Montgomery County House delegation are among a total of 23 legislators—including three Republicans—co-sponsoring the measure in Annapolis this year. And Moon believes the proposal has picked up momentum since he put forth similar legislation in 2015, his first year in office.

“[That year] I think some folks were confused about what we were trying to do,” he said in an interview. “I think the education levels on this are going to be better this year than in the past.”

But Moon acknowledged it remains “unclear” whether his bill, HB307, will come to a vote before the General Assembly adjourns in mid-April. If approved, the proposal would have to be put before voters in a referendum this fall, since it would require a change in the Maryland constitution.

“When you’re putting anything on the ballot, it obviously gets a closer look than a normal bill,” Moon said in an interview, noting that proposed constitutional amendments must clear the legislature with a 60 percent supermajority.

Proposals such as Moon’s have traditionally been resisted by the major political parties due to concerns about a loss of leverage and clout. “Part of it is about the power over that process. That’s why I’m glad Del. Moon is introducing this, because I think we’ve seen that power abused a little bit by some of the party committees for the different counties,” said Damon Effingham, acting director of Common Cause Maryland, which is supporting Moon’s bill.

Asked for the Maryland Democratic Party’s position on Moon’s legislation, a spokesman said he could not comment until the state party’s executive committee next meets. That meeting is slated for March 19 which, coincidentally, falls on “crossover” day in the General Assembly.

With rare exceptions, bills that have not passed at least one legislative chamber by crossover day are considered dead for the year. Moon’s bill was the subject of a hearing two weeks ago in the House Ways and Means Committee, but a committee vote has not been scheduled.

Elections to four-year terms in the state Senate and House of Delegates are held in nonpresidential years. Currently, any time during those four years that a vacancy occurs, it is filled by the county central committee of the political party that previously held the seat, with the governor giving final—albeit largely pro forma—approval to the selection.

Moon’s legislation would ensure that if a vacancy occurred in either chamber in the first year of a legislator’s term, it would be filled by a special election the following year. “That’s always going to be the presidential primary year,” he noted. In such cases, political parties would still select someone to fill the seat subject to gubernatorial approval, but a special election would be required if the vacancy occurred 21 days or more before the regular candidate filing deadline.

The voting to fill the vacancy would occur on the same days as the primary and general elections   scheduled in a presidential year—a provision intended by Moon to avoid a stand-alone special election, which critics complain are often held at a high cost to the taxpayer.

If a vacancy occurred after the filing deadline in the presidential year, the current system would remain in place under Moon’s bill, with a replacement selected by the party committee of the jurisdiction serving until the next state election.

The issue is hardly academic: Of Montgomery County’s current all-Democratic 32-member legislative delegation, nearly one-third—four senators and six delegates—first won their seats via appointment by the MCDCC, as opposed to a process open to the electorate of the district with the vacancy.

In the past five years alone, the MCDCC has been called upon to fill six vacancies triggered by the resignation or election to higher office by a member of the county’s Annapolis delegation. That has sparked complaints from some party activists over what they considered a lack of the openness in the appointment process—and prompted calls to allow for a special election in such instances. 

Moon himself was involved in one of those contests, when he and then-Del. Will Smith of Silver Spring in late 2016 competed for appointment to the state Senate seat vacated by now-U.S. Rep. Jamie Raskin—with Smith emerging as the winner among MCDCC members.

Had it been in force at the time, Moon’s bill would not have affected that contest—which occurred too late in Raskin’s four-year term to be covered by it. But it would have had an impact a year earlier, when then-Sen. Karen Montgomery of Brookeville resigned just a year into her second term. That vacancy occurred more than 21 days before the filing deadline for the 2016 primary, which would have subjected the seat—to which then-Del. Craig Zucker was named by the MCDCC—to a special election that year.

In addition, four other members of the county’s current delegation were appointed in 2007, less than a year following the 2006 state election. The four—Sens. Nancy King of Montgomery Village and Dels. Al Carr of Kensington, Bill Frick of Bethesda, and Kirill Reznik of Germantown—served for three years before being directly elected by the voters in 2010.

Under Moon’s proposal, their names would have been on the ballot in 2008.

In arguing for his bill, Moon pointed to 2015—the year after Gov. Larry Hogan was first elected. “The reality is, though, that the folks most impacted by a bill like this are delegates and senators who get appointed into a gubernatorial administration or who are appointed judges by the governor. Both of those scenarios happened when Hogan came in, and it’s entirely possible that it happens again with Hogan or a new governor in 2019,” Moon contended.

“So if we want to deal with this problem of first-year appointees, this is really the last chance to do it—otherwise, we have to wait until five years from now to get this fixed, which is to me less than ideal,” he added.

Moon also noted that a constitutional change he proposed in 2016—to require special elections for U.S. Senate, state attorney general and state comptroller if a vacancy occurs in the first half of the term—was approved by referendum. “We’re basically asking my colleagues to put us on the same process,” he said.   

Overall, about one-third of the current 188-member General Assembly acquired their seats via appointment rather than election. Nationally, about half of states have systems similar to Maryland, according to the National Conference of State Legislatures—with legislative vacancies filled by a combination of the governor, local governing bodies, or political party committees.

The other half of the states require special elections to fill vacancies, although the speed with which a special election has to be held varies widely from state to state.

“When I reached out to Common Cause chapters in other states to talk about ‘What are best practices, what do you guys do?’ it’s different throughout the country,” Effingham said. “Some people really prefer a special election as quickly as possible, and that sounds like a very good democracy goal. But then you start thinking about participation in those kinds of special elections, which is significantly lower.

“There are a lot of competing kind of ideals involved in these situations, and reasonable people can disagree. So it’s just a balancing act.”