Maryland Senate President Bill Ferguson (D-Baltimore) Monday vowed action on reforms to the way state legislative vacancies are filled – an issue that has come to the fore this year in Montgomery County, with five openings decided by a vote of the county’s 24-member Democratic Central Committee.
“This is going to be an issue that we take up very seriously this year,” Ferguson vowed during a Monday appearance at the District 18 Democratic Breakfast Club in Silver Spring.
Ferguson threw cold water on prospects for pending action on two other reforms that have been discussed repeatedly in county political circles in recent years – instituting so-called ranked choice voting and doing away with contested elections for candidates for Circuit Court.
After being sworn into office in January, Gov. Wes Moore (D) named four members of Montgomery County’s all-Democratic, 35-member legislative delegation to his new administration – setting off a game of musical chairs in which five new legislators were appointed by the Montgomery County Democratic Central Committee under the current terms of the Maryland Constitution.
Under current constitutional provisions, the five legislators will serve for nearly a full four-year term – until the next regularly scheduled state election in 2026 – without having to face the voters in a special election.
Asked by one questioner at the breakfast whether he thinks the current system is “fine the way it is,” Ferguson responded, “No, I do not think it is fine the way it is. The question then becomes ‘What do you do?’ — and that’s where there has been ongoing debate and discussion.”
Central to that debate has been the desired frequency for special elections, along with the processes used for voting in them. “We’re going to try to balance the interests here,” Ferguson pledged.
At present, half of the 50 states have systems to fill state legislative vacancies through special elections, according to the National Conference of State Legislatures. The governor, boards of county commissioners, or political parties fill the slot in the other 25 states.
Maryland’s system is something of a hybrid, in which the county political committee of the party of the departing legislator determines who fills the vacancy. The governor makes the appointment in what is little more than a formality.
Any change passed by the General Assembly this year would have to be put before the voters in November as a constitutional amendment. But Ferguson’s biggest challenge as he pursues change may not be the Senate over which he presides – but rather the House of Delegates.
In both 2021 and 2022, the Maryland Senate overwhelmingly passed a bill sponsored by Sen. Clarence Lam (D-Anne Arundel/Howard) that would have forced legislators appointed prior to midpoint of a four-year term to compete in a special election scheduled at the same time as the election for president and other federal offices. Lam’s bill twice died in the House of Delegates without moving out of committee.
Ferguson suggested Monday that there has been a resistance on the part of the Maryland State Board of Elections when it comes to special elections.
“The administration of a special election is not something that Maryland’s elections division has been favorable toward for a number of reasons [relating] to logistics and costs,” Ferguson said.
To address the cost issue, there have been suggestions to hold special elections via mail ballot rather than shouldering the cost of opening polling places and hiring election workers.
“I will say that, previously, mail-in ballots were something that I had a little bit of a question about: I thought it was really important to have in-person voting,” he said. “Then the pandemic happened. We had the situation where everyone was sent a mail-in ballot, and all of a sudden my perception changed quite a bit. I realized how easy it was.”
A day after Ferguson’s comments, Common Cause Maryland Tuesday released a poll showing that 85 percent of Maryland voters favor holding special elections to fill legislative vacancies. The survey found that only 13 percent support continuing the status quo, under which the local party committee of the legislator who had previously occupied the vacant seat selects the replacement.
The poll of 818 Maryland registered voters, conducted last month for Common Cause by Annapolis-based Gonzales Media & Research Services, has an error margin of 3.5 percentage points.
On ranked choice voting, Ferguson expressed a personal preference for it – but said he is reluctant to move forward at this time.
Ranked choice voting – sometimes referred to as an instant runoff — is used nationally in such cities as New York and San Francisco, and is utilized locally in Takoma Park municipal elections. A so-called local bill to authorize such a system for Montgomery County elections has been sponsored in recent years by members of the county’s delegation in Annapolis.
In most ranked choice voting systems, if no candidate wins a majority of first-preference votes, the candidate with the least first-preference votes is eliminated. Second-preference votes are then tallied for the remaining candidates, and the process of allocating ranked voter preferences continues until a candidate achieves a majority.
“I am almost entirely certain that ranked choice voting is the right way to go,” Ferguson said Monday. But, he added, “…I am concerned about moving it forward in this moment, when there are questions about elections’ integrity generally. [Ranked choice voting] is more confusing, and I think any change to an election now – when elections are already under threat – is something that [needs to] be really thoughtfully done.”
He added: “I think more education is going to be needed around ranked choice voting….I do think it will come eventually. I just don’t know that it’s right now.”
Likewise, Ferguson expressed strong reluctance to moving a bill getting rid of the current system for electing Circuit Court judges, in which judicial candidates compete in both parties’ primaries.
This system is in contrast to the current method for choosing district judges – who are appointed by the governor and confirmed by the Maryland Senate without having to stand for election – as well as for appellate court judges, who face a “yes-or-no” retention vote every 10 years after being appointed by the governor and confirmed by the Senate.
Questions about the wisdom of Circuit Court judicial elections – and potential conflicts-of-interest arising from them — intensified locally in the wake of the 2020 election, which featured an often bare-knuckled contest in which a challenger, Rockville attorney Marylin Pierre, took on four incumbent judges who initially acquired their seats through gubernatorial appointment.
A workgroup co-chaired by Montgomery County Circuit Court Judge Kathleen Dumais – who served in the House of Delegates for two decades – held a series of public hearings on possible reforms for selecting judges in late 2022 and early 2023.
The workgroup is slated to issue and discuss a report by mid-November, before forwarding it to Matthew Fader, the chief judge of the Maryland Supreme Court. The workgroup’s recommendations are expected to be forwarded to the General Assembly for consideration.
Ferguson exhibited little appetite for revisiting this issue.
“In 2022, we had a very robust conversation about this in the legislature. We came very close to moving something forward. Its failure to pass in 2022 likely dooms its outcome for a while,” he said.
While acknowledging that “it doesn’t make a lot of intuitive sense” for judges to be running in contested elections, Ferguson added: “However, Maryland has a long history. And unfortunately, in a number of our counties, we have not a great history when it comes to having a bench that is diverse and represents the people.”
Historically, some leading voices in Maryland’s large Black population have been particularly reluctant to do away with contested judicial elections, arguing that they have provided an avenue for minority group members to reach the bench.
“There is a sincere and fundamental belief that elections are essential in order to make sure that, in places where appointments are not reflective of the population, that communities of color have the opportunity to be able to put somebody on the ballot and vote for the judges of their choice,” Ferguson said.
He noted that there had been recent efforts at legislative compromise, involving replacing contested elections for Circuit Court judges with up-or-down retention votes.
“The [Legislative] Black Caucus ultimately was not supportive of that, and I don’t see that shifting any time soon because of what happened in the 2022 election — where several minority judges were victorious in their general elections,” Ferguson said. “It was evidence of the process providing greater diversity and therefore I think it is likely to stay.”
The issues involving lack of minority representation in judgeship has not applied to Montgomery County in recent years — the latest stats from 2020 showed 22 percent of Circuit Court judges (five of 23) and half of District Court judges (six of 12) were minorities.
Ferguson’s reference appears to have been to the 2020 general election, when four challengers who were members of minority groups ousted four “sitting judges” in three counties who had initially acquired their seats through gubernatorial appointment.
In the 2022 general election, there was only one contested Circuit Court election statewide, with a sitting judge Monise Brown of Charles County appointed by then-Gov. Larry Hogan (R) retaining her seat against a challenger.
