David Plymyer: A failure of leadership on special elections

By David Plymyer

The writer is a former county attorney in Anne Arundel County. He can be reached at dplymyer@comcast.net or on X: @dplymyer.

This year’s session of the Maryland General Assembly had its share of achievements and disappointments, but it was the failure to pass Senate Bill 29 that should prompt some soul-searching, especially among the leadership of the House of Delegates. SB 29 would have placed a measure on November’s ballot seeking voter approval of a long-overdue constitutional amendment changing the manner in which vacancies in the state Senate and House of Delegates are filled.

The bill enjoyed broad popular support as well as bipartisan backing among members of the General Assembly. Nevertheless, Del. Vanessa E. Atterbeary (D-Howard), chair of the House Ways and Means Committee, allowed it to die in her committee without ever placing it on the agenda for a vote.

It was an unusually ignominious end for such an important, high-profile bill. Atterbeary and House Speaker Adrienne A. Jones (D-Baltimore County) owe the public an explanation why it occurred. To date, none has been provided.

Correcting a mistake

A change made to the Maryland Constitution in 1936 provides that a vacancy in the Senate or House is filled by the local central committee of the party with which the person vacating the seat was affiliated. The person selected serves the remainder of the vacated four-year term. There is no provision for a special election.

Whatever the situation was in 1936, the effect of the amendment over time has been distinctly anti-democratic. The legitimacy of senators and delegates lies in their selection by the voters of their districts to represent the voters’ interests.

The problem now is that a strikingly large number of senators and delegates first acquire their seats through appointment rather than through election by voters. According to figures published by Common Cause Maryland in 2023, one-third of the 47-member State Senate and 20% of the 141-member House of Delegates, or 23% of the entire General Assembly, first acquired their seats by appointment.

The current process has been the target of “good government” groups for many years because it disenfranchises voters. As described by Joanne Antoine, executive director of Common Cause Maryland, “The General Assembly can’t continue to allow a handful of individuals to speak on behalf of thousands of voters.”

Reform also enjoys support among those voters. A poll conducted last October by Annapolis-based Gonzales Research and Media Services found that 85% of Maryland voters surveyed favor a special election to fill vacant seats. The impressive level of support is not surprising, given that there is little less appealing to ordinary voters than having their representatives chosen for them by a group of political insiders.

A reasonable compromise

The constitutional amendment proposed by SB 29 would have required a special primary and general election if a vacancy occurred at least 55 days before the candidacy filing deadline for the regular statewide primary and general elections held in the second year of the term to which the vacating senator or delegate was elected. The special elections would be held during the regular statewide primary and general elections and the central committee would appoint someone to fill the vacancy only until a successor was elected.

Although attempts to change the process failed in the past, 2024 looked like the year things would be different. Senate President Bill Ferguson (D-Baltimore City) was on board. The efforts at reform eventually coalesced around SB 29, introduced by Sen. Cheryl C. Kagan (D-Montgomery). SB 29 was amended to be identical to House Bill 412, introduced by Del. Linda Foley (D-Montgomery).

The bill was the product of hard work and good-faith compromise, balancing the goal of ensuring the democratically elected nature of the legislature against the costs of special elections. It was strongly advocated by numerous good government groups, including Common Cause Maryland, the Maryland Public Interest Group, and the Maryland League of Women Voters.

SB 29 passed the Senate by a 43-2 vote on Feb. 27 and was referred to the House Ways and Means Committee. A hearing was held before the committee on March 19 at which only Kagan testified. No questions were asked nor did any discussion occur.

Atterbeary never placed the bill on the agenda of a voting session of the committee, so it died without committee members having to go on record with their votes. SB 29 would have passed handily if forwarded for a vote by the entire House.

Concerns about the impact on diversity

Interest in SB 29 was especially high in Montgomery County, where the county Democratic Central Committee filled five legislative vacancies in the first half of 2023, allowing those appointees to serve three and a half to four years without going before the voters. MoCo360, a hyperlocal news site, attributed the bill’s demise to concerns among some members of the Legislative Black Caucus about moving to a system of special elections. Atterbeary is a member of the caucus.

MoCo360 reported being told by several legislators who requested anonymity that there are fears that reducing the role of central committees in filling vacancies would impede efforts at achieving greater diversity in the General Assembly. It also noted, however, that the Black Caucus had not taken a formal position on the bill, that 13 of the 15 caucus members in the Senate voted for it, and that five of the co-sponsors of Foley’s bill, HB 412, were caucus members.

It would not be surprising if a legislator was reluctant to publicly acknowledge that his or her opposition to SB 29 was based on fear that it would reduce diversity. Pursuing diversity is a meritorious goal, but not at the expense of a democratic principle as fundamental as the right of citizens to select their legislators by popular vote.

A veteran legislator suggested to me that some sitting delegates prefer the current system simply because they believe it gives them the inside track when vacancies in the Senate open up. That sounds plausible, but don’t expect anyone to admit that motive, either.

Unacceptable silence

When similar bills died in previous years, fingers were pointed at Del. Jheanelle K. Wilkins (D-Montgomery), who is chair of the Election Law Subcommittee of the House Ways and Means Committee as well as the Black Caucus. Wilkins pushed back, protesting that “no one person in the House gets to decide that a bill moves forward or not.”

True, and it is unlikely that Atterbeary would have killed a bill with a profile as high as SB 29 in the manner in which she did without the approval of Speaker Jones. The Daily Record reported that it tried to get comments from both Atterbeary and Jones after the session ended. The newspaper said it was unable to reach Atterbeary and that a spokesperson for Jones declined to comment.

It’s bad enough that one or two powerful legislators can kill a bill like SB 29 in such a peremptory fashion, but the failure to explain to the public why it was done adds insult to injury. The silence of Atterbeary and Jones on the fate of SB 29 is unacceptable.

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