Re: Unconstitutional Acts by the Board of Election Supervisors

Dear Chairman Kish,

We are writing to protest the unconstitutional and unconscionable acts of the Board of Election Supervisors (the "Board"), led by you, against candidates for City offices for whose candidacy the City leadership objects. In an era where we and similarly minded organizations are fighting every day against authoritarian, anti-democratic tactics of officials in "red" states intended to influence election results, we never expected to see these types of tactics employed in Maryland. Therefore, we are requesting that the Attorney General, U.S. attorney and State Board of Elections commence investigations into the Board. 

Our principal focus is the unconstitutional actions that you have targeted against City Council member Martin Mitchell, candidate for Mayor [1]. To summarize, the Board has taken the position in multiple iterations, in violation of the First Amendment, that "until such a time as a properly completed packet for candidacy was submitted and the status of candidate for Mayor be determined by the Board, it was a violation of the City Election Laws to place signs and materials identifying you as a certified candidate for public office." This prior restraint on political speech is a clear violation of the First Amendment rights of all candidates. This position also clearly contravenes the Federal District Court decision in Curry v. Prince Georges County, 33 F.Supp. 2d 447,455 (D. Md 1999), which ruled that the relevant County code provision was "unconstitutional insofar as it imposes durational limits with respect to political campaign signs posted by individuals on or about their private residences." 

On July 9, 2023, Candidate Mitchell wrote to you stating that he had suspended campaigning on July 7, 2023, even though your position violated the First Amendment. On July 17, 2023, the Board fined Candidate Mitchell for ignoring the Board's edict [2].On July 19, 2023, Candidate Mitchell wrote a detailed request for reconsideration that identified multiple flaws in the Board's actions. At the July 27, 2023 Show Cause Hearing, Board members made statements highlighting the unconstitutional basis underlying the Board's position, and the August 10, 2023 decision denying the reconsideration request ignored most of Candidate Mitchell's credible arguments and effectively asserted that the Board has unlimited discretion to "control all activities conducted in connection with elections, including the concurrent exercise of authority and jurisdiction over placement of campaign materials, signage, displays, placards, stickers, and other advertisements related to any political campaign. Finally, on August 16, 2023, the Board issued another unconstitutional fine against Candidate Mitchell for failure to remove the campaign signs that had been placed prior to July 7, 2023. 

The political assault on Candidate Mitchell is obvious by the heavy-handed attention to the smallest details in comparison with the clear violations of the City Election Laws on campaign finance by Mayoral Candidate Keith Sydnor. For example, the August 16th letter also demanded detailed explanations for 12 minor campaign expenditures. In contrast, Section 6-25(d) states "No person may solicit or collect funds to be used in furtherance of the election to municipal office of any person who has not filed a certificate of candidacy and the notice of appointment of treasurer required by subsection (b) of this section." Mr. Sydnor submitted his certificate of candidacy on May 1, 2023, and his campaign finance report identifies 166 campaign contributions ($14,205.68) solicited and received from February 5, 2023 through April 30, 2023 in obvious violation of Section 6-25(d) [3]. In addition, if one accepts the Board's position prohibiting dissemination of campaign materials to the public, how does the Board not sanction Mr. Sydnor's campaign fundraising activities from February 5, 2023 through the July 1, 2023 report (prior to certification of his candidacy)? He lists about 240 contributions that are obviously the result of campaign activities. Finally, Mr. Sydnor's campaign finance report is incomplete because it fails to comply with Section 6-27(b)'s requirement to include the address of each contributor. 

Certain provisions of the City Election law are constitutionally vague and/or over broad enabling the Board to politically target disfavored  candidates using its "discretion." We note that the law also authorizes the Board to issue fines up to $1,000. Of the four fines that we know about, each has been for the maximum $1,000 and have been assessed against disfavored candidates. This pattern is troubling but consistent with the Board's pattern of targeted enforcement. 

The Board's restriction on campaign activity is not clearly stated in the City Election law and has no legitimate public purpose. This position is inconsistent with campaign practices in Maryland State, County and Federal election campaigns. The Board’s assertion that it has authority to impose prior restraint on political speech,  combined with its discretion to decide when to certify candidates and its propensity for maximum fines for minor violations, allows the Board to arbitrarily freeze the campaign activities of any candidate. Ultimately, the Board has taken an extreme position that enables it to abuse its discretion for the purpose of influencing the outcome of City elections. 

We demand that the Board publicly rescind its position, cease its abusive activities, return the fines it has issued and certify all candidates that are still waiting. 

We appreciate your prompt attention to this matter.  

Signatory Organizations

CASA In Action

Life After Release 

Progressive Maryland

UFCW 1994

UFCW Local 400

cc: Anthony G. Brown, Attorney General

Erek L. Barron, U.S. Attorney 

Jared DeMarinis, State Board of Elections 

1 While not our focus, we are also aware of the acts targeted against City Council candidates Jeffrey W. Mills and Thomas E. Matthews, Jr. for late filing of campaign finance reports.