April 8, 2016

VIA ELECTRONIC MAIL

Chairman John Haynie
Pocomoke City Board of Election Supervisors
101 Clarke Avenue
Pocomoke City, Maryland 21851
Dear Mr. Haynie:
I write on behalf of the American Civil Liberties Union of Maryland and Citizens
for a Better Pocomoke, concerning the District 1 election held April 5, and problems with
the voting machine used during the process. As we understand it, the Election Board has
declined to certify the election results due to discrepancies in the count caused by
machine error, and has recommended that the election be re-run. We agree that rerunning the election is necessary in this situation.
However, the Election Boards proposal that balloting in the new election be
conducted by absentee ballot and be limited to only those voters who participated in the
April 5 election is unacceptable and must be rejected. In situations where elections are
invalidated due to error, causing the need for an election to be run anew, the government
is constitutionally required to conduct the new election in a completely free and open
manner, not to limit the new election in any way that continues the taint of the invalidated
election. See, e.g., Bauer v. Soto, 277 Conn. 829 (Conn. S.Ct. 2006) (even when
problems with election machine affected only one of 14 voting districts, entirely new,
citywide election open to all voters was required to remedy the problem.)
To limit the new election in the manner proposed by the Election Board would be
unconstitutional. Ayers-Schaffner v. DiStefano, 37 F.3d 726 (1st Cir. 1994) (Right to vote
in new, curative election for seats on school committee could not constitutionally be
restricted to those who had participated in original, defective election; primary objective
of second election was to choose, through valid procedures, candidates supported by
majority of eligible voters, and not to recreate particular condition surrounding original
election); Broadhurst v. City of Myrtle Beach Election Commission, 342 S.C. 373 (S.C.
S. Ct. 2000) (proper remedy for voting machine's failure was an entirely new election
between all three runoff candidates open to all qualified voters in all precincts.) Accord,
Partnoy v. Shelley, 277 F.Supp.2d 1064 (S.D. Calif. 2003) (statutory requirement that no
vote cast in forthcoming gubernatorial recall election be counted unless the voter also
voted on the recall question itself unlawfully effected a violation of voters free speech,
due process, equal protection, and other constitutional rights); In re Hickenlooper, 312
P.3d 153 (Colo. S.Ct. 2013) (state constitutional provision requiring those who wished to

vote for a successor candidate in a recall election to also cast ballot on recall issue
violated First Amendment).
This is not a close question. As the Court ruled in the Distefano case, which is
directly on point: The right to vote is of the most fundamental significance under our
constitutional structure, and depriving a qualified voter of the right to cast a ballot
because of failure to vote in an earlier election is almost inconceivable. 37 F.3d at 727,
quoting Burdick v. Takushi, 112 S.Ct. 2059, 2063 (1992).
In addressing arguments that a second election to correct flaws in an earlier
election is somehow different, allowing the sort of restrictions the Election Board
proposes here, the Distefano Court ruled:
The original election was defective and invalid, and the Board deemed its
results unreliable. The primary objective of the second election therefore
must be viewed as identical to that of the original one, to choose through
valid procedures the candidates supported by a majority of the eligible
voters.
37 F.3d, at 728. Exclusion of voters who had not voted in the first election from the
second election blocks them from participating in the only election that counts, the court
ruled, concluding:
It bears repeating that [t]he right to vote is one of the most important and
cherished constitutional rights, Leaks v. Board of Elections of the City of
New York, 58 N.Y.2d 882, 883, 447 N.E.2d 42, 43, 460 N.Y.S.2d 494, 495
(1983). In a fresh election designed to determine which candidates are
supported by a majority of the properly registered voters, we cannot
conceive of a governmental interest sufficiently strong to limit the right to
vote to only a portion of the qualified electorate.
Id. at 731.
The same holds true here.
For these reasons, we urge Pocomoke City to schedule a new, curative election
open to all District 1 residents, with advance notice to the candidates and the electorate in
order to provide sufficient opportunity for all to prepare.
Please advise us as soon as possible and by no later than close of business on
Monday, April 11 as to your intentions in this regard. If we do not hear from you by that
date, we will conclude that you intend to proceed with the Boards proposal to conduct an
unlawfully restricted election, and will take action accordingly.
You can reach me by telephone at 410-889-8550, ext. 120.
constraints, we appreciate your urgent attention to this matter.

Given time

Sincerely,

Deborah A. Jeon
Legal Director
cc:

William C. Hudson, Esq.

Mayor Bruce Morrison