Did a new political party's presidential nominee have to file nominating petitions to get on Maryland's general election ballot in the 1980s?

Plain-English summary

The Administrator of Maryland's State Administrative Board of Election Laws asked whether a new political party's presidential nominee had to file nominating petitions, as required of the party's other candidates, before appearing on Maryland's general election ballot. Under the Election Code, a newly formed party that had not attracted 10% of registered voters generally had to file petitions signed by 3% of eligible voters for each office before its nominees could appear on the ballot. The opinion concluded that the presidential nominating process was different: because presidential and vice-presidential candidates are chosen at national conventions rather than through the usual state nomination process, and because the Election Code separately addressed how parties select delegates to national conventions and presidential electors, the general petition-filing requirement did not apply to a party's presidential ticket. The opinion reaffirmed the reasoning of a 1972 AG opinion reaching the same conclusion for an already-established party and extended it to newly formed parties as well, since the statutory definition of "political party" covered both.

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did a new political party's presidential nominee have to file nominating petitions to get on Maryland's general election ballot in the 1980s?
According to this 1984 opinion, no. The Attorney General concluded that a properly certified presidential and vice-presidential nominee of a new party's national convention was entitled to appear on the Maryland ballot without filing the nominating petitions required of the party's other candidates.

Why were presidential candidates treated differently from other candidates of a new party?
The opinion explained that the Election Code recognized a unique nominating procedure for President and Vice President, selection at a national convention, rather than through direct voter nomination, and contained separate provisions governing how parties selected convention delegates and presidential electors that did not reference the general nominating-petition requirement.

Did this rule apply only to established parties, or to brand-new parties too?
The opinion concluded it applied to both. It noted that the Election Code's definition of "political party" covered a party that had polled enough votes in a prior election as well as a newly formed party meeting the statutory formation requirements, and that the provisions governing presidential nominations did not distinguish between the two.

Background and statutory framework

Under Article 33, §4B-1 of the Maryland Code, a new political party was formed by filing petitions signed by at least 10,000 qualified voters and meeting other procedural requirements; if fewer than 10% of registered voters affiliated with the new party, its nominees generally needed to comply with the petition requirements of Article 33, §7-1 to appear on the general election ballot. The opinion reasoned from Article 33, §8-2(a), which specially treated presidential preference primaries, and Article 33, §§12-5, 12-7(a), and 10-1, which governed how parties selected national convention delegates and presidential electors, to conclude that these provisions displaced the general petition requirement for presidential and vice-presidential nominees. The opinion built on and extended 57 Opinions of the Attorney General 210 (1972), which had reached the same conclusion for an established minor party, and cited 62 Opinions of the Attorney General 411, 413 (1977) for the general rule that a newly formed party's other nominees needed to comply with the petition provisions.

Citations

Statutes:

• Article 33, §7-1 of the Maryland Code (nominating petition requirements)
• Article 33, §1-1(a)(15) of the Maryland Code (definition of "political party")
• Article 33, §4B-1 of the Maryland Code (formation of a new political party)
• Article 33, §5-1(a) of the Maryland Code (primary election nomination requirement for parties with sufficient voter affiliation)
• Article 33, §4-1(a) of the Maryland Code (nominee selection for parties below the voter-affiliation threshold)
• Article 33, §8-2(a) of the Maryland Code (special treatment of presidential preference primaries)
• Article 33, §12-5 of the Maryland Code (selection of national convention delegates for parties without primary elections)
• Article 33, §12-7(a) of the Maryland Code (state convention nomination of presidential electors)
• Article 33, §10-1 of the Maryland Code (party conventions and selection of presidential electors)

Cases:

• Mathers v. Morris, 515 F. Supp. 931 (D.Md.), aff'd, 649 F.2d 280 (4th Cir. 1981) (a new party's nominee may not appear on the general election ballot without complying with the petition provisions)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1984/Volume69_1984.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ELECTIONS

Presidential Candidates-Political Parties-Nominations-The Presidential Nominee Of The National Convention Of A New Political Party May Appear On The General Election Ballot Without Having First Filed Nominating Petitions.

January 6, 1984

Mr. Williard A. Morris, Administrator
State Administrative Board of Election Laws

You have requested our opinion as to the requirements that the presidential nominee of a new political party must meet to appear on the ballot in the general election. Specifically, you ask whether the nominee of the national convention of such a party is required, as a prerequisite to participation in the general election, to file nominating petitions under Article 33, §7-1 of the Maryland Code.

For the reasons stated below, we conclude that the presidential nominee of the national convention of any "political party", within the meaning of Article 33, §1-1(a)(15), is entitled to appear on the general election ballot without having first filed nominating petitions pursuant to Article 33, §7-1. This conclusion accords with that reached in 57 Opinions of the Attorney General 210 (1972).

I
Candidates of New Political Parties

Under Article 33, §4B-1, a political party is formed in the State by the filing of petitions bearing the signatures of at least 10,000 qualified voters and by meeting various procedural requirements. If 10% or more of the registered voters in the State become affiliated with the new political party, it must "nominate all its candidates for public office" in primary elections. Article 33, §5-1(a).1 If less than 10% of the registered voters affiliate with the new party, it selects its nominees as follows:

"[T]he nominees for public office of the party shall be selected in the manner provided in the interim constitution and bylaws of the party, but no such nominee shall appear upon the ballot at any general election unless the nominee has complied with all the requirements of the provisions of the subtitle 'Nomination by Petition' of this article, including the filing of petitions ... which shall bear in addition to the name of the nominee, the name of the party, signed by not less than three percent (3%) of the registered voters who are eligible to vote for the office for which electon at the general election is sought." Article 33 §4B-1(h).

See also Article 33, §4-1(a).

Thus, in general, "the [newly formed] party's nominee may not appear upon the ballot in a general election unless the nominee complies with the [petition] provisions of Article 33, §7". 62 Opinions of the Attorney General 411, 413 (1977). See also Mathers v. Morris, 515 F. Supp. 931 (D.Md.), aff'd, 649 F.2d 280 (4th Cir. 1981).

II
Presidential Candidates

The issue that you pose is whether this ballot access requirement, which undoubtedly applies to all of the new party's candidates for statewide and local office, also applies to its candidates for President (and, of course, Vice President). Because the Election Code contains provisions that recognize the unique method by which presidential candidates are nominated, we believe that the general requirement for nomination by petition of candidates of newly formed parties does not apply in this instance.

In 57 Opinions of the Attorney General 210 (1972), this office addressed the question of whether the presidential nominee of the American Party of Maryland was entitled to have his name placed on the ballot, despite the fact that he had not submitted nominating petitions. The American Party was a "political party", within the meaning of Article 33, §1-1(a)(15), because its candidates had polled more than the requisite vote (then, 1%, now 3%) in the preceding general election. However, the American Party was not required to hold primary elections to nominate its candidates. Therefore, the issue was whether its presidential nominee was required to file nominating petitions.

The Opinion concluded that the name of the presidential candidate was entitled to a place on the general election ballot even though the nominating petition procedure had not been followed. The gist of the Opinion's reasoning is that the Election Code recognizes the unique procedures by which presidential candidates are nominated, that is, in national conventions. Maryland voters affiliated with the various parties are represented at these conventions, but, unlike all other offices, the voters do not directly select the nominees. Indeed, in the case of parties that hold presidential primaries, the Election Code specifically recognizes that these primaries, unlike all others, do not necessarily determine who will represent the parties on the general election ballot:

"No person who has been defeated for the nomination for any office in a primary election . . . shall have his name printed on the ballot at the succeeding general election as a candidate for any office. Nothing in this subsection shall be interpreted as being applicable to candidates for nomination of their party for President of the United States who have been defeated in a Presidential preference primary election." Article 33, §8-2(a).

The Code contains the following provision regarding the national conventions of parties other than the Democratic and Republican parties:

"In the case of a political party which is not entitled to nominate candidates for public office by means of primary elections, this subtitle shall not apply and in lieu thereof delegates and alternate delegates to represent the political party at its national convention shall be elected at a party convention in accordance with the lawful rules and practices of the party." Article 33, §12-5.2

In addition, under Article 33, §12-7(a), "the state convention of any party shall nominate or provide for the nomination of candidates for presidential electors of the party in such manner as the convention determines". Moreover, "any party may elect and hold a party meeting or convention", one purpose of which is the selection of presidential electors. Article 33, §10-1.

The 1972 Opinion summarized the import of these provisions as follows:

"Since Subtitle 12 of Article 33 regulates presidential primaries and conventions, i.e., the state's participation in the nominating procedures for President and Vice President, and since the purpose of national party conventions is to nominate party candidates for President and Vice President, it is our opinion that all political parties recognized as such under Article 33 have an equal right to have their nominees for President and Vice President on the Maryland ballot by complying with the relevant provisions of Article 33 of the Annotated Code of Maryland." 57 Opinions of the Attorney General at 214.

In our view, subsequent changes in the Election Code do not reflect an intention by the General Assembly to change this result.

Moreover, this conclusion is as applicable to a newly created political party as to one that has maintained its party status from one election to the next, i.e., the party involved in the 1972 Opinion. The Election Code's definition of "political party", §1-1(a)(15), includes both, and the provisions that describe the presidential nominating procedures of such parties do not differentiate between the two defined criteria of "political party" status.

III
Conclusion

In summary, the unique status of presidential nominating procedures is recognized in the Election Code and must be given effect, notwithstanding that all other candidates for office of newly formed political parties may attain ballot status only by filing nominating petitions. Thus, it is our opinion that if a party (i) fully complies with the requirements for new party formation in §4B-1 of the Code and (ii) thereafter selects its presidential and vice presidential nominees at a national convention, those properly certified nominees should be placed on the general election ballot in Maryland.

Stephen H. Sachs, Attorney General

Jack Schwartz
Assistant Attorney General

Avery Aisenstark
Chief Counsel,
Opinions and Advice

Editor's Note: The preceding Opinion was originally written as a letter of advice. Because the issue it discusses is a recurring one, it is published here in a slightly revised format.

1 To our knowledge, no political party formed under Article 33, §4B-1 has ever achieved this degree of voter affiliation.

2 At the time of the 1972 Opinion, this provision was Article 33, §12-1(c). The substance, however, was essentially the same.