If a Maryland legislator switches political parties and then resigns, which party's central committee picks their replacement?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General a hypothetical with real stakes: if a Delegate elected as a Democrat later switched to the Republican Party and then resigned, which party's central committee had the right to submit a replacement's name to the Governor, the party the Delegate ran under, or the party the Delegate belonged to at the moment of resignation? Under Article III, §13(a) of the Maryland Constitution, the Governor was required to appoint whomever the correct central committee submitted within 30 days.

The Attorney General concluded it was the central committee of the party the Delegate was affiliated with at election time, not the party held at resignation. The opinion leaned heavily on a 1984 letter of advice addressing the identical ambiguity in the parallel statute governing county commissioner vacancies, Article 25, §16, which reasoned that the constitutional and statutory language reflected a legislative presumption that an elected official stays affiliated with one party for their whole term, and that letting the party the voters actually elected the official under choose the successor better honored "the will of the people freely expressed at the ballot box." A later editor's note records that the General Assembly settled the question definitively in 1986 by amending Article III, §13(a) to state explicitly that a successor must match the vacating member's party "at the time of the last election," confirming this opinion's reading.

Currency note

This opinion was issued in 1985. 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. As the editor's note to the original opinion records, Article III, §13(a) was amended in 1986 (Chapter 649, Laws of Maryland 1986) to make explicit the rule this opinion had already reached by interpretation.

Common questions

If a Maryland legislator switches parties and then resigns, does their old party or their new party pick the replacement?
Under this opinion, the old party, the one the legislator was affiliated with at the time of election. The Attorney General concluded that Article III, §13(a) authorized the central committee of the party the vacating member was affiliated with "at his or her election," not at resignation, to submit the successor's name to the Governor.

Why did the Attorney General think the party at election, rather than at resignation, should choose the successor?
The opinion reasoned that laws governing elective office should be construed to carry out the will of the electorate, and that voters had chosen the departing legislator under a particular party banner, so letting that original party's local officials pick a replacement better reflected the voters' choice than letting whatever party the legislator happened to belong to at resignation make the call.

Did the General Assembly ever settle this question by statute instead of leaving it to an Attorney General opinion?
Yes. According to the editor's note attached to this opinion, the General Assembly amended Article III, §13(a) in 1986 to expressly require that a successor be of the same party as the vacating Delegate or Senator "at the time of the last election," codifying the same rule this opinion had already reached through interpretation.

Background and statutory framework

Article III, §13(a) of the Maryland Constitution required the Governor, upon a legislative vacancy from death, resignation, or similar cause, to appoint within 15 days whomever the central committee of the vacating member's political party submitted in writing within 30 days, provided the appointee shared "the same political party as the person whose office is to be filled." The opinion found this language ambiguous when a member had switched parties before resigning, since one phrase looked to past affiliation ("has been affiliated") while another looked to matching the vacated office's party at the time of filling it.

To resolve the ambiguity, the opinion adopted the reasoning of a 1984 letter of advice interpreting the nearly identical language in Article 25, §16 governing county commissioner vacancies, added by Chapter 18, Laws of Maryland 1951. That letter applied the interpretive principle from Smith v. Higinbothom, 187 Md. 115, 125 (1946), of choosing the construction that "harmonize[s] with the general scheme of the statute," and the election-law principle from Wilkinson v. McGill, 192 Md. 387, 393 (1949), that election disputes should be resolved to uphold "the will of the people freely expressed at the ballot box," along with a persuasive quote from the Illinois Supreme Court's People ex rel. Rudman v. Rini, 356 N.E.2d 4, 7 (Ill. 1976), that "it is not the political party but the People that have the real interest in the vacant office." The letter also traced the history of Article 25, §16 back to a 1935 constitutional change, Chapter 584, Laws of Maryland 1935, that shifted General Assembly vacancy-filling from costly special elections to central committee appointment, as a middle ground preserving some indirect voter accountability. Reading both provisions as presuming an official remains affiliated with one party throughout their term, the opinion concluded the central committee at the time of election, not resignation, held the appointment authority.

Citations

Statutes:

• Article III, §13(a) of the Maryland Constitution (filling General Assembly vacancies)
• Article 25, §16 of the Maryland Code (filling county commissioner vacancies, parallel provision)
• Chapter 18, Laws of Maryland 1951 (added the central-committee language to Article 25, §16)
• Chapter 584, Laws of Maryland 1935 (shifted General Assembly vacancy filling from special election to central committee appointment)

Cases:

• Smith v. Higinbothom, 187 Md. 115, 125 (1946)
• Wilkinson v. McGill, 192 Md. 387, 393 (1949)
• People ex rel. Rudman v. Rini, 356 N.E.2d 4, 7 (Ill. 1976)

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/1985/Volume70_1985.pdf

Original opinion text

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

General Assembly—Constitutional Law—Vacancy-Successor to Resigned Member who Changed Political Parties to be Named by Central Committee of Political Party with which Member was Affiliated at Election.

December 31, 1985

The Honorable Gary Alexander
Maryland House of Delegates

You have requested our opinion about the procedures to be followed in the event that a member of the General Assembly who has changed party affiliation were to resign from office. Specifically, you ask whether the central committee of the political party with which the member was affiliated at the time of his or her election would submit the name of the successor to the Governor, or whether that responsibility lies with the central committee of the political party with which the member was affiliated at the time of resignation. Although the particular example cited in your letter involves a Delegate elected as a Democrat who changed his party affiliation to Republican, the analysis is the same no matter what the particular party identifications may be.

For the reasons stated below, we conclude that the central committee of the political party with which the vacating member was affiliated at the time of his or her election is authorized by Article III, §13(a) of the Maryland Constitution to submit the name of the successor to the Governor, who is obliged to appoint that person to the vacancy. Thus, in your example, the Democratic Central Committee for Prince George's County would submit to the Governor the name of the person who would fill the vacancy should a Delegate, who was elected as a Democrat but has changed party affiliation to Republican, resign from the House of Delegates.

I
Discussion

Article III, §13(a) of the Maryland Constitution provides, in pertinent part, as follows:

"In the case of death, disqualification, resignation, refusal to act, expulsion, or removal from the county or city for which he shall have been elected, of any person who shall have been chosen as a Delegate or Senator,... the Governor shall appoint a person to fill such vacancy from a person whose name shall be submitted to him in writing, within 30 days after the occurrence of the vacancy, by the Central Committee of the political party with which the Delegate or Senator, so vacating, had been affiliated in the County or District from which he or she was elected, provided that the appointee shall be of the same political party as the person whose office is to be filled; and it shall be the duty of the governor to make said appointment within 15 days after the submission thereof to him."

Various interpretative issues regarding Article III, §13(a) have been addressed by this office in the past. See, e.g., 62 Opinions of the Attorney General 241 (1977); 62 Opinions of the Attorney General 442 (1977); 60 Opinions of the Attorney General 306 (1975). However, the particular issue that you raise has never been addressed in an opinion.

Nevertheless, a recent letter of advice addressed an analogous issue: When a county commissioner who has changed party affiliation resigns, which central committee submits the successor's name to the Governor under Article 25, §16 of the Maryland Code? This letter of advice, which is attached, concluded that the central committee of the political party with which the vacating commissioner was affiliated at the time of his election is authorized by Article 25, §16 to submit the name to the Governor. Letter of Advice from Jack Schwartz, Assistant Attorney General, to Carol S. Evans, Deputy Administrator, State Administrative Board of Election Laws (September 6, 1984).

In discussing Article 25, §16, the letter of advice pointed out that the statutory language in question paralleled that of Article III, §13(a). The pertinent language in both provisions is ambiguous. Thus, the letter sought to "identify the construction that 'harmonize[s] with the general scheme of the statute and assist[s] in carrying out the legislative purpose'. Smith v. Higinbothom, 187 Md. 115, 125 (1946)." The letter then summarized the underlying purpose as follows:

"In general, laws relating to elective office ought to be construed so that the will of the electorate is carried out. See generally, e.g., Wilkinson v. McGill, 192 Md. 387, 393 (1949) (determinative principle in resolving election contest based on errors of election officials is to uphold 'the will of the people freely expressed at the ballot box'). Indeed, as one court observed in construing the statute that gave political parties the power to fill vacancies, '[i]t is not the political party but the People that have the real interest in the vacant office, and the method of selection should reflect their choice as well as possible'. People ex rel. Rudman v. Rini, 356 N.E.2d 4, 7 (Ill. 1976).

The will of the people is, of course, reflected in the election of county commissioners who present themselves to the voters under the banner of one of the political parties. We can safely assume that a candidate's party affiliation does play a role in voters' decisionmaking. Hence, it is reasonable to regard the mechanism for filling a vacancy set out in Article 25, §16 as an effort to give at least an indirect voice in the selection of the commissioner's successor to the electorate, through the political party officials elected in the same primary in which the vacating commissioner was nominated.

In my view, the ambiguity presented by Article 25, §16 when it is applied in this novel situation ought to be resolved by regarding the vacating commissioner's political party at the time of his election as 'the political party with which the county commissioner, so vacating, has been affiliated'. This construction is consonant with the presumption of continuous party affiliation evidently underlying the General Assembly's choice of language. That is, resolving the ambiguity, we should give as much effect as possible to the General Assembly's underlying presumption by applying the law as if the vacating commissioner were still affiliated with 'the political party with which the... commissioner... has been affiliated'. Moreover, this construction assists in carrying out what is apparently the overall purpose of the appointment process in Article 25, §16, to vest the decision in those who are perceived as best able to carry forward the political judgment of the voters." (Emphasis in original.)

II
Conclusion

We agree with the reasoning in this letter of advice, and we conclude that it is equally applicable to the procedures for filling a General Assembly vacancy set out in Article III, §13(a) of the Constitution. Thus, it is our opinion that, when a vacancy occurs, the central committee of the political party with which the vacating member was affiliated at his or her election is authorized to submit the name of a successor to the Governor, even if the vacating member has changed political party affiliation since the election.

Stephen H. Sachs, Attorney General
Jack Schwartz, Chief Counsel
Opinions and Advice

Editor's Note: Since the issuance of this opinion, Article III, §13(a) of the Constitution has been amended to make explicit that the successor to a vacating member of the General Assembly "shall be of the same political party... as was that of the Delegate or Senator, whose office is to be filled, at the time of the last election or appointment of the vacating Delegate or Senator...." Chapter 649, Laws of Maryland 1986 (ratified November 4, 1986).

APPENDIX

September 6, 1984

Ms. Carol S. Evans
Deputy Administrator
State Administrative Board
of Election Laws
Post Office Box 231
Annapolis, Maryland 21404

Dear Carol:

This responds to your request for my advice of counsel concerning the proper interpretation of Article 25, §16 of the Maryland Code. You report the following situation: In Cecil County, a vacancy will shortly exist in an office of county commissioner. The commissioner who will vacate the office apparently intends to change his party affiliation before he does so. That is, he will become affiliated with a political party other than the one with which he was affiliated at the time of his election to the office.

Article 25, §16 provides the following procedure for the filling of a vacancy in the office of county commissioner:

"In case any office of county commissioner shall become vacant in any county by death, resignation or otherwise, the Governor, if such vacancy shall occur during the session of the Senate, shall, by and with the advice and consent of the Senate, appoint, and if such vacancy shall occur during the recess of the Senate, he shall appoint a proper person or proper persons to fill such vacancy or vacancies, and the nomination of the person or persons thus appointed during such recess, or of some other person in his or their place, shall be made to the Senate within thirty days after the next meeting of the legislature. The governor shall nominate or appoint the person to fill such vacancy whose name shall be submitted to him in writing by the central committee of the political party with which the county commissioner, so vacating, has been affiliated in the particular county, provided that the nominee or appointee shall be of the same political party as the person whose office is to be filled; and it shall be the duty of the Governor to make said nomination or appointment within fifteen days after the submission thereof to him. In the event there is no central committee in the county in which the vacancy occurs, the Governor shall appoint to fill the vacancy a person who has all the qualifications required for the office of county commissioner in the particular county."

You ask whether "the central committee of the political party with which the county commissioner, so vacating, has been affiliated in the particular county" is the central committee of the party with which the commissioner was affiliated at the time of his election; or, on the other hand, whether it is the central committee of the party with which the commissioner is affiliated at the time of his resignation. In my view, it is the former.

I can find no precedent that directly bears on this problem. The pertinent language was added to Article 25 in 1951 [Chapter 18, Laws of Maryland 1951], but it has not been construed in any case or opinion. The virtually identical provision in Article III, §13(a) of the Maryland Constitution, applicable to General Assembly vacancies, and seemingly the model for the statutory provision for county commissioner vacancies, has likewise never, to my knowledge, been applied in the context of a change of parties by the vacating member.

Nor is your question clearly answered by the text of the provision. The language is ambiguous: The phrase "the political party with which the... commissioner... has been affiliated" apparently speaks to past affiliation, i.e., the party with which the commissioner "has been" affiliated from the time of his election. But the phrase "the... appointee shall be of the same political party as the person whose office is to be filled" suggests that affiliation at the time of the vacancy is critical. In this situation, one must try to identify the construction that "harmonize[s] with the general scheme of the statute and assist[s] in carrying out the legislative purpose." Smith v. Higinbothom, 187 Md. 115, 125 (1946).

In general, laws relating to elective office ought to be construed so that the will of the electorate is carried out. See generally, e.g., Wilkinson v. McGill, 192 Md. 387, 393 (1949) (determinative principle in resolving election contest based on errors of election officials is to uphold "the will of the people freely expressed at the ballot box"). Indeed, as one court observed in construing a statute that gave political parties the power to fill vacancies, "[i]t is not the political party but the People that have the real interest in the vacant office, and the method of selection should reflect their choice as well as possible". People ex rel. Rudman v. Rini, 356 N.E.2d 4, 7 (Ill. 1976).1

The will of the people is, of course, reflected in the election of county commissioners who present themselves to the voters under the banner of one of the political parties. We can safely assume that a candidate's party affiliation does play a role in voters' decisionmaking. Hence, it is reasonable to regard the mechanism for filling a vacancy set out in Article 25, §16 as an effort to give at least an indirect voice in the selection of the commissioner's successor to the electorate, through the political party officials elected in the same primary in which the vacating commissioner was nominated.

The history of the provision affords at least some support for this reading. Until the 1951 amendment, the power to fill county commissioner vacancies was vested entirely in the Governor (subject only to Senate confirmation). The Governor was authorized simply to "appoint a proper person." Thus, a Governor of a political party different from that of the vacating commissioner was free to appoint a successor who was of the Governor's party, notwithstanding the expressed choice of the county electorate.

If this possibility were thought to be a problem, the obvious solution would have been statutory language requiring the Governor to appoint a successor from the vacating commissioner's own party. And, indeed, the General Assembly added such language: "provided that the nominee or appointee shall be of the same political party as the person whose office is to be filled."

But the General Assembly went further, by effectively transferring the appointment authority from the Governor to the central committee of the vacating commissioner's party. Cf. 62 Opinions of the Attorney General 241 (1977) (under analogous procedure in Article III, §13(a) of the Maryland Constitution, Governor "must appoint" to the vacancy a person submitted by the central committee). Presumably, the General Assembly believed that these locally elected party officials were better able to discern and reflect the views of the electorate than the governor.2

There is no indication in the history of Article 25, §16 (or of Article III, §13(a)) that the General Assembly contemplated the highly unusual problem of an incumbent who, prior to vacating office, changes political parties. To the contrary, the reference to "the political party with which the county commissioner, so vacating, has been affiliated" suggests the General Assembly's presumption, well-grounded in experience, that an elected official remains affiliated with but one party during his or her entire tenure.

In my view, the ambiguity presented by Article 25, §16 when it is applied in this novel situation ought to be resolved by regarding the vacating commissioner's political party at the time of his election as "the political party with which the county commissioner, so vacating, has been affiliated". This construction is consonant with the presumption of continuous party affiliation evidently underlying the General Assembly's choice of language. That is, in resolving the ambiguity, we should give as much effect as possible to the General Assembly's underlying presumption by applying the law as if the vacating commissioner were still affiliated with "the political party with which the... commissioner... has been affiliated". Moreover, this construction assists in carrying out what is apparently the overall purpose of the appointment process in Article 25, §16, to vest the decision in those who are perceived as best able to carry forward the political judgment of the voters.

I hope that this letter of advice, although not an Opinion of the Attorney General, is fully responsive to your inquiry.

Please let me know if I may be of further assistance.

Very truly yours,
Jack Schwartz
Assistant Attorney General

1 In Rini, an Illinois statute authorized "the political party of which the [vacated] incumbent was a candidate at the time of his election" to appoint a member of that party to the vacancy. 356 N.E.2d at 5. The Illinois Supreme Court held that the statute was an unconstitutional delegation of state sovereignty to a private group. 356 N.E.2d at 7. But, given the presumption of constitutionality that attaches to statutes, and given possibly significant differences between Illinois and Maryland law, I do not believe it appropriate to question the constitutionality of Article 25, §16.

2 The best way to determine the will of the voters would be by special election, but that is a very costly process. Article III, §13 of the Maryland Constitution formerly provided for special elections to fill General Assembly vacancies. The expense thereby incurred presumably led to the amendment that effectively vests appointment power in the party central committees. Chapter 584, Laws of Maryland 1935 (ratified November 3, 1936). In short, the appointment process in Article III, §13(a), and in Article 25, §16, represents a kind of compromise as to direct political responsiveness between elections, on the one hand, and appointment by the Governor, on the other.