Does Maryland's legislature have to hold a joint session to elect the State Treasurer?

Plain-English summary

In January 1987, the co-chairmen of the Joint Legislative Committee on the Selection of the State Treasurer asked the Attorney General to resolve five procedural questions before the General Assembly appointed a new Treasurer that session. The Maryland Constitution said the Treasurer was chosen "on joint ballot of the two Houses," a phrase dating back to the Constitution of 1851, but the Committee wanted to know whether that required a joint session, whether the "one-person, one-vote" principle from federal redistricting cases applied given senators and delegates represent the same population in unequal numbers, what vote count elected a nominee, whether the ballot could be secret, and when during the session the vote had to happen.

The Attorney General concluded that "joint ballot" required combining the votes of every Delegate and Senator into a single tally, a practice traceable through 19th-century legislative journals, but that the two Houses could satisfy this either by casting ballots separately and combining the count (the traditional method) or by meeting in joint session (the practice since 1963); either method was constitutionally valid. The opinion concluded the one-person, one-vote doctrine from Baker v. Carr and Reynolds v. Sims did not apply because the Treasurer was appointed, not popularly elected, and Maryland's legislative districts were already properly apportioned. It concluded a simple majority of votes cast, not the "constitutional majority" required for ordinary legislation, elected the Treasurer, that the vote could be conducted by secret ballot based on the historical meaning of "ballot," and that the appointment had to occur sometime during the first regular session of the Governor's term but the General Assembly could choose exactly when.

Currency note

This opinion was issued in 1987. 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 the Maryland Senate and House of Delegates have to meet together to elect the State Treasurer?
According to this 1987 opinion, no. The Attorney General concluded the constitutional requirement of a "joint ballot" meant the votes of both chambers had to be combined into one tally, which could be accomplished either by each chamber balloting separately and then combining the count, or by the two chambers meeting in joint session, a practice the General Assembly had followed since 1963.

Did the federal one-person, one-vote rule apply to the legislature's vote for Treasurer?
The opinion concluded no, because the one-person, one-vote doctrine from Baker v. Carr governs how legislative districts are apportioned for popular elections, not how an already properly apportioned legislature votes to appoint an official like the Treasurer, a conclusion the opinion drew from Fortson v. Morris.

Could the Maryland legislature vote for Treasurer by secret ballot?
Yes, according to this opinion. The Attorney General concluded that the word "ballot" historically implied secrecy and that 19th-century legislative practice treated the vote as secret, though the opinion also noted the General Assembly had discretion to choose a more open voting procedure given its 20th-century practice of recording individual votes.

Background and statutory framework

Article VI, §1 of the Maryland Constitution required the Treasurer to be appointed "on joint ballot of the two Houses of the Legislature at each regular session in which begins the term of the Governor," language the opinion traced back to a similar "joint ballot" procedure for electing the Governor in the Constitution of 1776, and specifically to the Treasurer in the Constitution of 1851. The opinion reviewed legislative journals from 1852 through 1983 and found that, regardless of whether the chambers balloted separately or met jointly, the result was always a single combined tally of individual legislators' votes, which it treated as the controlling, deferential construction of the constitutional text.

On the required vote count, the opinion relied on an earlier Attorney General opinion analyzing the parallel "joint majority" language used for electing the Governor under Article II, §4, concluding by analogy that a simple majority, not the "constitutional majority" that Article III, §28 required for ordinary legislation, elected the Treasurer, a reading the opinion found confirmed by an 1870 legislative journal entry declaring "no election" after a plurality vote. On secrecy, the opinion reasoned from the historical meaning of "ballot" and from Article II, §4's contrasting requirement that the Governor be elected "viva voce," concluding the General Assembly could choose either a secret or an open procedure for the Treasurer's vote.

Citations

Statutes:

• Article VI, §1 of the Maryland Constitution (joint ballot appointment of the Treasurer)
• Article III, §28 of the Maryland Constitution (constitutional majority required to pass a bill or resolution)
• Article III, §22 of the Maryland Constitution (recording yeas and nays on a "question")
• Article III, §19 of the Maryland Constitution (each House determines the rules of its own proceedings)
• Article II, §4 of the Maryland Constitution (joint majority and viva voce vote for Governor and Lieutenant Governor)
• §§10-501 through 10-510 of the State Government Article (Open Meetings Law)

Cases:

• State v. Shaw, 9 S.C. 94 (1878)
• Thomson v. Robb, 328 S.E.2d 136, 140 (Va. 1985)
• Baker v. Carr, 369 U.S. 186 (1962)
• Reynolds v. Sims, 377 U.S. 533, 562 (1964)
• In re Legislative Redistricting, 299 Md. 658 (1982)
• Fortson v. Morris, 385 U.S. 231 (1966)
• Murdoch v. Strange, 99 Md. 89, 110-11 (1904)
• Opinion of the Justices, 278 A.2d 475, 477 (N.H. 1971)
• Smith & Son, Inc. v. Town of Hartford, 196 A. 281, 283 (Vt. 1938)
• Norris v. Baltimore, 172 Md. 667, 677-78 (1937)
• Clauss v. Board of Educ., 181 Md. 513, 523 (1943)
• Archer v. State, 74 Md. 410 (1891)

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/1987/Volume72_1987.pdf

Original opinion text

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

GENERAL ASSEMBLY

State Treasurer—"Joint Ballot"—Voting Procedures.

January 19, 1987

The Honorable John Arnick
The Honorable Clarence W. Blount
Co-Chairmen, Joint Legislative Committee on the Selection of the State Treasurer

By oral request on January 16, 1987, you sought our opinion on several questions relating to the appointment of the State Treasurer by the General Assembly. Specifically, you posed the following questions:

1. May the House of Delegates and the Senate conduct separate balloting for the State Treasurer, or are the two Houses required to appoint the Treasurer at a joint session?

2. Does the "one-person, one-vote" principle of federal equal protection doctrine affect the voting procedure of the General Assembly?

3. What number of votes is sufficient for a nominee for Treasurer to be appointed?

4. May the vote be conducted by secret ballot?

5. Is the General Assembly required to appoint the Treasurer by some particular time?

For the reasons stated below, we conclude as follows:

1. Article VI, §1 of the Maryland Constitution requires that the State Treasurer be appointed on the basis of a single tally in which each Delegate and Senator casts one vote. Historically, the mode of procedure was for each House to cast its ballots separately, in its own chamber, and thereafter for the votes to be combined into a single tally. However, we believe that the two Houses may also follow the more recent practice of meeting in joint session to cast their votes.

2. The "one-person, one-vote" principle does not affect the method of the Treasurer's appointment prescribed in Article VI, §1.

3. A nominee for Treasurer is appointed if he or she receives a majority, i.e., 50 percent plus 1, of the votes cast, assuming the presence of a quorum. A constitutional majority is not required.

4. The General Assembly may vote by secret ballot.

5. Article VI, §1 requires that the Treasurer be appointed at some time during the first regular session of the General Assembly in the Governor's term. Hence, the Treasurer should be selected during the 1987 Regular Session. However, the General Assembly is free to act at such time as it chooses during that session.

I
"Joint Ballot" for Treasurer

A. Constitutional Provision

Article VI, §1 provides that the Treasurer is "to be appointed on joint ballot of the two Houses of the Legislature at each regular session in which begins the term of the Governor. ..." Once appointed, the Treasurer serves a term of four years, until his or her successor shall qualify.

B. Constitutional History

The first reference to selection of an official by "joint ballot" is in the Constitution of 1776. Section 25 of that constitution provided as follows regarding the selection of the Governor:

"That a person of wisdom, experience and virtue, shall be chosen governor ... by the joint ballot of both houses [of the Legislature], to be taken in each house respectively, deposited in a conference room, the boxes to be examined by a joint committee of both houses, and the numbers severally reported, that the appointment may be entered; which mode of taking the joint ballot of both houses shall be adopted in all cases."

The same procedure was prescribed for the election of the council to the Governor and delegates to Congress. See §§26 and 27.

This procedure had two key features. First, as the term "joint ballot" suggests, the votes of the members of the two Houses were combined to determine the winner.1 Second, the method of voting by ballot assured the secrecy of the vote. By contrast, the election of certain other officials was by voice vote. See §§2 and 14.

The provision for the appointment of the Treasurer by "joint ballot" was first enacted in the Constitution of 1851. Although the report of the debates discloses no discussion of this method, a proposal to appoint the Treasurer "by a concurrent vote of both branches of the Legislature" failed in committee.2

The same "joint ballot" procedure was adopted in the Constitution of 1864. During the consideration of that constitution, one member of the convention moved "to amend that portion of [the] section relating to the election of the treasurer by the two houses of the general assembly, by striking out the words 'on joint ballot,' and inserting the words 'by the concurrent vote of the two houses of the general assembly.'" 2 Debates of the Constitutional Convention of the State of Maryland 1258 (1864). He proposed this amendment out of a fear that the large delegation from Baltimore City could wield "a sufficient vote to control any election at any time." Id. at 1259. Under his proposal for "a concurrent vote of the two houses, each section of the State will have an opportunity to be heard." Id. However, his amendment was soundly rejected, 46 to 12, and the "joint ballot" procedure for selecting the Treasurer was retained.

The Constitution of 1867 likewise retained the same selection procedure. As reported by the drafting committee: "There shall be a Treasury Department consisting of a Comptroller . . . and a Treasurer to be appointed by the members of the Legislature at each regular session thereof, on joint ballot. ..." Proceedings of the State Convention of Maryland, To Frame a New Constitution 86 (1867). There was no debate about this provision.

C. Construction by the General Assembly

The actual administration of this selection procedure by the General Assembly reflects a construction of the constitutional provision to which great deference is owed. To ascertain that actual practice, we have examined the journal records of each appointment of a Treasurer. Although the practice has evolved somewhat over the years, one salient fact stands out: Without exception, the selection process involved a combining of the votes of the members of the House and the Senate, with each member casting a single vote.

The early procedure entailed separate nomination of candidates by the two Houses and separate, and evidently secret, collection of ballots. Then, tellers from the two Houses conducted a joint tabulation of the votes to arrive at a result. For example:

"The House then proceeded to ballot for a Treasurer of the State, and the ballots having been collected in the ballot-box for that purpose provided, and upon the call of the roll, it appearing that sixty-four votes on the part of the House had been cast, the ballot-box was sealed, and delivered by the Speaker to . . . Tellers on the part of the House, to join the gentlemen on the part of the Senate, who proceeded to the Senate Chamber, there to count the ballots.

After some time spent therein, [the Tellers] returned and reported that the Tellers on the part of the Senate and House had counted the ballots cast for a Treasurer of the State, that there were 84 ballots, that of that number, James S. Owens, had 59 votes, Dennis Claude, had 24 votes, and there was one blank ballot.

Whereupon, the Speaker declared that James S. Owens had been duly elected Treasurer of the State, according to the constitution and laws thereof." 1852 H. Jour. at 102.

This procedure was followed throughout the 19th Century.

In 1916, the two Houses agreed to a procedure under which the votes of the individual members would be announced in their respective chambers:

"Each member, in his respective chamber, as his name is called by the Reading Clerk thereof, will advance and hand his ballot to one of the tellers, who shall exhibit it to the other, who shall announce the same; and the Clerk shall make a record thereof. After the ballots shall have been cast they shall be counted by the tellers and the result compared with the result ascertained by the clerk. The tellers appointed by the Senate and by the House of Delegates, respectively, after the vote has been cast, shall meet together, canvass all the returns, and immediately report the same to their respective bodies." 1916 H. Jour. at 71; 1916 S. Jour. at 75.

As in prior years, each House nominated the candidates of its choice but, for the first time, the members supporting each candidate were identified in the Journal. See, e.g., 1916 H. Jour. at 72; 1916 S. Jour. at 84.3

In 1963, the two Houses met in joint session for the first time to select the Treasurer. As in elections of the Treasurer dating back to 1916, the agreed procedures included announcement of the votes as they were cast in the joint session. 1963 H. Jour. at 38-39; 1963 S. Jour. at 21-22. This method of election, a tallying of the votes cast in joint session, has been followed through 1983.

D. Conclusion

In light of the language used in Article VI, §1 of the Constitution, the history of the provision, and the actual practice of the General Assembly, we have no doubt whatever that the State Treasurer is to be appointed by means of a tally of the votes of all of the members of the General Assembly, with each member casting a single vote. Concurrent voting by the two Houses separately would be inconsistent with the plain language and, indeed, was rejected by the framers. See State v. Shaw, 9 S.C. 94 (1878). Cf. Thomson v. Robb, 328 S.E.2d 136, 140 (Va. 1985).

In our view, as long as the selection is accomplished by a tally of combined votes, the General Assembly is free to determine the exact procedure, i.e., whether to collect the votes in separate chambers and then tally them together, as was done for over a century; or to assemble in joint session for the vote, as has been done since 1963. The phrase "joint ballot" surely permits the latter, albeit recently-adopted, procedure. See Black's Law Dictionary 131 (5th ed. 1979).4 Cf. 53 Opinions of the Attorney General 267, 285 (1968) (in light of its history and application, phrase "joint majority" in Article II, §4 requires a joint session of the House and Senate). See also 53 Opinions of the Attorney General 292, 299 (1968) (joint session to elect Treasurer established "by custom and usage alone").

II
"One-Person, One-Vote"

Your question about the possible applicability of the equal protection principle recognized in the landmark case of Baker v. Carr, 369 U.S. 186 (1962), presumably stems from the simple arithmetical fact that, in a combined tally of the votes of the members of the House and the Senate, Senators are at a disadvantage. Even though each Senator and Delegate represents the same population, for every senatorial vote, there will be three delegate votes.

However, the one-person, one-vote principle of Baker v. Carr and its progeny has no bearing on this legislative election procedure. The one-person, one-vote doctrine assures that legislative bodies are apportioned so that no citizen's right to vote is effectively diluted. Reynolds v. Sims, 377 U.S. 533, 562 (1964). The apportionment of the Maryland General Assembly comports with this requirement. See In re Legislative Redistricting, 299 Md. 658 (1982). Hence, every citizen in this State will be equally represented in the vote for Treasurer.

In any event, the doctrine has been held by the Supreme Court to be inapplicable to a state's selection of an official through the joint vote of its legislature. Fortson v. Morris, 385 U.S. 231 (1966). As one treatise has summarized the point:

"The state can choose to appoint members to an official position rather than elect them. If there is no popular election, the one-person, one-vote rule does not apply." 2 Rotunda, Nowak, & Young, Treatise on Constitutional Law §18.36, at 658 (1986).

III
Required Majority

You inquire as to the degree of support required for a nominee for Treasurer to be appointed. The alternatives are (i) a constitutional majority of 95, i.e., the "majority of the whole number of members elected" that is required by Article III, §28 for the passage of any bill or resolution; (ii) a simple majority of the votes cast; and (iii) a mere plurality, assuming that there are three or more nominees.

In our view, a constitutional majority is not required. This question was fully considered and resolved in the opinion dealing with the election by the General Assembly of a Governor, and we concur with the conclusion set out in 53 Opinions of the Attorney General at 288.5

Likewise, relying on the analysis in that opinion, we conclude that a plurality of votes is insufficient. "We find no support whatever for the proposition that a Governor may be elected by less than a simple majority of those present and actually voting." Id. at 289. Indeed, with respect to the election of the Treasurer, the General Assembly has long construed the requirement in Article VI, §1 to mean a majority, not a plurality. In 1870, there were four nominees. On the first ballot, out of a total vote of 110, the tally was as follows:

Merryman 54
Fowler 31
Vansant 16
Panned 9

The joint committee appointed to count the votes then reported "that neither of the nominees having received a majority of the votes cast, there is therefore no election." 1870 H. Jour. at 82. On a second ballot Merryman received 62 votes, "being a majority of all the votes passed by the two branches of the General Assembly," and was, accordingly, elected. 1870 H. Jour. at 96.6

This construction by the General Assembly of the voting procedure for Treasurer accords with the general rule that a majority of a quorum may act for a body. See, e.g., Murdoch v. Strange, 99 Md. 89, 110-11 (1904). See generally 59 Am. Jur.2d Parliamentary Law §8, at 324 (1971) ("In the absence of an express regulation to the contrary, when a quorum is present a proposition is carried by a majority of the votes cast. . . .").7

IV
Secret Ballot

In our view, the General Assembly unquestionably may conduct its vote for Treasurer by secret ballot.8 The very term "ballot" implies secret voting, particularly in its original sense. See Norris v. Baltimore, 172 Md. 667, 677-78 (1937).9 Indeed, the entire 19th Century practice of the General Assembly under Article VI, §1 reflects the understanding that the "ballot" was a secret one.10

Yet, as discussed in Part I C above, since the early part of this century the General Assembly has introduced greater openness into the selection process by announcing, and, on occasion, entering into its journals, the votes of its individual members. In light of this history, we believe that a court would give deference to the General Assembly's choice in the matter. Hence, we believe that your Committee, in recommending procedures for the selection of the Treasurer, may propose one or the other form of voting.11

V
Time of Appointment

Your final question is whether the General Assembly has discretion to choose the time at which it appoints the Treasurer. The language of Article VI, §1 simply refers to the appointment of the Treasurer "at each regular session in which begins the term of the Governor. ..." Although the appointment has traditionally been made at the start of the session, the precise timing has varied, and we see no legal requirement that the appointment be made at any particular time during that session.12

VI
Conclusion

In summary, it is our opinion that:

1. Article VI, §1 of the Maryland Constitution requires that the State Treasurer be appointed on the basis of a single tally in which each Delegate and Senator casts one vote. Historically, the mode of procedure was for each House to cast its ballots separately, in its own chamber, and thereafter for the votes to be combined into a single tally. However, we believe that the two Houses may also follow the more recent practice of meeting in joint session to cast their votes.

2. The "one-person, one-vote" principle does not affect the method of the Treasurer's appointment prescribed in Article VI, §1.

3. A nominee for Treasurer is appointed if he or she receives a majority, i.e., 50 percent plus 1, of the votes cast, assuming the presence of a quorum. A constitutional majority is not required.

4. The General Assembly may vote by secret ballot.

5. Article VI, §1 requires that the Treasurer be appointed at some time during the first regular session of the General Assembly in the Governor's term. Hence, the Treasurer should be selected during the 1987 Regular Session. However, the General Assembly is free to act at such time as it chooses during that session.

J. Joseph Curran, Jr., Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1 That the votes of the two Houses were to be combined is also suggested by the provision in §25 for the breaking of ties: "But if two or more shall have an equal number of ballots in their favour, by which the choice shall not be determined on the first ballot, then a second ballot shall be taken, which shall be confined to the persons, who on the first ballot shall have had an equal number; and if the ballots should again be equal between two or more persons, then the election of the governor shall be determined by lot, between those who have equal numbers. ..."

2 On December 2, 1850, the committee assigned responsibility for framing the article of the Constitution on the Treasury Department was ordered to "consider the expediency of making constitutional provision for the appointment of the Treasurer of the State by a concurrent vote of both branches of the Legislature." Proceedings of the Maryland State Convention, to Frame a New Constitution 100 (1850). But the committee instead reported a provision calling for the Treasurer "to be appointed by the two houses of the Legislature at each session thereof on joint ballot. ..." Id. at 234.

3 The same procedures, including the vote of each member, are recorded in the journals for the 1918 Session. 1918 H. Jour. at 103-04; 1918 S. Jour. at 63-64. In 1920, the same procedures were agreed upon. The House Journal contains no record of individual votes, but the Senate Journal does. Compare 1920 H. Jour. at 45-46, 50, and 58 with 1920 S. Jour. at 41-42. The practice of recording individual votes in the journals has varied since.

4 Black's defines "joint ballot" as follows: "In parliamentary practice, an election or vote by ballot participated in by the members of both houses of a legislative assembly sitting together as one body, the result being determined by majority of the votes cast by the joint assembly thus constituted, instead of by concurrent majorities of the two houses." (Emphasis added.)

5 That opinion observed: "[T]here are certain basic differences in the procedure for electing a Governor, as opposed to the procedures for passing a bill or resolution. For example, ... in electing a Governor equal weight is given to the vote of every member of each House. Such is not the case when matters are considered separately by each of the Houses since one of the Houses consists of 142 members, and the other of but 43. The framers of the Constitution may very well have decided that their early application of the principle of 'one-man, one-vote' to be followed in electing a Governor made it unnecessary to require a constitutional majority for such an election to be achieved. Whatever the reason of the framers of the Constitution, however, it is obvious that when they intended that a constitutional majority be required, they clearly so stated, as they did in Section 28 of Article III. Since they did not make a similar requirement in the provisions of Section 4 of Article II, we must conclude that only a simple majority is required for the election of a Governor." 53 Opinions of the Attorney General at 288.

6 In 1916, similarly, a nominee who received a plurality, but not a majority, was not elected. See, e.g., 1916 H. Jour. at 73; 1916 S. Jour. at 85. The Senate Journal for this protracted election reflects the tellers' report "that no candidate [had] received a constitutional majority [and therefore] there is no election." 1916 S. Jour. at 85, 91, and 103 (emphasis added). However, the House Journal's report is inconsistent [compare 1916 H. Jour. at 73 with 1916 S. Jour. at 91], and in any event we believe that this passing and probably inadvertent reference does not evidence a considered interpretation of the constitutional provision.

7 For a discussion of the counting of a quorum in a joint session, see 53 Opinions of the Attorney General 292 (1968).

8 Under Article III, §22, "[t]he yeas and nays of members on any question, shall at the call of any five of them in the House of Delegates, or one in the Senate, be entered on the Journal." However, we believe that this provision does not apply to the appointment of the Treasurer: "A question is a motion or proposition presented for action to a legislative body . . . The election of a speaker ... is not a 'question' within the meaning of [the provision of the New Hampshire Constitution that requires "the yeas and nays, upon any question," to be entered in the journal"]. Opinion of the Justices, 278 A.2d 475, 477 (N.H. 1971).

9 As one court has summarized: "An examination of the authorities discloses that from a very early time 'voting by ballot' has been a term used to distinguish open voting from secret voting. The privilege of secrecy is of the essence of voting by ballot." Smith & Son, Inc. v. Town of Hartford, 196 A. 281, 283 (Vt. 1938).

10 When the Constitution requires an election by the General Assembly to be conducted by open voting, it so provides expressly. Article II, §4 ("Every election of Governor or Lieutenant Governor ... by the General Assembly shall be determined by a joint majority . . . and the vote shall be taken viva voce"). See 53 Opinions of the Attorney General at 289-90.

11 A century ago, the South Carolina Supreme Court construed that state's constitutional requirement that "a Judge shall be elected by joint ballot of the General Assembly" to mean that (i) a secret ballot was essential; and (ii) a judge elected by voice vote, instead of secret ballot, had no valid title to the office and was subject to ouster. State v. Shaw, 9 S.C. 94 (1878).

However, we doubt that this aspect of the Shaw case would be followed by the courts of Maryland, should the General Assembly choose to disclose individual votes in the selection of the Treasurer. First, this aspect of Shaw derived in part from the particular evolution of the provision in South Carolina. See 9 S.C. at 139. Second, the meaning of the term "ballot" is not so rigid as to exclude the possibility of a nonsecret ballot. See Black's Law Dictionary at 130-31 (separately defining "ballot" and "secret ballot"). Cf. Norris v. Baltimore, 172 Md. at 677 (citing approvingly a definition of "ballot" as the "'[a]ct of voting, usually in secret'") (emphasis added). Third, the practice of the General Assembly in this century of announcing votes for the Treasurer would be given considerable deference. Cf. Article III, §19 (each House shall "determine the rules of its own proceedings"). Finally, in construing the Constitution, the courts will, we think, recognize that the modern emphasis on open government, manifested, for example, in the Open Meetings Law, §§10-501 through 10-510 of the State Government Article, makes appropriate the General Assembly's departure from the early meaning of the term "ballot" in this context. "The meaning of the Constitution is not restricted to the meaning of particular words employed as they were understood at the time of its adoption." Clauss v. Board of Educ., 181 Md. 513, 523 (1943).

12 In 1896, for example, the Treasurer was not elected until February 26th. 1896 H. Jour. at 472; 1896 S. Jour. at 484. The incumbent Treasurer serves until the qualification of his successor. See Archer v. State, 74 Md. 410 (1891); 58 Opinions of the Attorney General 130 (1973).