Can a Maryland town bar its commissioners from running again right after serving two consecutive terms?

Plain-English summary

The attorney for the Town of Poolesville asked the Attorney General to review a citizen petition proposing to amend the town charter to bar anyone from being elected commissioner who had served "two (2) or more consecutive terms or a portion of a term or terms immediately prior to" the election. He asked both whether the amendment was legal and whether it would reach someone who had served only part of an unexpired term.

The opinion concluded the amendment was constitutional. As a home rule municipality under Article XI-E of the Maryland Constitution, Poolesville had the authority to amend its own charter on matters of organization and government, including a term limit, and the opinion found nothing in Maryland's Article XI-E or Article 23A process that barred this kind of amendment. Turning to federal constitutional law, the opinion worked through Equal Protection Clause case law establishing that the right to seek elective office is not itself a fundamental right, so a term-limit classification only needed a rational basis, and concluded that curbing political entrenchment and widening the field of candidates were legitimate objectives rationally served by a two-year waiting period between consecutive terms. The opinion likewise found no First Amendment problem, since courts had treated similar waiting periods as an insignificant burden on candidates and voters. On the second question, the opinion concluded the amendment's language was broad enough to disqualify someone who had served two terms even if one or both were unexpired (partial) terms, but that the amendment legally could not apply to the very 1992 election at which voters would be deciding whether to adopt it, since a disqualification has to be in effect before the election it governs; the first election the amendment could actually apply to was the 1994 election.

Currency note

This opinion was issued in 1991 and analyzed a specific proposed Poolesville charter amendment against Article XI-E of the Maryland Constitution, Article 23A of the Maryland Code, and federal Equal Protection and First Amendment case law as they stood at the time. 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 the current Poolesville Charter, current Article 23A provisions, and current ballot-access case law before relying on any specific rule described here.

Common questions

Could a Maryland town legally bar a commissioner from running again right after two terms?
According to this 1991 opinion, yes. The Attorney General concluded a consecutive-term-limit charter amendment was within Poolesville's home rule authority under Article XI-E of the Maryland Constitution and survived federal Equal Protection and First Amendment review under the rational basis test, because curbing political entrenchment and broadening candidate choice were legitimate objectives a waiting period reasonably served.

Would a term limit like this stop someone who only served part of a term?
According to the opinion, yes, it read the proposed language, covering "two (2) or more consecutive terms or a portion of a term or terms," as reaching a person who had served two terms even where one or both were unexpired partial terms filled by appointment or special election.

Could the term limit have applied to the same election where voters were approving it?
No, according to the opinion. Because a disqualification from office has to be in legal effect before the election it applies to, and the amendment would not take effect until 30 days after the vote was certified, the opinion concluded the amendment could not disqualify anyone at the 1992 election where it was on the ballot; the earliest election it could govern was 1994.

Background and statutory framework

The Town of Poolesville's charter provided for five commissioners serving staggered four-year terms, with vacancies filled by special election or, if close to a regular election, by the remaining commissioners. Under §82-3 of the Poolesville Charter, residents used the citizen-petition process in Article 23A, §14 of the Maryland Code, requiring signatures from at least 20% of voters, to place a consecutive-term-limit amendment on the ballot. The opinion found this squarely within the home rule authority Article XI-E, §4 of the Maryland Constitution confers on municipalities to amend their own charters on matters of "incorporation, organization, government or affairs," citing Town of Glenarden v. Bromery, 257 Md. 19, 262 A.2d 60 (1970), where the Court of Appeals had upheld similar charter amendments (including consecutive term limits) as valid exercises of that home rule power.

On the federal constitutional questions, the opinion applied the framework the Supreme Court used in Clements v. Fashing, 457 U.S. 957 (1982), which had upheld a Texas constitutional provision imposing a waiting period on certain officeholders seeking legislative seats, reasoning that the right to seek elective office (unlike the right to vote) is not a fundamental right, so a classification affecting it needs only a rational basis under the Equal Protection Clause, and treating similar waiting periods as an "insignificant" First Amendment burden. The opinion found Maryland case law consistent, citing Broadwater v. State, 306 Md. 597, 606-08, 510 A.2d 583 (1986), which distinguished the fundamental right to vote from the non-fundamental right to seek office. It also noted Maryland's own Governor is subject to a consecutive two-term limit under Article II, §1 of the Maryland Constitution, and that similar limits exist for the Howard County executive and Annapolis mayor, supporting the conclusion that curbing political entrenchment is a legitimate governmental objective rationally advanced by a consecutive-term restriction. On timing, the opinion reasoned from Article 23A, §16(c)'s 30-day effective-date rule that a disqualification provision cannot be applied to the very election that ratifies it, so the amendment's earliest possible application would be the 1994 town election.

Citations and references

Statutes:

• Article XI-E of the Maryland Constitution, granting home rule charter authority to municipal corporations
• Article XI-E, §4, authorizing charter amendment by resolution or petition
• Article 23A, §14 of the Maryland Code, the citizen-petition process for placing a charter amendment before voters
• Article 23A, §16, providing for a charter amendment to take effect after proclamation of a ratifying vote
• Article 23A, §16(c), the 30-day effective-date provision applied to the timing question
• §82-3 of the Poolesville Charter, establishing the five-commissioner structure and residency requirement
• Article II, §1 of the Maryland Constitution, Maryland's own consecutive two-term limit for Governor
• Article III, §302(b) of the Howard County Charter, a similar county executive term limit
• Article II, §3(b) of the Annapolis Charter, a similar mayoral term limit
• Fourteenth Amendment, the source of the federal Equal Protection Clause analysis
• Article 24 of the Maryland Declaration of Rights, the state constitutional analog to the Equal Protection Clause

Cases:

• Town of Glenarden v. Bromery, 257 Md. 19, 262 A.2d 60 (1970), Maryland Court of Appeals decision upholding home rule charter amendments including consecutive term limits
• New Orleans v. Duke, 427 U.S. 297, 303 (1976), U.S. Supreme Court decision on the rational basis standard for ordinary classifications
• Pennell v. City of San Jose, 485 U.S. 1 (1988), U.S. Supreme Court decision applying rational basis review
• Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 (1976), U.S. Supreme Court decision on when strict scrutiny applies
• Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988), U.S. Supreme Court decision on the heightened scrutiny standard for gender or illegitimacy classifications
• Bullock v. Carter, 405 U.S. 134, 142-43 (1972), U.S. Supreme Court decision holding the right to seek elective office is not itself fundamental
• Clements v. Fashing, 457 U.S. 957, 963 (1982), U.S. Supreme Court decision upholding a legislative candidacy waiting period as an insignificant burden
• Storer v. Brown, 415 U.S. 724, 726 and 736 (1974), U.S. Supreme Court decision upholding a 12-month waiting period for independent candidates
• Chimento v. Stark, 353 F.Supp. 1211, 1212 and 1217-18 (D.N.H.), aff'd 414 U.S. 802 (1973), federal decision upholding a seven-year durational residence requirement for Governor
• Broadwater v. State, 306 Md. 597, 606-08, 510 A.2d 583 (1986), Maryland Court of Appeals decision distinguishing the right to vote from the right to seek office
• Dixon v. Maryland State Administrative Board of Election Laws, 878 F.2d 776, 779 (4th Cir. 1989), federal appellate decision on the connection between voting rights and candidate eligibility restrictions
• Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), U.S. Supreme Court decision on weighing First Amendment burdens against state interests
• Maddox v. Fortson, 226 Ga. 71, 172 S.E.2d 595 (1970), Georgia Supreme Court decision rejecting an equal protection challenge to gubernatorial term limits
• State ex rel. Maloney v. McCartney, 223 S.E.2d 607 (W. Va. 1976), West Virginia Supreme Court decision upholding gubernatorial term limits against political entrenchment
• Vance v. Bradley, 440 U.S. 93, 111 (1979), U.S. Supreme Court decision on the rational basis test's minimal requirements

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/1991/Volume76_1991.pdf (this opinion appears at printed pages 300-306 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

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

MUNICIPALITIES

Elections - Candidates - Constitutional Law - Legality of
Charter Amendment Limiting Consecutive Terms of
Town Commissioners

                       September 9, 1991

Richard S. McKernon, Esquire
Attorney for the Town of Poolesville

You have requested our opinion concerning a proposed consecutive

term limit for the commissioners of Poolesville. Specifically, you asked
about the legality of a proposed charter amendment that would bar from
election someone who had served "two or more consecutive terms or a
portion of a term or terms immediately prior to [an] election." You
also asked if this prohibition would apply to a person who had served
even a portion of an unexpired term prior to the next election.

   For the reasons stated below, we conclude that the proposed

amendment is valid, and it would apply to a person who had served even
a portion of an unexpired term. However, it could not be applied to the
candidates for town commissioner in the 1992 municipal election if, as
planned, it will not be voted on until that election.

                                I

                Proposed Charter Amendment

 Section 82-3 of the Charter of the Town of Poolesville provides for

the election of five commissioners, all of whom are elected to four-year
terms. Three are elected at each presidential election and two are
elected at the gubernatorial election. In the event of a vacancy, a special
election is held if the vacancy occurs more than one year before the next
regular election. Vacancies occurring within a year of an election are
filled by the remaining commissioners.

By petition, some residents of Poolesville have proposed that the

charter be amended to include the following term limit provision:

           Beginning       with    the    election    of
      commissioners of Poolesville in 1992 and at all
      elections thereafter, no person shall be elected to
      the office of commissioner of Poolesville who
      has served two (2) or more consecutive terms or
      a portion of a term or terms immediately prior to
      said election.

In your letter, you advised that more than 20% of the voters have

signed the petition. In the course of a recent telephone conversation,
you indicated that the referendum will be held at the time of the 1992
presidential election. Although no issue has been raised concerning the
procedure followed in proposing the amendment, the question has arisen
whether the proposed limitation on more than two consecutive terms is
contrary to State law or is otherwise unlawful.

                                II

                       Constitutionality

A. Maryland Constitution

As a municipal corporation, the Town of Poolesville has home rule

status under Article XI-E of the Maryland Constitution. Article XI-E,
§4 confers on municipal corporations the authority "to amend ... an
existing charter ... relating to the incorporation, organization,
government or affairs of said municipal corporation." Amendments may
be initiated either by resolution of the legislative body or by petition.

   In accordance with Article XI-E, §4, the General Assembly has

enacted legislation providing that, upon receipt of a petition signed by
at least 20% of the voters, the legislative body is to submit the proposed
amendment to the voters at either a special election or the next regular
municipal election. Article 23A, §14 of the Maryland Code. If it is
ratified, the amendment takes effect 30 days after the issuance of a
proclamation of the result. Article 23A, §16.

 The validity of a municipal term limit was considered in Town of

Glenarden v. Bromery, 257 Md. 19, 262 A.2d 60 (1970). At issue in
that case was a series of amendments to Glenarden's charter that
shortened the terms of the council and mayor from four to two years;
imposed consecutive term limits of three and two terms, respectively;
and provided for a special election to fill these offices. Although the
validity of each of the amendments was initially at issue, ultimately the
case focused on the special election provisions. 257 Md. at 21-22.
Nevertheless, in the course of its opinion, the Court of Appeals observed
that the various amendments dealt with the form of government, as
contemplated by Article XI-E, and that all except the special election
provision were conceded to be valid. 257 Md. at 23-24 and 26.1

  Because the proposed consecutive term limit amendment to the

Charter of the Town of Poolesville unquestionably deals with the
organization and government of that municipal corporation, it is within
the home rule powers conferred by Article XI-E.

B. Federal Constitution

    We have also considered whether the proposed term limit

amendment violates the Equal Protection Clause or the First
Amendment's guarantee of free speech and association. The Fourteenth
Amendment provides, in part, that no state may "deny to any person
within its jurisdiction the equal protection of the laws."2

   In interpreting the Equal Protection Clause, the Supreme Court has

held that ordinarily a classification must simply be "rationally related to
a legitimate [governmental] purpose." New Orleans v. Duke, 427 U.S.
297, 303 (1976). See also, e.g., Pennell v. City of San Jose, 485 U.S.
1 (1988). A classification is subject to "strict scrutiny" only if it
interferes with a fundamental right or discriminates on the basis of a
suspect classification. See, e.g., Massachusetts Board of Retirement v.
Murgia, 427 U.S. 307, 312 (1976).3 Although the right to vote is

    1
       Noting that there is no federal constitutional bar to altering the tenure

of public officers, the Court upheld the special election provisions. 257 Md. at
26 and 27.
2
A generally similar clause appears in Article 24 of the Maryland
Declaration of Rights.
3
If a classification is based on gender or illegitimacy, an intermediate
standard of "heightened scrutiny" is required. See, e.g., Kadrmas v. Dickinson
Public Schools, 487 U.S. 450 (1988).

regarded as fundamental, the Court has not deemed the right to seek
elected office to be fundamental. See Bullock v. Carter, 405 U.S. 134,
142-43 (1972); Clements v. Fashing, 457 U.S. 957, 963 (1982)
(plurality opinion).

  In Clements, the Supreme Court recognized that restrictions on

ballot access that are based on wealth or that especially burden new or
small parties or independent candidates are subject to greater scrutiny.
457 U.S. at 964. However, it declined to apply such scrutiny to a
constitutional ban on certain officials' serving in the Texas Legislature
during the term to which they were elected or appointed. Although the
effect of the ban was to impose a two-year waiting period on some
candidates, the Court deemed this consequence to be a "de minimis"
burden. 457 U.S. at 967. It referred to this "waiting period" as "a
hardly significant barrier to candidacy." 457 U.S. at 967. See also
Storer v. Brown, 415 U.S. 724, 726 and 736 (1974) (upholding a 12-
month waiting period for independent candidates who abandon their
party affiliation); Chimento v. Stark, 353 F.Supp. 1211, 1212 and 1217-
18 (D.N.H.), aff'd 414 U.S. 802 (1973) (upholding a seven-year
durational residence requirement for Governor). The insignificant
burden of a waiting period on candidates was also the basis for the
majority's rejection of a First Amendment challenge in the Clements
case. 457 U.S. at 971-972.4

Citing Clements, the Maryland Court of Appeals applied the rational

basis standard to uphold a constitutional ban on unregistered voters
holding elected public office. Broadwater v. State, 306 Md. 597, 606-
08, 510 A.2d 583 (1986). Although the Court recognized that the right
to vote is a fundamental right, the Court distinguished between the right
to vote and the right to seek elective office. 306 Md. at 604 and 606-
07.

    4
       In Clements, three justices joined with Chief Justice Rehnquist in the

Equal Protection analysis. 457 U.S. at 959. A fifth, Justice Stevens, concurred
in the judgment but concluded that there was no interest protected by the Equal
Protection Clause. 457 U.S. at 973. However, Justice Stevens did join the other
four justices in the First Amendment analysis. 457 U.S. at 976.

  We recognize that in Dixon v. Maryland State Administrative

Board of Election Laws, 878 F.2d 776, 779 (4th Cir. 1989), the U.S.
Court of Appeals for the Fourth Circuit emphasized the connection
between the right to vote and the right to seek elective office.
Restrictions on candidate eligibility implicate the First Amendment
rights of voters, especially where the effect is to limit the field of
candidates from which voters may choose. Nevertheless, citing
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), the court
acknowledged that every case calls for a weighing of the character and
magnitude of the asserted injury to First Amendment rights against the
interests asserted by the State. Dixon, 878 F.2d at 779-80. And, as
discussed above, Clements treated two-year waiting periods for
candidates as an "insignificant" burden on the First Amendment rights
of candidates and voters. 457 U.S. at 961 and 971-72.

Applying the rational basis test, the Supreme Courts of Georgia and

West Virginia have rejected equal protection challenges to consecutive
term limits for their Governors. Maddox v. Fortson, 226 Ga. 71, 172
S.E.2d 595 (1970); State ex rel. Maloney v. McCartney, 223 S.E.2d 607
(W. Va. 1976).5 In Maloney, the court noted that the State had a
"rational interest in avoiding political entrenchment and the means
chosen, i.e. limitations on successions, are reasonable." 223 S.E.2d at

612. Indeed, because the incumbent mayor in the Emmery case had
     served 28 years, considerations of political entrenchment apparently
     motivated the various charter amendments, including consecutive term
     limits, that were at issue in that Maryland case. Emmery, 257 Md. at
     21.

     While we are not advised of the reason for the proposed consecutive
     term limit amendment, the rational basis test merely requires that there
     be some conceivable governmental objective that is rationally served by
     the classification. See, e.g., Vance v. Bradley, 440 U.S. 93, 111
     (1979). Limiting political entrenchment and enlarging the opportunity
     for a greater choice of candidates are proper objectives, and limiting the
     number of consecutive terms that incumbents may serve is directly and

     5
        Maryland also has a consecutive term limit for the Governor. Article
     

     II, §1 of the Maryland Constitution provides that a person who has served two
     consecutive popularly elected terms as Governor is ineligible to succeed himself
     as Governor. Consecutive term limits for county executives and mayors are
     common. See, e.g., Article III, §302(b) of the Howard County Charter; Article
     II, §3(b) of the Annapolis Charter.

rationally related to achieving these objectives. Accordingly, there is no
violation of the Equal Protection Clause.

   In reaching this conclusion, we emphasize that the proposed

amendment does not limit the total number of terms that a commissioner
may serve, and we are not addressing the distinctly separate issue of
such absolute limits. The reference to terms "immediately prior to said
election" means that the proposed amendment merely imposes a limit on
consecutive terms. Because there is an election for at least two
commissioners every two years, the effect of the ban is to impose a two-
year waiting period on incumbents who are subject to the ban and who
wish to run again. As held in the Clements case, such a waiting period
is deemed an insignificant burden on First Amendment rights. 457 U.S.
at 971-72. It is not unlike the existing waiting period for new residents
who wish to be elected.6

                                III

            Application to Certain Incumbents

You also asked for our opinion about the application of the proposed

amendment to commissioners who have served a portion of an unexpired
term prior to the 1992 election. Although the proposed amendment
imposes the disqualification "beginning with the election ... in 1992," it
is our view that the proposed amendment will not apply to that election,
the very election at which the question is on the ballot.

   Even if the proposed amendment is approved at referendum, it will

not take effect until 30 days after the proclamation of the result. Article
23A, §16(c). Because the proposed amendment is a disqualification
from election, it obviously must be in effect prior to any election to
which it is to apply. If the amendment is ratified, the first regular
election to which it applies will be the 1994 election.

  By its express terms, those who have served two or more

consecutive terms immediately prior to that election will be disqualified.

    6
       The charter requires candidates to have resided in the town at least six

months prior to their election. §82-3 of the Poolesville Charter. A person who
moves to Poolesville five months before an election would have to wait two years
and five months until the next regular election.

Although the reference to "a portion of a term or terms immediately
prior to said election" is rather ambiguous, it can be interpreted to refer
to a person who has served two terms, one or both of which are
unexpired terms. This interpretation is consistent with the general two
consecutive term limit.

                                IV

                           Conclusion

 In summary, it is our opinion that the proposed consecutive term

limit amendment to the Poolesville Charter is valid. Although it applies
to unexpired as well as whole terms, it cannot take effect until after it is
ratified at the 1992 election.

                                           J. Joseph Curran, Jr.
                                           Attorney General

                                           Richard E. Israel
                                           Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice