146 [79 Op. Att’y

 All statutory references in this opinion are to Article 33. 1

ELECTIONS ) CANDIDATES ) DISBURSEMENT UNDER THE FAIR

CAMPAIGN FINANCING ACT TO WRITE-IN CANDIDATES

July 29, 1994

Mr. Gene M. Raynor

Administrator

State Administrative Board of Election Laws

You have asked our opinion concerning the interpretation of

certain provisions of the Fair Campaign Financing Act (the “Act”),

Article 33, §31-1 et seq. of the Maryland Code, as that Act applies

to write-in candidates. Specifically, your question is whether a 1

write-in candidate who qualifies for public funds in the general

election is entitled to receive an “equal share” of the money

remaining in the Fund. 

For the reasons set forth below, we conclude that an eligible

write-in candidate in the general election ) that is, one who has

raised at least $149,670 in “seed money” and who meets the Act’s

other requirements ) is entitled to receive an “equal share” of the

money remaining in the Fund. Thus, we reaffirm advice provided to

candidates last year by the State Administrative Board of Election

Laws. Summary of the Fair Campaign Financing Fund at 8 (May

1993). 

I

Background

In a recent opinion, we addressed several interpretive issues

related to the process by which candidates qualify for public funding

pursuant to the Act. See 79 Opinions of the Attorney General 136

(1994). Your present inquiry involves an aspect of the disbursement

of public funds to qualified candidates. As explained in that

opinion, disbursements are made in the following manner: 
Gen. 146] 147

 That subsection also provides: “An eligible candidate who did 2

not receive public contributions in the primary, but is a nominee in the

general election, may only receive public contributions in the general

election if the candidate did not spend more than the maximum

expenditure limit in the primary.”

Half of the fund is to be distributed to

eligible candidates in the Republican and

Democratic primary elections. §31-4(b). In a

contested primary, each eligible candidate is

to received $1 in public contributions for

every $2 in eligible private contributions.

§31-5(b)(2). If a candidate is unopposed in

the primary, the candidate is to receive $1 in

public contributions for every $3 in eligible

private contributions. §31-5(b)(3). The other

half of the fund (i.e., the half not used for the

primary), plus any money left over from the

primary is to be distributed “in equal shares”

to eligible candidates in the general election,

including write-in and petition candidates if

otherwise eligible. §31-5(c).

79 Opinions of the Attorney General 136 at 139.

Thus, there are two types of disbursements under the Act. For

the primary election, an eligible candidate receives, pursuant to the

statutory formula, “matching funds” for eligible private

contributions. §31-5(b). For the general election, however, the

public funds are distributed in “equal shares.” §31-5(c)(2). You 2

have now asked us to consider anew, and to explain in detail, the

conclusion reflected in both our prior opinion and in advice

distributed last year by the State Board ) that a write-in candidate

who qualifies for public funds in the general election is entitled to an

“equal share” of the general election disbursement. 

II

Write-In Candidates and the Fund

As defined by §1-1(a)(20), a “write-in candidate” means “a

person whose name will not appear on the ballot but who files a

certificate of candidacy in accordance with §4D-1 ....” Under the
148 [79 Op. Att’y

 Maryland’s so-called “sore loser” provision prohibits the name 3

of a candidate who lost in the primary election from being printed on the

general election ballot. §8-2(a). A write-in candidate’s name does not

appear on the ballot, so this provision does not prevent a losing candidate

in a primary from running as a write-in candidate in the general election.

 Interestingly, the original 1974 legislation included a provision 4

stating: “No person who received matching payments as a candidate in a

primary election and lost the primary election is eligible to receive any

general election public contribution.” Since a primary loser could only

participate in the general election as a write-in candidate, this provision

would have excluded write-in candidates from participating in the Act.

However, the provision was deleted from the final version of the 1974

legislation.

Election Code, write-in candidates are not permitted in a primary

election. §5-3(f). Rather, the primary election is limited to

recognized political parties. See §5-1; Barnhart v. Mandel, 311 F.

Supp. 814 (D. Md. 1970). In the general election, however, a person

who files a certificate of candidacy in accordance with the law is

eligible to be a write-in candidate.3

Prior to 1986, the Act’s application to write-in candidates was

not clear. While the Act as originally introduced in 1974 expressly

included provisions for independent (petition) candidates and

unopposed primary nominees, there was no reference to write-in

candidates. See Chapter 729 (House Bill 510) of the Laws of

Maryland 1974. However, a November 25, 1974 letter from then

Assistant Attorney General George A. Nilson to the Executive

Director of the Task Force to Study Campaign Financing advised

that, although the matter was not altogether free from doubt, the

definition of “candidate” in the Act arguably included a write-in

candidate. Relying on that letter, the Task Force subsequently

recommended “that in a general election all major and minor party

and independent candidates be eligible for public financing.” The

Task Force then specifically recommended that “unopposed and

write-in candidates should not be eligible for public funds.” Task

Force to Study Campaign Financing, First Report 16 (January

1975).4

In the years following the Task Force report, little was done

with the Act, save occasional legislation to delay its implementation,

until a major overhaul of the Act in 1986. See 79 Opinions of the

Attorney General 136 at 138-39. What role the 1975 Task Force
Gen. 146] 149

 In addition, the candidate must file with the State Board a notice 5

of intention to qualify and a request for a public contribution not later than

five days after the State Board has declared the identities of the candidates

for Governor and Lieutenant Governor in the general election; the State

Board now anticipates that the deadline for the notice and request will be

September 28, 1994, but this date is subject to change. The candidate

must also file a certificate of candidacy prior to requesting public funds

and affirm that the candidate did not exceed the maximum spending limit

in the primary election, if the write-in candidate sought nomination in the

primary. Write-in candidates who are seeking public money from the

Fund must file a certificate of candidacy on or before the deadline for

requesting public funds discussed above, rather than the deadline provided

in §4D-1(c).

report may have played in the 1986 substantive amendments is not

clear. However, it is clear that the Task Force’s position on write-in

candidates was not shared by the 1986 General Assembly. To the

contrary, House Bill 1781 in 1986 specifically addressed the Act’s

application to write-in candidates as part of a direction to the State

Administrator of Election Laws to “promulgate comprehensive

regulations to carry out the purposes and requirements of [the Act].”

Now codified as §31-4(c)(8), the Act directs that these

regulations are to include provisions regarding distributions to: 

(i) unopposed candidates; 

(ii) candidates who are not members of

the two principal political parties; and

(iii) write-in candidates. 

(Emphasis added.) The implementing regulations, COMAR

14.02.13.08, specifically provide as follows: “A write-in candidate

who has filed a certificate of candidacy which meets the

requirements of law may receive a public contribution if the

candidate meets the requirements of the Act and this chapter.” See

also COMAR 14.02.13.02B(2) (“‘candidate’ includes a

Governor/Lieutenant Governor unit which: (i) Files in a party

primary; or (ii) Becomes a general election candidate by any means

other than nomination in a party primary.”) One requirement is that

the write-in candidate have raised at least the minimum amount of

“seed money,” $149,670.5
150 [79 Op. Att’y

 As originally introduced, House Bill 510 in 1974 provided for 6

matching funds in a primary election and a lump sum disbursement in the

general election. However, during consideration of the bill, an

amendment, as explained by the Task Force, eliminated primary

candidates from public financing and required that “partial public

financing [be] directed towards general election candidates.” Task Force

Report at 6. The Task Force recommended as a “top priority” for the 1975

General Assembly that public financing be made available to both primary

and general election candidates. See Task Force Report at 7, 15.

Since a write-in candidacy is only permitted in the general

election, it follows that the regulation speaks to the write-in

candidate’s eligibility for general election (“equal shares”)

disbursement, not matching funds. We explore this aspect of the

question in Part III below. 

III

Public Fund Disbursements

Prior to 1986, the disbursement of public funds was limited to

matching funds in the general election. The 1986 amendments 6

established the two types of disbursements briefly outlined in Part I

above. Now codified as §31-5, the Act specifically provides: 

(b)(1) The State Board shall order

disbursement of funds, designated for

disbursement in the primary, as provided in

this subsection.

 (2) Candidates who are opposed in the

primary shall receive $1 in public

contributions for every $2 in eligible private

contributions.

 (3) Candidates who are unopposed in

the primary shall receive $1 in public

contributions for every $3 in eligible private

contributions.

(c)(1) The State Board shall order

disbursement in the general election of all

money remaining in the Fund, including
Gen. 146] 151

money remaining from the portion designated

for the primary, as provided in this subsection.

 (2) All eligible candidates who are

nominees shall receive equal shares of the

Fund.

 (3) If a candidate is unopposed on the

general election ballot, the candidate shall

receive no public contributions.

 (4) An eligible candidate who did not

receive public contributions in the primary,

but is a nominee in the general election, may

only receive public contributions in the

general election if the candidate did not spend

more than the maximum expenditure limit in

the primary.

In light of this statutory language, it is clear that any “nominee

in the general election” is eligible for an “equal share” disbursement

in that election. Traditionally, the term “nominee” refers to primary

election winners and petition candidates, not write-in candidates.

See §4-1 (“Nominations for office ... may be made by primary

election or petition.”). Thus, it could be argued that the General

Assembly, through the use of the term “nominee,” intended to

exclude write-in candidates from receiving a public fund

disbursement in the general election. In our view, however, the

General Assembly did not intend to so exclude write-in candidates.

In the first place, it is highly doubtful that the term “nominee”

was used intentionally to exclude write-in candidates when earlier in

the Act special attention was given to address the eligibility of writein candidates. See Part II above. Thus, while the starting point of

legislative interpretation is the language of the statute itself, the

“plain meaning rule of construction is not absolute; rather the statute

must be construed reasonably with reference to the purpose, aim, or

policy of the enacting body.” Tracey v. Tracey, 328 Md. 380, 387,

614 A.2d 590 (1992). Further “all parts of a statute are to be read

together to determine intent, and reconciled and harmonized to the

extent possible.” Condon v. State, 332 Md. 481, 491, 632 A.2d 753

(1993). With these precepts in mind, we think it is highly unlikely

that the General Assembly would, on the one hand, mandate the

promulgation of regulations governing disbursements to write-in

candidates and then, on the other hand, exclude write-in candidates
152 [79 Op. Att’y

from the Act. Rather, we think the use of the term “nominee” in

§31-5 was the result of a drafting oversight, not a manifestation of

legislative intent.

Our conclusion is bolstered by an amendment that occurred

during consideration of the 1986 legislation. As introduced, §31-

4(b) provided as follows: “Subject to the other requirements of this

subtitle, the State Board shall distribute one-half of the money in the

Fund to eligible candidates in the primary election and the remaining

money in the fund to eligible candidates who are nominees in the

general election.” House Bill 1781 of 1986 (emphasis added).

Tellingly, the emphasized language referring to “nominees”

was deleted during consideration of the bill. The exclusion of the

term “nominees” in §31-4(b), in our view, illustratesthat the General

Assembly was cognizant of the conflict between the word

“nominees” in the beginning of the section and the requirement

mandating the promulgation of regulations for write-in candidates

later in the section. In other words, the General Assembly intended

to ensure the accessibility of the Fund to write-in candidates and

took care to eliminate language suggesting that a write-in candidate

was not entitled to access. See also §31-4(d) (“all eligible

candidates”). Seemingly inadvertently, the same care was not

exercised in relation to the use of the term “nominee” in §31-5(c).

If we were to read the term “nominee” in §31-5(c) literally,

§31-4(c)(8)(iii), with its explicit reference to “write-in candidates,”

would be negated. This we cannot do. See Montgomery County v.

Buckman, 333 Md. 516, 523, 636 A.2d 448 (1994) (“absent a clear

intent to the contrary, a statute is to be read so that no ... phrase is

rendered surplusage, superfluous, meaningless, or nugatory”).

Further, even if the variation in language were thought to make

the statute as a whole ambiguous on this point, the State Board’s

regulation allowing write-in candidates to qualify for the Fund

would be decisive. See 76 Opinions of the Attorney General 3, 10,

n.7 (1991) and accompanying text; see generally Chevron, U.S.A.,

Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). 
Gen. 146] 153

IV

Conclusion

In summary, it is our opinion that a write-in candidate who

raises at least $149,670 in seed money by September 28, 1994 and

meets all other statutory and regulatory requirements may obtain a

share of the money remaining in the Fair Campaign Financing Fund

after the primary election equal to the share of any other candidate.

J. Joseph Curran, Jr.

Attorney General

Mary O. Lunden

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice

Editor’s Note:

The provisions construed in this opinion are currently codified

in Article 33, Title 15, the “Public Financing Act.”