80 [92 Op. Att’y

ELECTIONS

BALLOTS – VOTING – ABSENTEE BALLOT OATH SHOULD BE

MODIFIED TO INCORPORATE CONDITIONS FOR USE OF

ABSENTEE BALLOT BY TRACKING CONSTITUTIONAL

LANGUAGE

July 18, 2007

Linda Lamone

Administrator, Maryland State Board of Elections

You have requested our opinion concerning the wording of the

oath completed by a voter who casts an absentee ballot. Your

question is prompted by the Court of Appeals decision in Lamone v.

Capozzi, 396 Md. 53, 912 A.2d 674 (2006), which held that a statute

authorizing voting in advance of election day violated the Maryland

Constitution. In the course of that decision, the Court construed

Article I, §3, the constitutional provision authorizing absentee

ballots, to pertain only to “‘absent’ voters, not those who find the

voting day to be inconvenient.”

In our opinion, the absentee ballot oath should track the

language of Article I, §3 – that is, the voter should be required to

swear or affirm that he or she will be absent or will be unable to vote

in person on election day. If an amendment of Article I, §3 passed

by the General Assembly at its 2007 session is ratified by the voters,

the absentee ballot forms should be amended to track the amended

provision or any legislation governing absentee ballots consistent

with that provision. 

I

Background

A. Constitutional Basis for Absentee Voting

The Maryland Constitution recognizes two methods of

exercising the right to vote. The first method, by casting a ballot in

person, is expressly provided for in Article I, §1. That provision

defines who may vote and where he or she may vote:
Gen. 80] 81

 The 1864 Constitution permitted absentee voting by soldiers fighting 1

for the Union in the Civil War. However, that authorization was omitted

when the current Constitution was adopted in 1867. The Constitution was

amended in 1918 to permit the General Assembly to allow absentee voting

by members of the armed forces. Chapter 20, Laws of Maryland 1918,

ratified November 5, 1918. Thirty-five years later, that provision was

expanded to authorize absentee voting by any voter who would be absent

from his or her election district on election day. Chapter 480, Laws of

Maryland 1953, ratified November 2, 1954. A few years later, the

provision was expanded to cover voters who would be in the district, but

hospitalized or bedridden on election day. Chapter 100, Laws of

Maryland 1956, ratified November 6, 1956. Twenty years later, the

provision was amended to its current form – which simply provides that

absentee voting may be made available to any voter who is “absent at the

time of any election” or “unable to vote personally.” Chapter 881, Laws

of Maryland 1974, ratified November 5, 1974. (A subsequent amendment

recodified the provision from its original enactment as Article I, §1A, to

Article I, §3. Chapter 681, Laws of Maryland 1977, ratified November 7,

1978).

As explained later in the text, the Legislature recently approved an

amendment of Article I, §3, which will be presented to the voters for

ratification in the 2008 election.

All elections shall be by ballot. Every citizen

of the United States, of the age of 18 years or

upwards, who is a resident of the State as of

the time for the closing of registration next

preceding the election, shall be entitled to vote

in the ward or election district in which he

resides at all elections to be held in this State.

A person once entitled to vote in any election

district, shall be entitled to vote there until he

shall have acquired a residence in another

district of ward in this State.

The second method of voting, sanctioned by the current State

Constitution since 1918, is by absentee ballot. The Constitution 1

does not mandate an absentee ballot, but authorizes the General

Assembly to provide for it. Article I, §3 provides:

The General Assembly of Maryland shall have

power to provide by suitable enactment for

voting by qualified voters of the State of

Maryland who are absent at the time of any

election in which they are entitled to vote and
82 [92 Op. Att’y

 Chapter 78, Laws of Maryland 1918. 2

 Chapter 6, Laws of Maryland 2006. 3

See EL §9-308 (providing that a person who by reason of disability or 4

inability to read or write needs assistance in casting ballot may be assisted

by an individual who executes a certificate prescribed by the SBE). 

for voting by other qualified voters who are

unable to vote personally and for the manner

in which and the time and place at which such

absent voters may vote, and for the canvass

and return of their votes.

The Court of Appeals has referred to absentee voting as a “special

privilege” accorded by the Legislature which is “not shared by other

voters – the privilege of having their vote count even though

received by the election officials after the polls have closed.” Lamb

v. Hammond, 308 Md. 286, 309-10, 518 A.2d 1057 (1987). 

B. Implementation of Absentee Voting

1. Before 2006

The State election law has made provision for absentee voting

since 1918 and was most recently amended in 2006. The General 2 3

Assembly has directed the State Board of Elections (“SBE”) to

establish guidelines for the administration of absentee voting by the

local boards of election within the statutory parameters. Annotated

Code of Maryland, Election Law Article (“EL”), §9-303. For that

purpose, the SBE has developed a number of forms, including an

application for the voter to complete and return, an oath to be

completed with the absentee ballot itself, and a certificate of a

person assisting the absentee voter. See, e.g., COMAR 33.11.02.02 4

(providing that an application for an absentee ballot is to be made to

a local board on a form prescribed by SBE or provided under federal

law). 

Before the 2006 statutory amendment, an individual applying

for an absentee ballot could vote absentee only for one of the six

reasons listed in the statute: absence on election day from the county

in which the voter was registered; inability to go to the polling place

because of accident, illness, or physical disability; confinement in an

institution; death or serious illness in the voter’s immediate family;
Gen. 80] 83

For example, federal law authorizes absentee voting by members of the 5

uniformed services and other voters who are out of the country. See 42

U.S.C. §1973ff et seq. (Uniformed and Overseas Citizens Absentee

Voting Act).

 At one time, the application for an absentee ballot had to contain an 6

affidavit that provided the information under penalty of perjury. The

General Assembly eliminated that requirement in 1996. Chapter 2, Laws

of Maryland 1996. See Pelagatti v. Bd. of Supervisors of Calvert County,

343 Md. 425, 440 n.14, 682 A.2d 237 (1996). 

student status; and absence because of employment by the State

Board or local board. See former EL §9-304(a) (2003); see also EL

§10-102. The statute also allowed a voter to vote absentee if

authorized under federal law. EL §9-304(b). 

5

An individual applying for an absentee ballot was required to

certify that he or she was qualified to cast an absentee ballot for one

or more of the statutory reasons. See EL §9-305 (2003). The 6

application read in pertinent part:

To qualify for an absentee ballot, you must

certify by your signature that one or more of

the following statements is or will be true. I

am unable to go to the polls, because on

election day:

1. I may be absent from my county of

registration.

2. I am suffering from an accident, illness,

or physical disability.

3. I am confined in or restricted to an

institution.

4. I am attending to a death or serious illness

in my family.

5. I have academic obligations at an

institution of higher education outside my

precinct, but within my county of

registration.
84 [92 Op. Att’y

 This law, which was passed by the Legislature as House Bill 622 in 7

2005, was vetoed by the Governor on policy grounds. See Veto Letter of

Governor Robert L. Ehrlich, Jr. concerning House Bill 622 (May 20,

2005), 2005 Vetoed Bills and Messages at pp. 636-37. At its next session,

the General Assembly overrode that veto.

6. I am employed by the Board of Elections

and must be absent from the precinct in

which I am registered.

7. I am age 65 or older and my polling place

is inaccessible.

After receiving and completing the absentee ballot, the voter

was to return it in a ballot envelope containing an oath completed by

the voter. EL §9-310(c). That oath reiterated that the voter satisfied

the statutory requirements for absentee voting. It stated:

Under penalty of perjury, I hereby swear

(or affirm) that I am qualified to vote in the

election as stated in my absentee ballot

application; that I have reason to believe that

I will be unable to vote in person on election

day and am entitled to vote by absentee ballot

under Maryland election laws or the

Uniformed and Overseas Citizens Absentee

Voting Act; and that I have not voted and do

not intend to vote elsewhere in this election.

I voted the enclosed ballot and mailed it no

later than the day before the election. 

2. 2006 Legislation

In 2006, the General Assembly substantially rewrote the laws

governing absentee ballots. Chapter 6, Laws of Maryland 2006.7

The bill was entitled “Absentee Voting on Demand” and was

understood to dispense with the eligibility requirements for using an

absentee ballot. See Fiscal and Policy Note to House Bill 622

(February 15, 2005). In particular, it eliminated the specific list of

reasons for voting absentee; nor did it require a voter to give any

reason in the application for voting absentee. See EL §9-305 (2003,

2006 Cum. Supp.). As amended, EL §9-304 simply stated that “[a]n

individual may vote by absentee ballot except to the extent

preempted under an applicable federal law.” 
Gen. 80] 85

 The Legislature originally passed the bill in 2005 as Senate Bill 478. 8

The Governor vetoed the bill. See Veto Letter of Governor Robert L.

Ehrlich, Jr. concerning SenateBill 478 (May 20, 2005), 2005 Vetoed Bills

and Messages at pp. 157-58. The veto was overridden and the bill became

Chapter 5 of the 2006 session. During that same session, the original early

voting legislation was amended, and the amendment was also vetoed by

the Governor. See Veto Letter of Governor Robert L. Ehrlich, Jr.

concerning House Bill 1368 (May 20, 2005), 2006 Vetoed Bills and

Messages at pp. 890-93. That veto was also overridden by the

Legislature. Chapter 61, Laws of Maryland 2006. 

Consistent with the understanding of the statutory

modifications, SBE revised the absentee ballot application to delete

the list of specific reasons for voting absentee. The voter was no

longer required to certify that he or she would be unable to go to the

polls on election day. SBE also developed the current version of the

absentee ballot oath, which requires only that the voter swear or

affirm that he or she is “qualified to vote in the election, and ... [has]

not voted and [does] not intend to vote elsewhere in this election.”

C. The Capozzi Decision

In 2006, the General Assembly enacted, over the Governor’s

vetoes, amendments to the State election law that authorized early

voting – i.e., a voter could vote at specified polling places, not

necessarily in the voter’s own district, for a specified period in

advance of election day without satisfying any special criteria.

Chapters 5, 61, Laws of Maryland 2006, codified at EL §10-301.1.8

The legislation “was intended to give Maryland voters a second

alternative to in-person balloting, absentee voting being the other.”

Capozzi, 396 Md. at 64. 

The early voting law was challenged in court by some

individual voters who argued that it violated various State

constitutional provisions. Because of the impending election, the

case was expedited and, on August 25, 2006, the Court of Appeals

affirmed a circuit court order that declared the early voting law

unconstitutional and void. Lamone v. Capozzi, 394 Md. 305, 905

A.2d 841 (2006). The Court did not issue an opinion at that time

and thus, it was not clear what, if any, implications the decision

might have for how the State conducts absentee balloting. On

December 11, 2006, the Court issued an opinion explaining the

reasoning for its decision. Lamone v. Capozzi, 396 Md. 53, 912
86 [92 Op. Att’y

 The Court also held that primary elections are included within the 9

meaning of “at all elections to be held in this State” in Article I, §1. 396

Md. at 89. Thus, its holdings concerning early voting also extended to

primary elections.

A.2d 674 (2006). In our view, that reasoning affects the

implementation of the absentee ballot law.

In explaining its decision, the Court of Appeals emphasized the

importance of the plain language principle of constitutional

interpretation. Capozzi, 396 Md. at 72-73. The Court held that the

provision of the early voting law authorizing voters to cast ballots

during the week before election day “is clearly inconsistent with the

words of, and the plain meaning of Article XV, §7 and the other

constitutional provisions that designate the ‘Tuesday next after the

first Monday of November,’ as the date of the general election.” Id.

at 76. The Court read §7 to require that “the election shall be held

on a specific day ... [and] any statute that allows for a ballot to be

cast before the prescribed day must be in derogation of the

Constitution.” Id. at 83 (emphasis in original).

The Court also narrowly interpreted the language of Article I,

§1 that states that a voter “is entitled to vote in the ward or election

district in which he resides....” Noting that the early voting law

would enable an individual to vote outside of the voter’s district or

ward, the Court held that the statute violated Article I, §1, because

“[w]e view the language in Article I, §1, as a mandatory

requirement, not as a mere ‘entitlement,’ capable of being waived.”

Id. at 85-86.9

Finally, the Court held that early voting is not a form of

absentee voting authorized by Article I, §3. It stated that “Article I,

§3 clearly indicates that the inability to vote personally applies to

‘absent’ voters, not those who find the voting day to be

inconvenient.” Id. at 90-91.

D. Pending Constitutional Amendment Concerning Absentee

Voting

In response to the Capozzi decision, the General Assembly in

its 2007 session passed a constitutional amendment that would

authorize the Legislature to provide for early voting as an alternative

way of casting ballots in Maryland. Chapter 513, Laws of Maryland
Gen. 80] 87

 Additions made by the amendment are indicated by capitals; deletions 10

are indicated by brackets.

In addition, Article I, §1 of the State Constitution would be amended

 11

as follows:

(continued...)

2007. Under the proposed amendment, Article I, §3 would be

amended as follows :

10

(A) The General Assembly [of

Maryland] shall have THE power to provide

by suitable enactment for voting by qualified

voters of the State of Maryland who are absent

at the time of any election in which they are

entitled to vote [and], for voting by other

qualified voters who are unable to vote

personally, OR FOR VOTING BY

QUALIFIED VOTERS WHO MIGHT

OTHERWISE CHOOSE TO VOTE BY

ABSENTEE BALLOT, and for the manner in

which and the time and place at which such

[absent] voters may vote, and for the canvass

and return of their votes.

(B) T H E G E N E R A L

ASSEMBLY SHALL HAVE THE POWER

TO P R O V I D E BY S U I TAB L E

ENACTMENT A PROCESS TO ALLOW

QUALIFIED VOTERS TO VOTE AT

POLLING PLACES IN OR OUTSIDE

THEIR ELECTION DISTRICTS OR

WARDS OR, DURING THE TWO WEEKS

IMMED IA TELY PRECED IN G AN

ELECTION, ON NO MORE THAN 10

OTHER DAYS PRIOR TO THE DATES

SPECIFIED IN THIS CONSTITUTION.

The proposed amendment thus allows for absentee voting not only

by voters who are absent or “unable to vote personally,” but also by

any voter who chooses to do so. The proposed amendment will be

submitted to the voters for ratification at the 2008 general election.11
88 [92 Op. Att’y

 (...continued) 11

All elections shall be by ballot. [Every] EXCEPT

AS PROVIDED IN SECTION 3 OF THIS

ARTICLE, EVERY citizen of the United States,

of the age of 18 years or upwards, who is a

resident of the State as of the time for the closing

of registration next preceding the election, shall be

entitled to vote in the ward or election district in

which [he] THE CITIZEN resides at all elections

to be held in this State. A person once entitled to

vote in any election district, shall be entitled to

vote there until [he] THE PERSON shall have

acquired a residence in another election district of

ward in this State.

 The State defendants reasoned that early voting was authorized by 12

Article I, §3 because it allows those inconvenienced individuals who are

“unable to vote personally” to vote earlier at a more convenient time. Id.

II

Analysis

You have asked whether the current absentee ballot oath

should be changed in light of the Capozzi decision. In our view, the

absentee ballot forms should be revised to reflect the constitutional

limitations indicated in Capozzi.

As outlined in Part I above, the current oath authorized by SBE

requires only that the voter certify that he or she is qualified to vote

and has not, and will not, cast more than one ballot in the election.

The current application does not require that the voter provide any

reason for casting an absentee ballot or even confirm that the voter

will be absent or unable to vote personally on election day. The

Capozzi decision appears to require that at least the oath include

such elements.

In construing Article I, §3 in Capozzi, the Court of Appeals

distinguished absence from the district or other inability to vote

personally from mere inconvenience. The State defendants had

argued that the phrase “unable to vote personally” in Article I, §3

applies to “anyone who finds the voting time to be ‘inconvenient’ ...

due to work hours, family obligations, and other similar reasons.”12

396 Md. at 90. The Court rejected that argument, holding that “the

inability to vote personally applies to ‘absent’ voters, not those who
Gen. 80] 89

find the voting day to be inconvenient.” Id. at 90-91. At the same

time, the Court acknowledged that a certain degree of inconvenience

may make an individual absent and thus eligible to cast an absentee

ballot. “If the inconvenience is so great as to render them ‘absent’

and prevent them from voting on the election day, these individuals

can vote using an absentee ballot.” Id. at 91. However, the Court did

not elaborate on what degree of inconvenience must be present for

an individual to be considered “absent” and therefore eligible to vote

an absentee ballot. In any event, it appears clear that, in the Court’s

view, Article I, §3 does not authorize an individual to vote absentee

for any reason at all. 

Although the issue of absentee voting was before the Court

only as it related to early voting, the Court’s holding was based on

a rejection of the idea that an individual may vote absentee for any

reason and a recognition that Article I, §3 limits the circumstances

in which an individual may cast an absentee ballot. In our view, the

absentee ballot oath must reflect those limits.

A voter who seeks an absentee ballot out of personal

preference to vote in that manner – or for some other reason

unrelated to absence or personal inability to vote in person on

election day – could apply for a ballot and truthfully ascribe to the

current version of the oath and yet, under the reading of Article I, §3

in Capozzi, would not be eligible to cast a absentee ballot. In light

of the Court’s construction of Article I, §3, this oath should not be

used.

If the current absentee ballot forms based on the 2006

amendment of EL §9-304 are constitutionally deficient, what should

be used in their place? Should SBE revert to the prior forms for the

absentee ballot application and oath that referenced the several

reasons allowed for absentee voting under the former version of EL

§9-304? 

In our opinion, the SBE should not revert to the old version of

the application or a version of the oath that references the specific

reasons in the former version of EL §9-304. In the 2006 amendment

of EL §9-304 the Legislature made clear that it intended to make

absentee voting available to the full extent permitted by the State

Constitution by eliminating the specific reasons for absence or

inability to vote in person that restricted the exercise of the absentee

ballot under the former statute. SBE must give effect to that

legislative intent in carrying out the statute, subject to any

constitutional constraints.
90 [92 Op. Att’y

 The pre-2006 version of the oath may suffice in this regard. See Part 13

I above.

The amended version of EL §9-304 states that an individual

“may vote by absentee ballot except to the extent preempted under

federal law.” Although that language was thought to authorize “on

demand” absentee voting, the reference to voting by absentee ballot

must be interpreted in accordance with the constitutional meaning of

absentee voting. See Koshko v. Haining, 398 Md. 404, 425-28, 921

A.2d 171 (2007) (Court would read into grandparent visitation

statute a presumption favoring parental decisions in order to save

the statute from invalidation on constitutional grounds). The Court

of Appeals’ opinion in Capozzi rejects the proposition that, under the

current language of Article I, §3, the Legislature may permit

absentee voting by individuals who are neither absent nor unable to

vote in person. The Capozzi opinion indicates that the amended

version of the statute would go beyond the constitutional bounds if

it is construed to authorize absentee ballots “on demand.” However,

neither Capozzi nor any other court decision has overturned the

amended version of EL §9-304. In our view, SBE must effectuate

the legislative intent expressed in the 2006 amendments within the

constitutional bounds indicated in Capozzi. 

An appropriate way to do this would be for the absentee ballot

forms to set forth the prerequisite for absentee voting in language

that mirrors that of Article I, §3; in the oath, the voter would certify

that he or she satisfies that condition. In other words, the voter

should swear or affirm that the voter will be absent or will be unable

to vote in person on election day. 

13

If the pending constitutional amendment of Article I, §3 is

ratified in 2008, any constitutional concerns about “on demand”

absentee voting under EL §9-304 will be resolved and that statute

may be given the full effect that was originally intended. See 74

Opinions of the Attorney General 19, 32-33 (1989) (unconstitutional

statute that is not repealed is merely suspended; if basis for invalidity

is removed, it becomes fully effective); 1A Singer, Statutes and

Statutory Construction §22:4 (6 ed. rev. 2002) (unconstitutional th

statute may be validated by constitutional amendment). SBE could

then revert to the current form of oath for absentee ballots or use any

other form consistent with EL §9-304 or any applicable statute.
Gen. 80] 91

If the proposed constitutional amendment is not ratified in

2008, we recommend that the Legislature revisit EL §9-304 in light

of Capozzi. 

III

Conclusion

For the reasons stated above, the absentee ballot oath should

track the language of Article I, §3 – that is, the voter should be

required to swear or affirm that he or she will be absent or will be

unable to vote in person on election day. If an amendment of Article

I, §3 passed by the General Assembly at its 2007 session is ratified

by the voters, the absentee ballot forms should be amended to track

the amended provision or any legislation governing absentee ballots

consistent with that provision.

Douglas F. Gansler

Attorney General

Mark J. Davis

Assistant Attorney General

Robert N. McDonald

Chief Counsel

 Opinions and Advice