Commentary: How to address the democracy deficit caused by legislative vacancies

February 20, 2024

Maryland Matters

By Edward Fischman

The writer is a member of the Montgomery County Democratic Central Committee.

For perhaps the first time, activists who have spent years advocating for special elections to fill General Assembly seats are getting a serious hearing. For the first time, the legislature is considering a bill that would have aligned Maryland with the 50% of states that use special elections to fill most or all open seats in state legislatures.

While the bill’s sponsor, Sen. Cheryl Kagan (D-Montgomery), has acknowledged it may not move this year, a more moderate reform bill passed in prior years in the Senate may finally move forward in the House.

That bill would allow local party central committees to select one applicant to fill vacant seats temporarily, but require a midterm special election for all vacancies filled that way in the first year of a legislative term, to be held along with the presidential primary.

The compromise approach would put Maryland in a group with 17 states that employ special elections under limited circumstances. More vacancies happen in that first year after a new governor is elected, because the governor taps legislators to fill out key posts in the administration. That was true after Wes Moore was elected in November 2022.

I am a member of the Montgomery County Democratic Central Committee, and we nominated five new legislators, a record number of new appointees in one year from our county. That experience has caused the legislature to take notice of this democracy deficit and seek reforms to a process that far too often serves up appointees to the electorate as incumbents in the next election cycle. Currently, half the members of Montgomery County’s delegation were appointed to either House or Senate seats.

The midterm special election would be a step in the right direction, as it would mean no appointees would serve through all four legislative sessions in a cycle without ever facing voters, but it does little to fix the incumbency problem, which has appointees running as incumbents even though they were not elected to their seats. The appointees typically run with the other members from their district as a slate.

While voters do consider candidates individually, campaign materials advertising a slate are very effective in getting votes for each member in the slate. The special election would mean that appointees would have to run on their own. Though they may get the public support of the other members in the delegation, they’re more likely to be judged on their own merits in this situation.

One objection House members have voiced in prior years is members are prohibited from raising money during session. Having a primary on the heels of the end of session will be too much of a disadvantage for incumbent appointees who want to stand for the seat in a special election. Some also worry that special elections will disadvantage women candidates and candidates of color.

Under the compromise bill, appointees during the last three years would not even face a special election. They may continue to slate up with the other members in the next gubernatorial primary.

So this proposal creates a new problem for first-year appointees and raises concerns about reinforcing glass ceilings, and does not even address the problem of members appointed in the last three years.

There is a potential fix which would address legislators’ concerns about a special election, while also fully addressing the incumbency advantage democracy deficit.

Special elections reform requires amending the Maryland Constitution, but we can address the incumbency problem by also directing that those appointees may only serve as placeholders, ineligible to run in the next election.

This reform could apply to appointees running in either a special election or regular primary general election. This would erase the incumbency electoral advantage for appointees. Central committees would still select people to hold vacant seats temporarily. In the next election, voters would be presented with a clean slate to choose from.

This would be a first-in-the-nation reform, but it is hardly a radical, unprecedented idea. Appointees at every level of government have seen wisdom in declaring they would serve as placeholders.

When U.S. Sen. Dianne Feinstein (D-Calif.) passed away in November during a primary fight to replace her, California Gov. Gavin Newsom (D) appointed someone to the seat who was not running in the primary. The newly appointed senator soon announced she would not stand for election.

That was the ideal result, but it should not depend on the whims of the appointee. It should be enacted in law. Filling a vacancy temporarily with placeholders may be the best of all possible worlds.