Fate uncertain for ‘compromise’ bill for special elections to fill state legislative vacancies

February 14, 2024


Del. Foley’s bill draws support from reform advocates; Sen. Kagan says more expansive legislation is likely to be shelved

A woman in red lowering her glasses

Maryland State Sen. Cheryl Kagan, sits at her desk in the Senate Chamber at the Maryland State House in Annapolis, MD. Credit: Photo by Mary F. Calvert for The Washington Post via Getty Images

The fate of a bill in the Maryland General Assembly to give voters a say in filling vacancies in the legislature—a process now firmly in the hands of local political party committees—remains uncertain with two months left in the session.

But, after two recent legislative hearings, advocates of moving toward a special elections process to fill such vacancies are coalescing around a plan—labeled a “compromise” by its sponsor—intended to prevent legislators appointed by party committees from serving almost an entire four-year term without facing the voters.

District 17 Sen. Cheryl Kagan (D-Rockville), sponsor of legislation requiring special elections whenever vacancies occur in the first three years of a four-year term, has acknowledged that her broader proposal faces an uphill climb this year.

Although a vote on the matter has not yet been scheduled in the Senate Education, Energy and the Environment Committee—which has jurisdiction over the issue—any action by that panel is expected to involve substituting Kagan’s proposal with a more incremental plan sponsored by District 15 Del. Linda Foley (D-Potomac).

The Foley bill—similar to legislation that cleared the Maryland Senate unanimously in 2021 and 2022, but did not advance in the House of Delegates—would require legislators appointed early in a four-year legislative term to stand for election at the term’s midpoint. A special primary and general election would coincide with the voting schedule in a presidential election year.

While contending advocacy groups such as the League of Women Voters and Common Cause “have been clear in expressing” that they see her bill as the preferred solution, Kagan added in an interview: “I also think it’s a better solution, but a dead bill doesn’t move the issue forward. …As anyone who’s ever been active in politics or policy surely understands, …moving the needle a little bit and making some progress is still an accomplishment.”

In testimony last week before the Ways and Means Committee—the panel of jurisdiction in the House—Nikki Tyree, executive director of the Maryland League of Women Voters, echoed Kagan’s comments. Noting the league had supported moving to special elections to fill legislative vacancies for nearly four decades, Tyree added: “We were thrilled by Sen. Kagan’s bill. However, we are fully capable of recognizing that while Sen. Kagan’s bill would be excellent for Maryland, Del. Foley’s bill is a more practical approach.”

In her testimony before the Ways and Means panel, Foley said her bill “is actually a compromise,” adding, “You’ll hear some testifying today that they believe that special elections should be held for every General Assembly vacancy that occurs during a four-year term. However, that approach would require large expenditures by local elections boards, and would likely result in very low turnout elections that don’t accurately reflect the will of the voters.”

Her testimony followed a legislative staff analysis—in a “fiscal note” attached to Kagan’s bill—suggesting that the cost of a single special election to fill a legislative vacancy could exceed $400,000, with more than $250,000 of that borne by local jurisdictions, even if mail balloting is largely relied upon. Foley’s bill avoids such costs by piggybacking on the already scheduled presidential primary and general election dates.

At present, the three states bordering Maryland—Delaware, Pennsylvania and Virginia—are among 25 states that hold special elections whenever a mid-term state legislative vacancy occurs.  In her testimony, Foley said her bill would bring Maryland into line with 10 other states that now utilize special elections under some circumstances.

Foley’s proposal would require an amendment to the Maryland constitution that would have to be approved by the voters this November. But first, it will have to clear the House of Delegates, where it has encountered resistance in past years: One stumbling block has been concerns within the state’s Legislative Black Caucus over whether moving away from the current appointment system could have an adverse effect on efforts to increase diversity in the General Assembly membership.

The Montgomery County Democratic Central Committee (MCDCC) – of which Foley is a former chair – has not taken a formal position on this bill; sentiment on moving toward special elections appears mixed among local political committees around the state, given the nearly absolute power they now exercise over filling legislative vacancies.

At the same time, support for special elections has intensified within Montgomery County since the MCDCC was called upon to fill five legislative vacancies in the first half of 2023, allowing those appointees to serve three and a half to four years without going before the voters.

Members of the Ways and Means Committee were noncommittal during their questioning last week of Foley and other witnesses favoring her bill. In her testimony, Joanne Antoine, executive director of Maryland Common Cause, while urging support for Foley’s bill, alluded to similar proposals failing twice to emerge from the Ways and Means panel in recent years after overwhelming approval in the Senate.

“My hope is that we’ll move forward with a favorable report, but, if not, I think knowing what the committee is willing to explore would be helpful,” Antoine said, declaring, “I think Marylanders have been letting us know over and over again that they want something to happen” on moving toward special elections to fill legislative vacancies.

According to Foley, her bill is the latest in a series of similar proposals dating back to 2008, when such a plan was introduced by two Montgomery County senators—Democrats Richard Madaleno, currently the county’s chief administrative officer, and Jamie Raskin, now the District 8 U.S. House member representing three-quarters of the county.

In her testimony, Foley appeared to reach for the political coattails of Raskin, who she noted has emerged as a high-profile “advocate for more democracy and voter engagement as he’s continued this career upward.

“Obviously, the bill is democratic enough for now-Congressman Raskin, and it’s democratic enough for me,” Foley declared. “So I urge you to…join me and Congressman Raskin in supporting more democracy and having the voters have some say-so over how we fill these vacancies.”

To read more about the history and politics surrounding the debate over moving to special elections, as well as some of the reform proposals that have been put forth, see:

MoCo Politics: Parties exert stranglehold on General Assembly vacancies. Is 2024 the year of change?