Elections board asks federal appeals court to uphold lower court ruling

The Maryland State Board of Elections is asking a federal appeals court to uphold a lower court decision dismissing a lawsuit intended to stall the 2024 elections in the state.

In a 43-page response filed for the board Thursday, Assistant Attorney General Daniel M. Kobrin wrote that U.S. District Court Judge Stephanie A. Gallagher was correct when she dismissed the lawsuit earlier this year due to a lack of standing by the groups who brought the action. He went on to say that the lawsuit failed to “raise a cognizable federal question.”

“Although Maryland Election Integrity’s complaint cited federal statutes, it did not plead a ‘substantial’ federal claim, as required for federal jurisdiction to exist,” Kobrin wrote of the plaintiffs. “Some of the allegations it made in connection with federal law were mere requests for relief involving no federal claim.”

The state’s response comes a month after Maryland Election Integrity LLC and Missouri-based United Sovereign Americans filed an appeal of Gallagher’s ruling in the 4th U.S. Circuit Court of Appeals in Richmond.

The two groups originally filed suit against the state board of elections in March in U.S. District Court in Baltimore. That lawsuit alleged a half-dozen violations of state and federal election laws as well as the Maryland Public Information Act.

The lawsuit claimed it found at least 79,392 voter registration violations that allegedly included duplicate registrations, “registrants with questionable inactive status,” and more than 40,000 with “instances of a questionable registration date.”

Additionally, the groups alleged violations of the Help America Vote Act, citing voting system error rates. The groups claimed they found 62,075 “apparent voting system errors in counting votes” in the state’s 2020 general election, and another 27,623 similar errors in Maryland’s 2022 general election.

The group asked Gallagher to issue an injunction preventing the state from conducting the 2024 primary and general elections until the problems were corrected. It also asked the judge to require that the state adopt a specific voter registration system and appoint a special master to oversee the state board’s move to the new system.

Gallagher threw out the lawsuit in May without considering the underlying allegations, ruling instead that the two groups failed to establish any standing that would give them the right to ask for a judicial review.

“Maryland Election Integrity pled that it was a limited liability company with ‘members who are registered voters in the state of Maryland,'” Kobrin wrote in the state response filed Thursday. “The complaint identified only Kate Sullivan, a Baltimore County resident, as a member. It alleged that Ms. Sullivan had observed voter registration discrepancies; that she was ‘personally injured by the inaccurate voter registration records of Baltimore County, and the state, which has allowed otherwise ineligible voters to vote, thus diluting her vote,’ and that she fears ‘threatened injury that her ballot was cast blank without notice to her.'”

Kobrin called that a “hypothetical possibility of harm.”

“The complaint did not allege that Ms. Sullivan knew, or even had any supportable basis to believe, that any ballot she had previously cast was recorded as blank without her knowledge. Indeed, it did not even allege that she had voted,” he wrote.

The lawsuit did not argue that Sullivan had voted in either the 2022 or 2024 election. It also did not claim that candidates or causes supported by Sullivan were defeated due to the allegations.

“Maryland Election Integrity did not plead any direct injury to itself,” Kobrin wrote. “It was created, according to the complaint, ‘for the purpose of resolving violations of Maryland law and restoring trust in Maryland Elections.'”

Kobrin added that a second voter represented by Maryland Elections Integrity — David Morsberger — was never identified as a member of the organization.

Thursday’s filing comes two weeks after the appeals court rejected, without comment, a request by the voter groups to expedite hearings in the case.