Voting Rights for 17 Year Olds

Overview

A registered 17 year old may vote in the Primary Election, provided the individual will be 18 years old on or before General Election. These 17 year olds are entitled to vote for all partisan contests and for school board contests but not in a special election (Washington County's ballot question) or municipal election (City of Cumberland in Allegany County). This information reflects the Court of Appeals' order issued on Friday, February 8, 2008.

Background and Explanation

December 11, 2006 – The Maryland Court of Appeals filed its formal written opinion in Lamone v. Capozzi, the lawsuit that challenged the constitutionality of early voting. One of the questions that the Court addressed was whether early voting, even if it was determined to be unconstitutional, could still be used in a primary election.  The Court, in answering that question, concluded that “primary elections are included within the meaning of ‘at all elections to be held in this State’ in Article 1, §1.”  That section of the Constitution also provides that an individual must be 18 years of age or older to vote.

December 18, 2006 – The Office of the Attorney General wrote an analysis of the ramifications of the Capozzi decision.  That analysis concluded that, since the Court of Appeals determined that primary elections must comply with Article 1, §1 of the Maryland Constitution, it is unconstitutional to allow 17 year olds to vote in primary elections (as required under Election Law Article § 3-102(a) of the Annotated Code of Maryland).  Based on this advice, the State Board of Elections began to administer the law accordingly and notified 17 year old voters who would not be 18 years old or older by the 2008 Presidential Primary Election that they were not eligible to vote in that election.

December 19, 2007 – The Attorney General, in response to an inquiry by State Senator Jamie Raskin dated December 17, 2007, drafted a second letter of advice on the issue of allowing 17 year olds to vote in primary elections.  In the opinion, the Attorney General reaffirmed the advice previously given that voters must be 18 years of age or older to vote in primary elections.  However, because the Democratic and Republican Parties (on December 10, 2007) asserted their federal constitutional rights to freedom of association, the Attorney General concluded that prohibiting 17 year olds from registering and voting in a primary election violated the political parties’ First Amendment associational rights to include in their primary elections certain voters under the age of 18.  Based on this new interpretation, the members of the State Board of Elections convened on December 20, 2007, and determined to follow the advice of the Attorney General and allow 17 year olds who will be 18 on or before the Presidential General Election to register and vote in the upcoming Presidential Primary Election.

January 2, 2008 – In Attorney General Doug Gansler's letter to Senator Raskin, he concluded that, "SBE should implement § 3-102(a) as it has in the past - by registering and allowing to vote those persons who are at least 18 years old or will be 18 years old on or before the day of the next succeeding general or special election."  In the past, all 17 year olds who would be 18 years old or older on or before the next general election were permitted to vote in a primary election.  This included allowing 17 years olds who were unaffiliated with either the Democratic or Republican Parties to vote in a non-partisan (i.e., school board or municipal) election. 

Since the basis for allowing 17 year olds to vote in a primary election is the associational rights of the principal political parties, staff members asked for clarification on whether a 17 year old voter who will be 18 on or before the next general election and who is unaffiliated with the Democratic or Republican Parties is permitted to vote in a primary election.  Similarly, clarification was requested on whether a 17 year old who will be 18 on or before the next general election and who is affiliated with either the Democratic or Republican Party can vote for any non-partisan primary contests on the ballot (i.e. school board or municipal contest).

January 3, 2008 – The Office of the Attorney General advised that 17 year olds who will be 18 on or before a general election may vote in a primary election only if they are affiliated with either the Democratic or Republican Party and may only vote for partisan contests – not non-partisan contests.  Following this advice:

• A 17 year old who is not affiliated with either the Republican or Democratic Party is not registered and may not vote in a primary election; and


• A 17 year old who is a Democrat or Republican may vote in a primary election.  However, if the voter lives in Allegany, Calvert, Carroll, Cecil, Frederick, Howard, Montgomery, Queen Anne’s, Talbot, or Washington Counties (counties with non-partisan contests on all or some of the Presidential Primary Election ballots), the voter must vote by provisional ballot so that the local board of elections can ensure that he or she did not cast any votes in the non-partisan contests.  If a vote was cast in a non-partisan contest, this vote will not be counted, and only votes that the 17 year old is entitled to cast (i.e., partisan contests) will be counted.

See chart for further clarification.

February 1, 2008 - A lawsuit was filed in the Anne Arundel County Circuit Court by the fathers of two 17 year old voters. The lawsuit challenged the State's position of not allowing the 17 year olds to vote in non-partisan elections. The Circuit Court declared that the voter eligibility requirements of Article I, §1 of the Maryland Constitution do not apply to non-partisan elections for Boards of Education, municipal elections, and local ballot questions that are not mandated by the Constitution. Accordingly the Court ordered that all 17-year old voters, whether or not affiliated with any political party, who will be 18 on or before the general election, shall be entitled to vote in both the partisan and non-partisan elections effective February 12, 2008.

Due to the late date of this court order, it is not possible to change the electronic pollbook programming to allow 17 year old voters to vote on the touchscreen voting units. A provisional ballot will be issued.

February 8, 2008 - The Maryland Court of Appeals, the State's highest court, heard arguments on this issue and issued an order that all registered 17 year olds are entitled to vote for school board contests. Seventeen year olds are not, however, eligible to vote in Washington County's special election (charter ballot question) or the City of Cumberland's municipal election. There will be notices in polling places in Washington County and the City of Cumberland alerting these voters that they may not vote for the local ballot question or municipal election. If a 17 year old votes for one of these contests, the vote for this contest will not be counted but the remainder of the ballot will be counted.

See chart for further clarification.

Questions and Answers for Provisional Voters

How will you know whether your ballot is counted?
You can go online 10 days after election day to the State Board of Elections’ website (www.elections.state.md.us) to find out whether your provisional ballot application was accepted and whether it was counted.  Please note that Maryland always counts provisional and absentee ballots, regardless of whether or not they will make a difference in the outcome of the election.

How will the privacy of your vote be protected?
The local boards of elections take great care to open and remove provisional and absentee ballots in a manner that protects the secrecy of the voter’s ballot.  For example, the voted absentee or provisional ballot is separated from the absentee or provisional ballot envelope before any ballot review is conducted.

Detailed Clarification