Who counts as a qualified voter for signing a Maryland town's annexation referendum petition: someone registered before the vote, or anyone who registers in time?

Plain-English summary

In 1987, the President of the Commissioners of Poolesville asked the Attorney General who could sign a petition seeking a referendum on one of the town's annexation resolutions. Under Article 23A, §19(g), a referendum could be forced by a petition signed by 20 percent of the "qualified voters of the municipal corporation" within 45 days of the resolution's enactment. The town wanted to know whether someone had to have been a qualified voter as of the town's last election to sign, and whether someone who registered to vote during that 45-day window could sign and vote in the referendum.

The Attorney General agreed with the town attorney that a person's voter qualification should be measured at the moment the person signs the petition, not at some earlier point like the last town election. The opinion reasoned that the statute's requirement that the town "verify" petition signatures against the qualified-voter rolls implied the relevant question was whether the signer was qualified at the time of signing, and that Poolesville's own charter, which allowed continuous voter registration up to 30 days before an election, meant someone who registered within the 45-day referendum window could still sign the petition and vote in the referendum itself.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could someone who wasn't registered to vote at a Maryland town's last election still sign an annexation referendum petition?
According to this 1987 opinion, yes, so long as the person met the municipality's voter qualifications at the time the petition was actually presented for signature; qualification at some earlier election was not the test under Article 23A, §19(g).

Could a newly registered voter sign a petition and vote in the annexation referendum itself?
The opinion concluded yes, where the town's charter (like Poolesville's) allowed continuous registration up to 30 days before an election, since the referendum election could not be scheduled sooner than that window allowed.

Who decides who counts as a "qualified voter" for a Maryland municipal referendum?
The opinion concluded that the municipal charter, not state law generally, defines who is a qualified voter, since Article 23A, §9(d) ties that term to whoever a municipal charter authorizes to vote in that municipality's elections.

Background and statutory framework

Article 23A, §19(b) lets a municipality's legislative body enlarge its boundaries by resolution, but §19(g) subjects that resolution to a referendum if 20 percent of the "qualified voters of the municipal corporation" petition for one within 45 days, triggering a signature verification process and suspension of the resolution's effectiveness pending the vote. Article 23A, §9(d) defines "qualified voter" by reference to whatever a municipal charter itself authorizes, reflecting that Maryland municipalities generally set their own election qualifications and procedures under Article 23A, §2(b)(29) and the residual home-rule grant in Article XI-E, §3 of the Constitution.

The opinion traced the statute's legislative history: when first introduced as 1955 Senate Bill 5, the referendum trigger used the term "registered voters," but an amendment changed it to "qualified voters" and added the §9(d) definition, which the opinion read as accommodating municipalities that do not require registration at all, not as barring a municipality from making registration one of its qualifications, citing Board of Supervisors of Elections v. Goodsell. Because §19(g)'s verification requirement checks whether a signer is a qualified voter "thereon," the opinion concluded, drawing an analogy to the verification standard discussed in Barnes v. State ex rel. Pinkney, that the relevant qualification date was the moment of signing, not any earlier cutoff. Applying that rule to Poolesville's charter, which under §82-6C allowed continuous registration up to 30 days before an election and could not schedule a referendum election sooner than that window given required advertising periods, the opinion agreed with the town attorney that anyone who registered within the 45-day petition period could still sign the petition and vote in the referendum.

Citations

Statutes:

• Article 23A, §19(g) (referendum petition requirement: 20% of qualified voters within 45 days of an annexation resolution)
• Article 23A, §19(b) (municipal legislative body may initiate annexation by resolution)
• Article 23A, §19(i) (minimum interval before a referendum election may be held)
• Article 23A, §19(f)-(l) (annexation referendum procedures generally)
• Article 23A, §19(r) (municipality's authority to set procedures for conducting and tabulating a referendum)
• Article 23A, §9(d) (defines "qualified voter" by reference to the municipal charter)
• Article 23A, §2(b)(29) (municipality's authority to provide for special elections)
• Article 33, §1-1(a)(6) and §3-4 (state election law provisions distinguishing registration from qualification, cited by comparison)
• Md. Const. art. XI-E, §3 (residual home-rule grant of governmental authority to municipalities)
• Poolesville Charter §82-6A, §82-6C, §82-6D (Town's voter qualification and continuous-registration provisions)

Cases:

• Hanrahan v. Alterman, 41 Md. App. 71, 78 (1979)
• Barnes v. State ex rel. Pinkney, 236 Md. 564 (1964)
• Board of Supervisors of Elections v. Goodsell, 284 Md. 279, 284-85 (1979)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government—Municipal Corporations—Annexation Procedures—Referendum Petition—Voter Who Meets Municipality's Qualifications For Voting At Time Petition Is Circulated May Sign Petition.

September 30, 1987

Charles W. Elgin, Sr., President
The Commissioners of Poolesville

You have requested our opinion concerning the qualification of voters to sign a petition seeking a referendum on an annexation resolution. Your question turns on the meaning of "qualified voters of the municipal corporation" in Article 23A, §19(g) of the Maryland Code. Specifically, your questions are:

1. May a person who is a qualified voter of the Town of Poolesville on the date an annexation resolution is enacted sign a referendum petition, even though the person was not a qualified voter at the time of the last regular or special election in the Town?

2. If so, may a person who registers to vote within the 45 day period immediately following the enactment of an annexation resolution sign a referendum petition and vote in the referendum?

The Town Attorney, Richard S. McKernon, Esquire, has stated his opinion as follows with regard to your questions:

"[A]ny person who is a qualified voter of the Town of Poolesville on the date a referendum petition on an annexation resolution is presented for signature may sign that petition regardless of the fact that such person was not a qualified voter at the time of the last town regular or special election. It is also my opinion that under the provisions of the Poolesville Charter any otherwise qualified person may register to vote and sign a referendum petition during the 45 day period following the enactment of annexation resolution." Letter to Jack Schwartz, Chief Counsel for Opinions and Advice, at 1 (August 25, 1987) (copy attached).

For the reasons stated below, it is our opinion that, under Article 23A, §19(g), a voter who meets the qualifications for voting specified in the municipal charter at the time a referendum petition is presented for signature may sign the petition, even if the voter (i) was not a qualified voter at the last election or (ii) became a qualified voter after enactment of the resolution. The qualifications for voting in the Poolesville Charter are consistent with this requirement. Accordingly, we concur with Mr. McKernon's conclusions.

I
Discussion

An enlargement of a municipality's boundaries "may be initiated by resolution regularly introduced into the legislative body of the municipal corporation . . . ." Article 23A, §19(b). However, the resolution is subject to referendum if 20 percent of "the qualified voters of the municipal corporation" sign a petition calling for a referendum:

"At any time within the forty-five (45) day period following the final enactment of the resolution, a number of persons equal to not less than twenty per centum (20%) of the qualified voters of the municipal corporation may, in writing, petition the chief executive and administrative officer of the municipal corporation for a referendum on the resolution. Upon the presentation of a petition to the officer, he shall cause to be made a verification of the signatures thereon and shall ascertain that the persons signing the petition represent at least twenty per centum (20%) of the qualified voters of the municipal corporation. Upon verifying that the requirements of this subsection have been complied with, the officer shall by proclamation suspend the effectiveness of the resolution, contingent upon the results of the referendum." Article 23A, §19(g).

In general, the determination of who is a "qualified voter" is to be made by reference to the qualifications set out in the charter of the municipality. Article 23A, §9(d) provides that "the term 'qualified to vote' or 'qualified voter' shall mean those persons who under the terms of a municipal charter shall be authorized to vote in elections within that municipal corporation."1 The question of State law that you raise is whether a municipality may, in effect, cut off the qualification of voters prior to enactment of the resolution.2

We believe that §19(g) contemplates that the qualification of the voter is to be measured at the time the voter signs the petition. The requirement that the municipality make "a verification of the signatures thereon" implies as much. As in other like situations, the "verification" is whether the signature is that of a voter on the registration rolls at the time that he or she signed. Cf. Barnes v. State ex rel. Pinkney, 236 Md. 564 (1964).

A voter's failure to be qualified at some prior election is not relevant to his or her qualification at the time of signing. While a town is free to establish reasonable procedures regulating voter registration, including periods when the registration books are closed, we believe that these procedures may not defeat the statutory purpose of allowing the requisite percentage of the contemporary electorate to bring about a referendum.

As the Town Attorney points out, the Poolesville Charter permits "continuous registration." Residents may register "up to and including thirty (30) days prior to any election or vote held in conjunction with the municipal activities of the Town of Poolesville. . . ." §82-6C. We also agree with the Town Attorney that this same provision means that persons who register to vote within the 45 day period immediately following the enactment of an annexation resolution may legally sign a referendum petition and vote in the ensuring referendum, which could not be held sooner than 30 days after the end of this 45 day period. See Article 23A, §19(i).

II
Conclusion

In summary, we agree with the Town Attorney that any person who meets the qualifications for voting set out in the Poolesville Charter at any time during the 45 day period following enactment of an annexation resolution may sign a petition calling for a referendum on the petition and may vote in the referendum election itself.

J. Joseph Curran, Jr., Attorney General
Jack Schwartz
Chief Counsel
Opinions and Advice

August 25, 1987

Jack Schwartz, Esquire
Chief Counsel
Opinions and Advice
Office of the Attorney General

Dear Mr. Schwartz:

Recently the Town of Poolesville requested the opinion of your office as to whether anyone who is a qualified voter of the town on the date an annexation resolution is enacted may sign a referendum petition regardless of the fact that the person in question may not have been a qualified voter at the time of the last town regular or special election. Assuming an affirmative answer to the first question, your opinion was also requested as to whether persons who register to vote within the 45 day period immediately following the enactment of an annexation resolution may legally sign a referendum petition.

You have stated in an August 17, 1987 letter to the President of the Commissioners of Poolesville that you will require my professional opinion on the above questions before the issuance of an opinion by your office.

For the reasons set forth below it is my opinion that any person who is a qualified voter of the Town of Poolesville on the date a referendum petition on an annexation resolution is presented for signature may sign that petition regardless of the fact that such person was not a qualified voter at the time of the last town regular or special election. It is also my opinion that under the provisions of the Poolesville Charter any otherwise qualified person may register to vote and sign a referendum petition during the 45 day period following the enactment of an annexation resolution.

The provisions of State law governing petitioning annexation resolutions to referendum are contained in Sections 19(f)-(l), and (r) of Article 23A of the 1957 Annotated Code of Maryland. Section 19(g) provides for a referendum on an annexation resolution by a petition signed by at least 20% of the qualified voters of the municipal corporation. Nowhere in Section 19 or in Article 23A is the term "qualified voter" defined. On the contrary, Section 19(r) appears to leave this determination to the municipalities by providing as follows:

"(r) Conduct of election; tabulation of results; expenses. The mayor and council, by whatever name known, of every municipal corporation is hereby authorized and empowered, by ordinance, resolution or regulation, to make proper provision for conducting, and for tabulating the results of any referendum to be held under the provisions of this section. The mayor and council of the municipal corporation shall pay in full for the expenses of any referendum".

The foregoing conclusion is further supported by the fact that Section 2(b)29 of Article 23A authorizes municipalities, "to provide for special elections for municipal purposes, at such times and places as may be determined, and subject to the provisions of the charter of said municipality". Further authority for municipal control over its electoral process and voter qualification is found in the general grant of governmental authority in Section 3 of Article XI-E of the Constitution of Maryland.

Pursuant to the foregoing grants of authority the Town of Poolesville has provided in Section 82-6D of its charter, a copy of which is enclosed, that persons may register to vote "up to and including thirty (30) days prior to any election or vote held in conjunction with municipal activities of the Town of Poolesville or for the election of Commissioners". The definition of what constitutes a qualified voter appears in Section 82-6A and 82-6D of the Town Charter which provides:

A. Definitions. All persons who have been properly registered as hereinafter provided shall be qualified voters of the Commissioners of Poolesville, hereinafter refered to in this Section as the "Town of Poolesville".

D. Qualification of voters. Residents of the Town of Poolesville shall be registered and qualifed as voters if they are citizens of the United States of America, over the age of eighteen (18) years on or before the date of election, residents of the Town of Poolesville for thirty (30) days preceding an election, have not been convicted of an infamous crime (unless pardoned by the Governor), and are not under guardianship proceedings or a judgment of non compos mentis.

Based on the foregoing provisions of State law, it is my opinion that the Town of Poolesville has the right to determine who is a qualified voter who may legally sign a referendum petition on an annexation resolution. The Town, in my opinion, also has the authority to determine at what point in time registration will be closed for persons who want to become qualified voters for purposes of signing a referendum petition on an annexation resolution. The Town of Poolesville has specified in Sections 82-6A and D of its Charter the qualifications of voters and has further provided in Section 82-6C that persons may continue to qualify to vote up to and including thirty days prior to any election. Since an election on a referendum petition on an annexation resolution cannot be scheduled until the election has been advertised for two successive weeks and an additional 15 days have elapsed, people who register within the 45 day period after enactment of the annexation resolution may legally do so under Section 82-6C of the Poolesville Charter.

I trust that the foregoing opinion will assist you in rendering an opinion on the questions presented. The Commissioners of Poolesville have had two annexation resolutions under consideration for some time and need to have a prompt response from your office to enable them to quickly and carefully take final action on the resolutions. Please call me if you need any additional information.

Very truly yours,

Richard S. McKernon, Town Attorney

1 Article 23A, §9(d) reflects the fact that municipalities are generally free to establish their own qualifications and procedures for municipal elections. See Article 33, §1-1(a)(6); Article 23A, §2(b)(29); Hanrahan v. Alterman, 41 Md. App. 71, 78 (1979). See also 55 Opinions of the Attorney General 84 (1970).

2 When originally introduced as Senate Bill 5 in the 1955 Session of the General Assembly, the Municipal Home Rule Act provided that an annexation resolution was to be put to referendum if the requisite number of "registered voters of the municipal corporation" signed the petition. By amendment, the term "registered voters" was changed to "qualified voters." Also by amendment, the definition of "qualified voter" in §9(d) was added.

In general, registration is not itself a qualification. See, e.g., Article 33, §3-4. By substituting the word "qualified" for the word "registered," the General Assembly might be taken to have intended that persons meeting a municipality's requirements on matters like age and residency are entitled to sign a referendum petition (and vote in the ensuing election) even if they are not registered.

However, we think that, in this context, the change from "registered" to "qualified" need not, and should not, be read as precluding a municipality from establishing registration as a qualification. This change, coupled with the definition in §9(d), is better understood as an accommodation of municipalities that may not require registration at all. But §§9(d) and 19(g) leave a municipality free to establish registration as one such qualification. See Board of Supervisors of Elections v. Goodsell, 284 Md. 279, 284-85 (1979).