Election of Orphans Court Judges

Submitted by: Ralph Watkins

Legislation has been introduced in the 2024 session of the General Assembly to change the way that Orphans’ Court Judges are elected. Under current law, candidates for Orphans’ Court Judge are nominated by the political parties in the primary and then compete against each other in the general election.  During the primary election, unaffiliated voters have no voice in the selection of nominees, though they do get to choose between the party nominees in the general election. As in previous sessions of the General Assembly, there is a proposal to establish a nonpartisan election of Orphans’ Court Judges. Although it initially appeared that candidates for Orphans’ Court Judge would appear on the nonpartisan section of the ballot, the sponsor’s statement on the bill makes it clear that candidates would only appear on the Democratic and Republican ballots. Thus, unaffiliated voters would continue to be excluded from the nominating process. A second flaw is that the bill provides that the number of candidates nominated in the primary will be equal to the number of offices to be filled. In most elections, this would result in the voters in the general election having no choice – the ballot would say “Vote for no more than three” and there would be only three candidates. Given the low turnout for primary elections, this would mean that Orphans’ Court Judges would be chosen by a small sample of all voters.

LWVMD has long supported nonpartisan elections for Orphans’ Court Judges. LWVMD positions on election procedures also support procedures that are easy for the voter to understand, both in terms of how to vote and how their vote is counted; help ensure minority views and interests have some influence in selecting elected officials; and maximize the power of each voter’s vote. Voters should have meaningful choices rather than being presented with a slate of candidates who will be elected regardless of how they vote.

Similar legislation was passed by the Senate in 2023 but was not taken up by the House of Delegates. The League testified in support of the legislation provided that it was amended to follow the model of Board of Education elections. In those elections, if the number of candidates who file for a seat on the board is more than twice the number to be elected, all candidates appear on the primary election ballot, and the two candidates with the largest number of votes are nominated for the general election ballot. If only two candidates file for the position, they skip the primary ballot and go directly to the general election ballot. This ensures that voters have meaningful choices in the general election and the primary election if one is needed.

As noted, one bill on this subject has already been introduced, and there may be additional bills filed later. The League will again give qualified support, seeking an amendment to ensure that the general election gives voters real choices.

Although the judges of the Orphans’ Court had previously resisted changes in their method of election, following the defeat of several judges when one party’s voters turned out in larger numbers for the general election, support has grown for nonpartisan elections. The judges support the pending legislation because it would make their election similar to that of Circuit Court Judges. There would be significant differences, however, as Circuit Court Judges do not appear on the nonpartisan ballots, and on several occasions, the Republican and Democratic parties have nominated different slates of candidates. For example, where four judges were to be elected, and six candidates sought election, three candidates finished in the top four in both parties, but different candidates won the fourth position. Although it is often the case that both parties nominate the same group of candidates, the result is that general election voters have no natural choice – the ballot instructs them to “Vote for no more than four,” and only four names appear. This makes the election meaningless and undermines voters’ confidence in the process.

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