A political time-bomb? Is there a time-bomb ticking in the Maryland Attorney-General race? The Maryland Court of Appeals dismissed a suit that sought to have Doug Gansler, the Democratic candidate, declared ineligible to serve because he allegedly fails to meet the Constitutional requirement of residing and practicing law in the State for ten years. The Court vacated a lower court decision that found that Gansler was qualified to be Attorney-General, but the Court determined it was too late to consider whether Gansler could be removed from the ballot. Basically, the Court saw the timing of the suit as a ridiculously dirty trick that they weren't going to condone by seriously entertaining the question.

While this sounds like good news for the Democratic candidate, Gansler, the court's decision really punts the issue up to the Republican Governor, Bob Ehrlich. The decision means that Governor Ehrlich will have the opportunity later to disqualify Gansler, after Gansler’s inevitable victory. Ehrlich would then be free to appoint a replacement.

Under Article V, sec. 4 of the Constitution of Maryland: “No person shall be eligible to the office of Attorney General, who is not a citizen of this State, and a qualified voter therein, and has not resided and practiced Law in this State for at least ten years.” Gansler has been the State’s Attorney for Montgomery County for the last eight years. Before that he was an Assistant United States Attorney in the District of Columbia. Gansler has argued that his residence and membership in the State bar should be sufficient to meet the requirement. The lower court found that Gansler had practiced law in Maryland for 10 years, having done some legal work for family and friends and as a volunteer for a local African-American non-profit.

It is unclear if the Court of Appeals' decision, to dismiss the suit entirely, suggests any view of the top court, regarding the lower court’s findings of fact and law. The decision does mean that Gansler will remain on the ballot, and polls show him with a commanding twenty percent lead over Scott Rolle, Gansler's Republican opponent. Rolle has denied his campaign was involved in the lawsuit, even though his campaign manager represented the plaintiff in the case. Gansler has said he doesn’t know that Gov. Ehrlich had anything to do with the suit.

Still, the decision appears to leave as an open question whether or not Gansler is qualified to be Attorney-General. According to Article V of the Constitution, section 2: the Attorney-General election returns go to “the Governor of the State, whose duty it shall be to decide on the election and qualification of the person returned.” Furthermore, according to Section 5 of the same Constitutional article: “In case of vacancy in the office of Attorney General, occasioned by death, resignation, removal from the State, or from office, or other disqualification, the Governor shall appoint a person to fill the vacancy for the residue of the term.”

In today’s Washington Post, a state constitutional expert, Dan Friedman is quoted as saying “Dan Friedman, an expert on the state constitution who assisted Gansler's attorneys in preparing arguments for the high court, said the exact meaning of the language ‘is an open question of Maryland law, but I believe that the governor's job is just to swear in the winner of the election.’” http://www.washingtonpost.com/wp-dyn/content/article/2006/11/02/AR2006110201820.html. That’s an interesting comment, but it seems to contravene the language of the constitutional provision. I would question whether the Governor has the final word, though. If he were to decide that Gansler was not qualified, I believe Gansler would have the right to challenge that decision in Maryland courts, where he has previously prevailed.

According to the Post article, Gansler “dismissed the possibility that the governor might refuse to qualify him.” If Ehrlich is defeated on Tuesday, I would not be certain that he will be interested in making nice with the Democratic opposition. Gansler has a promising career ahead in Maryland electoral politics, and the GOP would be delighted to derail this career. It is certainly easy to envision Ehrlich, arguing that it is incumbent on him to enforce the constitution, claiming he must disqualify Gansler’s election or set a bad constitutional precedent by deciding Gansler is qualified.

After Election Day, Ehrlich will be forced to make a choice. He can certify Gansler's win, saying that the lower court has already decided the issue. Or, he can disqualify Gansler, in which case he will have to choose whether to appoint another Democrat in his place, or to go partisan and pick a Republican.

The choice will be especially stark, if Ehrlich loses to O'Malley in his own race. Ehrlich may have to choose whether he will go out as a consensus-building statesman, with the respect of most Maryland voters, who respected the will of the voters, or as a street-fighting political thug, whose last act was to play to the far right-wing of his party -- a hero to those who want to play as dirty as can be.