Maryland lawmakers have a potential quandary on their hands that is rare, if not unprecedented: Can one of their own vote twice on the same bill?
At issue is a measure that would allow felons to vote while they're on probation or parole. Supporters say it's an important measure to help reintegrate felons into society at a time when lawmakers hope to reduce recidivism and control corrections spending, but opponents say those felons haven't yet paid their debt to society.
Republican Gov. Larry Hogan has vetoed it. The House got just enough votes to override the veto last month.
Here's where it gets tricky: the lawmaker who will likely be the deciding Senate vote was recently appointed to his seat after already voting for the override as a member of the House. While Democrats say recent legal advice of counsel indicates it's OK for the new senator to vote on the bill again in his new role, Republicans aren't so sure.
Sandra Brantley, counsel to the Democratic-led General Assembly, wrote that she believes the vote is fine because each chamber can judge the qualifications of its members.
In a written letter of advice last week, however, she noted a potential counterargument that allowing a legislator to vote twice violates a requirement for the two houses to be "distinct.'' But, Brantley wrote, the "more reasonable and persuasive view'' is that a senator appointed to fill a vacancy may vote as the qualified senator of his or her district.
"I can find no authority in Maryland law or elsewhere that precludes the senator from voting under these circumstances,'' Brantley wrote.
But Sen. J.B. Jennings, the Senate minority leader who asked for the opinion, said the matter could end up being challenged in court.
"This is something that a lot of people are passionate about, and somebody out there could definitely stand up and say, 'This isn't right,''' Jennings, a Republican, said.
Last month, Del. Craig Zucker was one of the 85 votes in the House for the override, the bare minimum needed to reach a three-fifths majority. Zucker, a Democrat, was sworn in last week to replace a retiring senator, whose departure left the body one vote short of the 29 needed for the three-fifths majority.
Zucker was officially appointed to the Senate by none other than the Republican governor, who is required to appoint the candidate chosen by officials of the party of the lawmaker who left the office.
Republicans, who oppose the bill, have been critical of the Senate for twice postponing a vote, which is now set for Tuesday, the third time it has been set.
Last month, when the vote was first postponed, Republican Sen. Stephen Hershey asked on the Senate floor whether the delay was simply a stall tactic so that the appointed senator could take office and give Democrats the needed majority. Senate President Thomas V. Mike Miller's response was succinct: "Yes,'' prompting laughter and applause from supporting senators in the chamber.
The vote was delayed again Friday, after Zucker's appointment, because three Democratic senators were not in the chamber when the measure came up.
"You know, this has been hanging over our head for the last four weeks,'' Jennings said.
But Democrats say every senator in the chamber should be able to vote on the override.
"We would want you to have that same opportunity to cast your red vote for the bill for your constituents,'' Sen. Joan Conway, D-Baltimore, said Friday.