"Glendening seeks dismissal of Sauerbrey suit." The Baltimore Sun, 31 December 1994.

The Baltimore Sun December 31, 1994, Saturday,

December 31, 1994, Saturday, FINAL EDITION

SECTION: LOCAL (NEWS), Pg. 1B

LENGTH: 937 words

HEADLINE: Glendening seeks dismissal of Sauerbrey suit

BYLINE: John W. Frece, Sun Staff Writer

BODY:

Lawyers for Gov.-elect Parris N. Glendening and for state and local election officials asked a state court yesterday to throw out Republican Ellen R. Sauerbrey's challenge to the Nov. 8 gubernatorial election.

Mr. Glendening's lawyers argued that the Sauerbrey forces missed deadlines to challenge the qualifications of voters before the election, to challenge voters at the polls on Election Day and to challenge disputed absentee ballots after the election. They therefore cannot raise such objections now, the lawyers said.

Mrs. Sauerbrey's suit, filed Dec. 27 in Anne Arundel County Circuit Court, asks the court to award her the election or order a new election. "The petitioners have slept on their rights," Mr. Glendening asserted in a thick legal memorandum.

The work was compiled by a team of nine lawyers headed by George A. Nilson of Piper & Marbury in Baltimore and Bruce L. Marcus of Marcus and Bonsib in Greenbelt.

The Glendening team said the bulk of voting irregularities suggested in the Sauerbrey lawsuit "are the result of (at worst) excusable neglect, or do not involve intentionally wrongful acts or acts of fraud by voters, election officials or others." Moreover, Mrs. Sauerbrey is not alleging that the Democratic candidates were at fault for such irregularities, they said.

Even if the defeated Republican candidate proved that wrongfully registered voters cast ballots, she has "not alleged, and cannot prove" that such voters cast ballots for the Glendening-Kathleen Kennedy Townsend ticket or, for that matter, voted in the governor's race at all, the papers said.

In a separate filing, attorneys representing the state election board, the State Board of Canvassers and the election boards of Baltimore City and Montgomery and Prince George's counties argued that the Sauerbrey suit should be dismissed because it should not be before the courts at all.

Attorney General J. Joseph Curran Jr., the head of another team of seven lawyers representing public officials, said that under the state constitution, only the House of Delegates has legal jurisdiction to decide the outcome of a disputed gubernatorial election.

"In seeking dismissal of this action, [we] are not saying that petitioners are not entitled to an opportunity to present whatever evidence they have and to a hearing on their claims," Mr. Curran's memorandum said. The issue, he said, is not whether there should be a hearing, but where.

The Sauerbrey forces "are in the wrong forum," he said. "If they wish to contest the gubernatorial election, they must do so in the House of Delegates."

Mrs. Sauerbrey's lawyers did not return repeated telephone calls seeking comment.

The lawsuit filed by Mrs. Sauerbrey, a four-term delegate from Baltimore County, alleges that about 11,000 votes in the three jurisdictions Mr. Glendening carried -- Baltimore and the two populous suburban Washington counties -- were cast improperly and, in some cases, fraudulently.

The Board of Canvassers declared Mr. Glendening the winner of the election by 5,993 votes out of more than 1.4 million cast.

Immediately after the election, Mrs. Sauerbrey indicated that she believed it had been stolen from her. With the aid of the state and national Republican parties, private contributions and a small army of volunteers, she organized an investigation into voting practices in the three jurisdictions Mr. Glendening carried, concentrating on Baltimore.

The majority of the questionable votes identified in her lawsuit appear to involve technical violations of election laws rather than systematic or large-scale fraud. They include votes by people who could have been purged from voter rolls, voted in precincts from which they had moved or voted by absentee ballot without signing the required affidavits.

The lawsuit does allege some fraud. It says that dead people were recorded as voting, that people voted twice and that others listed as their home addresses long-abandoned vacant buildings.

"At most, their painstaking post-election investigation has allegedly uncovered 141 fraudulent votes in Baltimore City," lawyers for Mr. Glendening said yesterday.

At a private meeting with Mr. Glendening and election board lawyers Thursday, Mrs. Sauerbrey's attorneys said they were not alleging that Mr. Glendening, Mrs. Townsend, or state or local election officials had fraudulently conspired with voters to steal the election.

"I don't want to be misleading you," Sauerbrey attorney Lee T. Ellis Jr. said at that meeting, according to a transcript that was part of yesterday's filing. "If I had something, I would be telling you. I don't have it. . . . It isn't because we're not trying. . . . We would tell you if we had it. I think we're kind of wasting our time on that effort."

The memorandum filed by the Glendening lawyers said the incidents alleged by the Sauerbrey suit "amount to negligence at worst."

Mrs. Sauerbrey's attorneys have until noon Wednesday to reply. The case is set for a hearing before Judge Raymond G. Thieme Jr. Friday and, if necessary, for trial Jan. 9.

Mr. Glendening's inauguration is set for Jan. 18.

Lawyers advising leaders of the House of Delegates say they believe Mrs. Sauerbrey could request that the House consider the election dispute regardless of whether the court says it has primary jurisdiction and regardless of how the court may rule on the merits of the case.

In preparation, House leaders have tentatively discussed the appointment of an investigative committee to review the Sauerbrey allegations and report its findings to the full House.