Md. Code Regs. 33.01.05.06

Current through Register Vol. 51, No. 21, October 18, 2024

Section 33.01.05.06 - Complaint - Consolidation, Record, Hearing, and Determination

A. Consolidation. The State Board may consolidate complaints if they:

(1) Relate to the same actions or events; or

(2) Raise common questions of law or fact.

B. Record.

(1) The State Board shall compile and maintain an official record in connection with each complaint under this chapter.

(2) The official record shall contain:

(a) A copy of the complaint, including any amendments made with the permission of the State Board;

(b) A copy of any written submission by the complainant;

(c) A copy of any written response by any respondent or other interested person;

(d) A written report of any investigation conducted by members or employees of the State Board or of any local board of elections, who may not be directly involved in the actions or events complained of and may not directly supervise or be directly supervised by any respondent;

(e) Copies of all notices and correspondence to or from the State Board in connection with the complaint;

(f) Originals or copies of any tangible evidence produced at any hearing conducted under §C of this regulation;

(g) The original tape recording produced at any hearing conducted under §C of this regulation;

(h) A copy of any transcript of any hearing conducted under §C of this regulation obtained by any board or other party; and

(i) A copy of any final determination under §D of this regulation or any final resolution under Regulation .07D of this chapter.

C. Hearing.

(1) The State Board shall conduct a hearing on the record if:

(a) The complainant is alleging a violation of any provision of Title III of the Help America Vote Act of 2002, 42 U.S.C. §§ 15481 et seq. and requests a hearing; or

(b) The State Administrator determines that a hearing is necessary to decide a complaint alleging a violation of any provision of the Election Law Article, Annotated Code of Maryland, relating to provisional ballots or an action of a local board regarding voter registration.

(2) A hearing under this section is not a contested case within the meaning of the Administrative Procedure Act, State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.

(3) The hearing shall be conducted not sooner than 10 days and not later than 30 days after the State Board receives the complaint.

(4) At least 5 business days before a hearing, the State Board shall provide notice of the date, time, place, and method (in-person or virtual) of the hearing. For good cause, a complainant may request an alternative date, time, or method for the hearing. The requisite notice shall be:

(a) Sent by mail to the complainant, each named respondent, and any other interested person who has asked in writing to be advised of the hearing;

(b) Posted on the State Board website; and

(c) Posted in a prominent place, available to the general public, at the offices of the State Board.

(5) The State Administrator or the State Administrator's designee shall act as hearing officer.

(6) The complainant, respondent, or any witness called by the complainant or the respondent may appear at the hearing and testify or present tangible evidence in connection with the complaint.

(7) Each witness shall be sworn.

(8) At least 2 business days before the hearing, a party shall provide to the hearing officer and each party a list of the:

(a) Witnesses the party expects to call at the hearing; and

(b) Documents or other tangible evidence the party expects to present at the hearing.

(9) The hearing officer may limit the testimony, if necessary, to ensure that all parties are able to present their views.

(10) The hearing officer may recess the hearing and reconvene at a later date, time, and place announced publicly at the hearing.

(11) A complainant, respondent, or other person who testifies or presents evidence at the hearing may, but need not, be represented by an attorney.

(12) There is no right of cross-examination at a hearing, but a person may testify or present evidence to contradict any other testimony or evidence.

(13) The hearing officer may question any witness.

(14) If a person has already testified or presented evidence at the hearing and wishes to contradict testimony or evidence subsequently presented, that person is not entitled to be heard again, but may make a written presentation to the hearing officer.

(15) The proceedings shall be tape-recorded by and at the expense of the State Board.

(16) The recording will not be transcribed as a matter of course, but the State Board, a local board of elections, or any party may obtain a transcript at its own expense.

(17) If a board or party obtains a transcript, the board or party shall file a copy as part of the record, and any other interested person may examine or copy the record copy.

(18) Any party to the proceedings may file a written brief or memorandum within 5 business days after the conclusion of the hearing.

(19) Except with the specific authorization of the hearing officer, responsive or reply memoranda may not be filed.

(20) Except as provided by law, with the consent of all parties to the complaint, the hearing officer may extend any deadline or waive or modify any requirement established in this section.

D. Final Determination.

(1) If there has been no hearing under §C of this regulation, the State Administrator or the State Administrator's designee shall review the record and determine whether, under a preponderance of the evidence standard:

(a) A violation of Title III or any provision of the Election Law Article, Annotated Code of Maryland, related to provisional ballots has been established; or

(b) The local board has acted properly concerning the voter registration at issue in the complaint.

(2) The determination of the State Administrator or the State Administrator's designee shall be the determination of the State Board.

(3) After any hearing conducted under §C of this regulation, the hearing officer shall determine, under a preponderance of the evidence standard, whether a violation of Title III or any provision of the Election Law Article, Annotated Code of Maryland, related to provisional ballots has been established or whether the local board has acted properly concerning the voter registration at issue in the complaint.

(4) The hearing officer may take judicial notice of any fact not subject to reasonable dispute in that it is either generally known within the State or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

(5) Form of Determination.

(a) If the State Administrator or the State Administrator's designee, whether acting as hearing officer or otherwise, determines that a violation has occurred, the State Board, acting through the State Administrator or the State Administrator's designee, shall provide the appropriate remedy.

(b) The remedy may include an order to any respondent commanding the respondent to take specified action, or prohibiting the respondent from taking specified action, with respect to a past or future election.

(c) The remedy may not include an award of money damages or attorney's fees.

(d) If the complaint is not timely or not in proper form, or if the State Administrator or the State Administrator's designee, whether acting as hearing officer or otherwise, determines that a violation has not occurred or that there is insufficient evidence to establish a violation, the State Board, acting through the State Administrator or the State Administrator's designee, shall dismiss the complaint.

(6) The State Administrator or the State Administrator's designee shall explain in a written decision the reasons for the determination and for any remedy selected.

(7) Except as specified in §D(7) of this regulation, the final determination of the State Board shall be issued within 90 days after the complaint was filed, unless the complainant consents in writing to an extension.

(8) The final determination shall be:

(a) Mailed to the complainant, each respondent, and any other interested person who has asked in writing to be advised of the final determination;

(b) Published on the State Board website; and

(c) Made available on request to any interested person.

(9) If the State Board cannot make a final determination within 90 days after the complaint was filed, or within any extension to which the complainant consents, the complaint shall be referred for final resolution under Regulation .07 of this chapter.

(10) The record compiled under §B of this regulation shall be made available for use under Regulation .07 of this chapter.

Md. Code Regs. 33.01.05.06

Regulation .06C, D amended as an emergency provision effective October 31, 2008 (35:24 Md. R. 2073); emergency status expired January 20, 2009; amended permanently effective March 9, 2009 (36:5 Md. R. 424)
Regulation .06D amended effective January 16, 2006 (33:1 Md. R. 41)
Regulation .07D amended effective January 16, 2006 (33:1 Md. R. 41)
Regulations .06 amended effective 41:19 Md. R. 1082, eff.9/29/2014 ; amended effective 50:13 Md. R. 514, eff. 7/10/2023; amended effective 50:26 Md. R. 1132, eff. 1/8/2024