The Basis of the Appeal

Jonathan Shurberg and other lawyers supporting the County in its fight to ban gender identity discrimination have filed their "cert" in the Court of Appeals. The Petition for Writ of Certeriori and Request for Expedited Review in a Referendum Election Case asks the Maryland Court of Appeals to give an expedited judgment and summarizes arguments for why the referendum should be blocked. The other side has until next Monday to file their side of it.

This is another scanned PDF, meaning that if you want to see it, I have to type it in. I didn't transcribe the whole thing, but the major section, I'd say. And let me tell you, there are a lot of ways to spell "referendum" wrong!

The case is made up of four sections, representing four reasons the Circuit Court ruling should be reviewed. The four reasons are:

• This case raises important questions of statewide concern regarding Maryland political process and election law
  
• Time is of the essence, warranting expedited review directly in this Court
  
• The Circuit Court's ruling regarding the time in which a challenge to a referendum petition must be filed creates an improper and unworkable standard to be met by concerned voters, and
  
• The Circuit Court improperly held that compliance with signature requirements specifically mandated in the Election Code no longer is necessary, departing from this Court's precedent calling for strict compliance with such provisions

Here's the first section -- again, please forgive my typos.

This case raises important questions of statewide concern regarding Maryland political process and election law

In a long line of consistent decisions, the Court has affirmed that the right to referendum is "drastic in its effect" and meant to be used sparingly, only when the specific requirements prescribed for its exercise by governing constitutional, statutory, and local code provisions are complied with strictly. [Legal references will be replaced with ellipses throughout]

The Montgomery County Council passed the anti-discrimination law after hearings and a deliberative process taking into account the interests of the transgender and broader communities in the County, while the referendum process offers a tiny minority the opportunity to block such duly-enacted legislation from taking effect. This Court has recognized that the referendum is "a concession to an organized minority and a limitation upon the rights of the people." ...

The exercise of the right of referendum is drastic in its effect. The very filing of the petition, valid on its face, suspends the operation of any of a large class of legislative enactments and provides an interim in which the evil designed to be corrected by the law may continue unabated, or in which a need intended to be provided for, may continue unsatisfied.

[quote from Takoma Park] ... To ensure that referenda are not abused, this Court consistently has held that there must be "strict compliance" with the prerequisites specified in State law. [...]

This Court likewise recently held that "any statutory provision or administrative regulation which treats 'inactive' voters differently from 'active' voters is invalid." [...] Yet the Circuit Court's ruling permits a referendum concededly in violation of this precept and the constitutional rights of inactive voters to proceed.

The BOE's certification of a manifestly insufficient referendum petition and the Circuit Court's erroneous ruling upholding the referendum strike at the heart of the stringent protections held to be so important to prevent abuses of the privilege of referendum. This untenable situation undermines the integrity of the referendum process in Maryland, rights of representative democracy, rights of inactive voters to participate in the political process, and rights of a vulnerable minority of individuals to the protections of a duly enacted anti-discrimination law. This case, which has garnered wide public attention, is of broad concern in the State.

I won't dwell on this section, but the fact is, this case has revealed serious holes in the law. The law seems to be clear about what to do if your petitions are rejected by the Board of Elections, but there's nothing about how to protest somebody else's illegitimate petitions. Deadlines are undefined, procedures are unclear, and these problems need to be addressed if the referendum process is going to be able to work at all.

The next point is also, in my opinion, not the most important one of the four. They're saying, let's get 'er done.

Time is of the essence, warranting expedited review directly in this Court

Expedited review directly in this Court is especially warranted given the referendum's "drastic" effect on a duly enacted County law and the need for a speedy resolution in advance of the November election. The General Assembly has recognized the critical and time-sensitive nature of referendum challenges, specifically calling for expedited judicial review of referendum issues in § 6-209(3) of the Election Code: "Judicial review shall be expedited by each court that hears the cause to the extent necessary in consideration of the deadlines established by law."

A concededly insufficient referendum petition is preventing an anti-discrimination law to protect a vulnerable minority from taking effect. The law should be allowed to go into operation without further delay. Moreover, in September, the State BOE must finalize the general election ballot and start to allocate administrative resources to prepare for the referendum vote. Both supporters and opponents of the referendum will need to invest time and resources to engage in public education efforts. If the case were to proceed first in the Court of Special Appeals, in all likelihood the losing party will seek review in this Court on the important issues at stake, leaving little time to complete appellate review in both Courts before significant resources are expended and the November election arrives.

Under these circumstances, bypassing the Court of Special Appeals and expediting review in this Court furthers the legislatively-approved goal of speedy resolution of election law issues.

It is a good point there, that while all this silliness is going on, a law that was passed unanimously by the County Council and supported enthusiastically by the County Executive is not being implemented. Well, that phase only extends until November but in the meantime people need their rights. Another big point is that both sides are going to have to do a lot of campaigning and educating before November, and they need to start getting ready if that's going to happen -- they need to know.

To me, this next point is the central one.

The Circuit Court's ruling regarding the time in which a challenge to a referendum petition must be filed creates an improper and unworkable standard to be met by concerned voters

The Circuit Court ruled that a referendum petition carrying insufficient signatures may nonetheless continue to block a unanimously enacted law from taking effect and that the referendum may proceed to the ballot in November. It did this based on a particularly confused and irrational interpretation of the time limitations imposed under § 6-210(e). If allowed to stand, this interpretation not only allows a concededly illegal referendum to proceed, but also establishes a dangerous and unworkable standard in the State.

In an important safeguard against referendum abuses, the General Assembly expressly codified in § 6-209(b) of the Election Code the right of the general public to challenge referenda efforts. That section provides that "any registered voter" may file a complaint in circuit court for declaratory relief, and that the court "may grant declaratory relief as to any petition with respect to the provisions of this title or other provisions of law."

In addition to this broad right of review of violations under Title 6 of the Election Code and any "other provisions of law," § 6-209(a) also permits "[a] person aggrieved by a determination made under § 6-202, § 6-206, § 6-208(a)(2) of this subtitle" to "seek judicial review." That provision is particularly designed to give aggrieved petition sponsors recourse to challenge several specific determinations that the BOE might make, to the detriment of a sponsor, during the petition process. Section 6-201(e)(1) provides in relevant part that "any judicial review of a determination as provided in § 6-209 of this subtitle, shall be sought by the 10th day following the determination to which it relates."

Although Petitioners filed their challenge to the BOE's certification of the referendum within 10 days of the March 6, 2008 certification, the Circuit Court applied an incorrect -- and indeed, incomprehensible -- standard to hold that Petitioners were required to file an objection to the then unknown exclusion of inactive voters by February 20, 2008. There is no explanation offered in the Circuit Court's opinion as to how that date was reached, given that no conceivable triggering events of record occurred 10 days earlier on February 10, 2008.

Beyond this, as Petitioners intend to address in depth on appeal, the 10-day period specified in § 6-209(e) relates only to challenges to the specific "determinations" enumerated under § 6-209(a)(1). Petitioners did file within 10 days of the BOE's final determination under § 6-208(a)(2) to certify the petition, and hence are not time-barred under § 6-210(e) from bringing their challenge. Moreover, § 6-210(e) should not be read as a limitation on the time in which registered voters may challenge referenda efforts under the separate declaratory judgment provisions of § 6-209(b), which broadly permit members of the voting public to assert claims under any provisions of Title 6 of the Election Code or other provisions of law. Thus Petitioners filed their petition within 10 days of the only date that could be viewed as triggering a time limit -- March 6, the date the BOE determined (wrongly) that MCRG had submitted sufficient signatures for certification of the referendum.

Only in discovery did Petitioners learn that at some point before the petition drive was even underway, the BOE advised MCRG in an email that five percent of registered County voters amounted to 25,001 individuals. This was done without explanation, and certainly without notice to the public until well into this proceeding that the BOE had improperly excluded over 50,000 inactive voters in its methodology. As Petitioners will demonstrate on appeal, contrary to the Circuit Court's assertion, it was impossible for Petitioners or anyone other than the petition sponsor to glean this error from the BOE's website. Indeed, as outlined in § 6-210(b) of the Election Code, the only party given notice of and participating in BOE decisions and process throughout the petition gathering period was the petition sponsor.

The Circuit Court's reading of the limitations period creates an unfair, unconstitutional, and unworkable standard that must be met by concerned members of the voting public in order to exercise their right to challenge illegal referendum efforts. Under the Circuit Court's ruling, a voter is expected to file a lawsuit by an arbitrarily early date, perhaps before even knowing whether a petition gathering process is underway; the identity of the sponsor; steps taken and determinations made by the BOE; methodologies used by the BOE; what, it any, defects may exist in the process; or whether the sponsor is succeeding in gathering sufficient signatures by the deadlines.

Since only petition sponsors, not the general public, are entitled to notice of BOE determinations, even the most diligent and resourced voters would rarely, if ever, be able to meet the deadline imposed by the court below, and their efforts could be easily thwarted by election authorities' and petition sponsors' refusal to respond to inquiries about whether a determination has been made and how it was reached. Concerned registered voters who want to ensure that an enacted law takes effect and is not blocked by an insufficient referendum effort will be compelled to hire counsel and file preemptive lawsuits in a virtual vacuum, before it is at all clear that a serious petition effort is even underway or that it suffers from legal infirmities. The courts will then be burdened with what in many instances will be premature, academic, and unnecessary cases, which nonetheless must be adjudicated on an expedited time-frame under § 6-210(a)(3).

Most likely, however, the overly restrictive time-bar created by the Circuit Court will be an impossible hurdle for concerned voters to meet. Egregious errors in the referendum process, as occurred here, will go un-redressed, with manifestly insufficient refenda petitions permitted to block duly enacted laws, contrary to our system of representative democracy and rights of due process.

Review and clarification by this Court on this issue is critical to ensure that registered voters can effectively access the courts to safeguard against illegal referenda efforts.

The Circuit Court's interpretation of the deadlines is just impossible. If it was correct, the courts would be tied up because everybody would have to sue for every little thing in case it happened. You'd have to file before you knew it happened, like, if you thought there would be forged signatures you'd sue to complain, even though you had no idea if there were forged signatures or not, just to meet the ten-day deadline. That won't work. The system is a mess and somebody -- that would be the appeals court -- needs to straighten it out.

This can't be what the legislature had in mind, but again, it looks like they just didn't think about what happens if somebody complains about somebody else's petitions. The law assumes that the complaining group has had their petitions rejected. In this case, the petitions were accepted, and shouldn't have been, and somebody else wants to complain.

Finally, the fact is, a lot of signatures did not meet the standard set by law. You might remember, the judge didn't like it that you had to have your name on the petition just like it is in your voter registration. And that might be a good reason to lobby the General Assembly to change the law. But the judge should have enforced the law as it's written and as it has been interpreted by other courts, whether anybody likes it or not the law demands strict adherence to details of the petition signatures.

The Circuit Court improperly held that compliance with signature requirements specifically mandated in the Election Code no longer is necessary, departing from this Court's precedent calling for strict compliance with such provisions

The Circuit Court disregarded clear, specific signature safeguards mandated by the General Assembly in § 6-203(a) of the Election Code to ensure the referendum process is not abused. The lower court's ruling runs counter to the specific terms of the Election Code and this Court's repeated admonition that only strict compliance with the prescribed referenda procedures will suffice. ... The BOE itself stipulated that thousands of petition signatures -- far more than the number that would invalidate the entire referendum -- failed to include the full name or registration or such other portions of the name as is called for by § 6-203(a)(1). In a case particularly on point, this Court held in Barnes that referenda petitions must comply with precise signer requirements like those specifically codified in § 6-203. Barnes ... (holding that such requirements as that signers print their names below their signatures were constitutional and must be satisfied for each signature counted in a referendum petition). These requirements are designed to ensure the integrity of the referendum process. "[S]tringent language employed [by the referendum procedure] ... shows an intent that those seeking to exercise the referendum in this State must, as a condition precedent, strictly comply with the conditions prescribed." Takoma Park ...

In the face of the strict compliance standard dictated by this Court in an unbroken string of cases and the unmistakable terms of the statute, the Circuit Court erroneously held that a different provision of the Election Code enacted in 2006, § 6-207(a)(2), concerning the BOE's "verification" that signers are registered voters, effectively eliminated the mandate of § 6-203(a)(1) and the strict compliance requirement. ... As Petitioners will assert on appeal, this was a serious misreading of the statutory provisions at issue and an unwarranted departure from the standards articulated by this Court.

Whether the signature requirement must be met presents a potentially dispositive issue in this case; a resolution in Petitioners' favor indisputably would require de-certification of the referendum. Moreover, in light of the Circuit Court's novel ruling, guidance is sorely needed from this Court for future referendum sponsors and concerned voters regarding the proper scope of the well-established strict compliance standard.

The people of Montgomery County are entitled to rely on the protections afforded by legislation enacted by their County Council, without fear that a small faction can roll back civil rights advances with a legally insufficient referendum effort. This Court's intervention is needed to prevent abuse and confusion in the referendum process.

The shower-nuts like to say that a referendum is real democracy, the exercise of the will of the majority, and that reflects a mistaken view of how our government works. We elect representatives who can study an issue and vote intelligently on it. A referendum is a chance for a small group to take over the law. When you're looking for a majority vote, it's like selling soap, you just find a message the public will hum along with, and when they go into the booth they'll support it, just like they buy the soap with the best jingle. That's not the way to run a government. This subject does not belong on a ballot in November, it is a pure abuse of the opportunity offered by the referendum process.