Court Opinion Issued

Back in September, the Maryland Court of Appeals decided to block a referendum promoted by the Citizens for a Responsible Whatever, to relegalize discrimination on the basis of gender identity. At the time, all they did was issue a statement saying who won. You didn't know how the court voted, what their reasoning was, or anything.

This week they issued their opinion document, fifty-three pages of hard reading explaining why they decided the way they did. It was a four to three decision, so the document includes the minority's dissenting opinion. You can read it HERE.

There were a few issues. For one, a lower court had determined that the referendum should go forward because complaints were filed too late, and it was not clear at all how the deadline was determined. There was another issue altogether, having to do with the number of petition signatures -- the county Board of Elections told the bad guys they needed so-many signatures, but they had figured wrong. So it looked like they got the number they were told to get, but when you did the math you saw they needed more than that. They needed five percent of registered voters in the county to sign their petitions, and they didn't have it, but they had the number they thought they were supposed to have, after the board had validated signatures. Finally, there was an issue about the signatures themselves. If you are registered to vote as Dudley Dooright, RCMP, you can't sign the petition as "Dud D." Well, you can, but it won't count, the law says you have to use the name you used when you registered to vote. Actually, if your name ends with RCMP you might not qualify as a resident of Montgomery County, Maryland.

First of all, the court blew off the argument about not meeting the deadline. This gets too complicated, you have ten days to file a complaint but nobody was sure when the ten days started. The first judge ruled that the complaint came too late, but the appeals court decided the complaint was filed in time. I'll tell you, this goes on for page after page, it wasn't easy for these judges to figure it out and I won't explain to you the subtleties of a "determination" and how you know when a person is aggrieved, who gets to have judicial review and who gets declaratory relief. Hey! Open those eyes. In the end, the appeals court decided the good guys' complain was filed in time, that's all that matters. Once they've determined that, then they could look at the content of the complaint, and that's where it gets interesting.

There was a tough question involved in this case. The Board of Elections told the CRW the wrong number, but nobody realized that until the case had already gone to court. The board only included "active" voters in their numbers when they meant "registered," but in fact there are a lot of voters who are inactive for various reasons, but are still registered. So the question is, what number is five percent of registered voters? And the board gave them the wrong number. So the CRW got the number of signatures they were told to get, but they didn't get five percent of registered voters. Our side, the good guys, said the referendum should be thrown out because it didn't meet the standard encoded in the law, and the bad guys said it met the standard they were given by the county government.

This is where I'm glad I'm not a judge.

The legal question had to do with adding this point to the complaint after the deadline had passed. And man, there is a lot of precedent here, they cite a lot of cases where courts have considered these kinds of things. It looks like the big case they go back to was from 1903, it has to do with adding "theories" or reasons to your complaint after the complaint has been filed. It comes down to this: "The statement of the cause of action was different, but the cause of action itself was identical." They decided, on the basis of previous decisions, that amending the complaint was okay.

Having decided that, the question of the number of signatures required became quite a bit easier. The law is clear, you need five percent of the number of registered voters. Based on the case of Maryland Green Party v. Maryland Board of Elections, the court says:

To the extent that this statute, however, permits the maintenance of two lists to determine an individual’s registration status in order to exclude “inactive” voters from the list of registered voters, it is unconstitutional for the reasons stated in our decision in Green Party. We emphasize that there is no room, after our decision in Green Party, for the maintenance of an “inactive” list to define registration status, because both “active” and “inactive” voters are registered voters. The Legislature has “no authority to decree that an ‘inactive’ voter is not a ‘registered voter’ with all the rights of a registered voter.

Here's the money quote:

In the present case Montgomery County’s 52,269 “inactive” voters were excluded from the total number of registered voters, thus greatly diminishing the number of voters necessary to achieve the requisite 5% of registered voters. Had the County Board used all 552,281 registered voters, which includes both “active” and “inactive” voters, as opposed to only the 500,012 “active” voters, it would have determined that 27,615 petition signatures, not 25,001, were needed to achieve the 5% benchmark. Even were we to agree with the Circuit Court that only 26,813 signatures are valid, which we do not, the petition would fail to meet the requisite 27,615 signatures necessary to meet the 5% requirement.

Our county's Board of Elections is a sorry lot. You wouldn't think it would be so hard, especially in this day of computers and databases, to say how many voters you've got. But they couldn't do it, they couldn't put in a simple query to the database that says "Give me the number of registered voters."

Next the court goes through a lot of discussion about the words "shall" and "requirement," and what those mean, how they have interpreted them in the past, and whether somebody signing a petition needs to give their exact name as they have it in their voter registration. The lower court had said it didn't matter if you left out a middle initial, or if a Charles signed as Chuck, even though the law is very specific in saying they have to match up. This made a gigantic difference in the number of valid signatures -- the lower court threw out a few, but kept thousands of contested signatures, saying that the intent of the law was to validate the names, and that could be done even if they didn't match up exactly. Like I say, I'm just glad I'm not a judge.

The important point is here:

Finding none of the County Board’s arguments persuasive, we decline the invitation to reverse our past holding that a signer is required to comply with the signature requirements govern petitions for referendum. Such a holding is in accord with our view that signature requirements "provide additional means by which fraudulent or otherwise improper signatures upon a referendum petition may be detected" ...

Because we hold that Jane Doe’s judicial review action was not time-barred, that "inactive" voters should have been included in the total number of registered voters and finally that the 10,876 challenged signatures were invalid as a matter of law, the reversal of summary judgment entered on behalf of the County Board and entry of summary judgment on behalf of Jane Doe was mandated by this Court on September 9, 2008.

So, not only was the complaint filed on time, not only did the CRW not meet the five percent -- they didn't meet it by a lot, they didn't even meet the easier number that the Board of Elections gave them. This court threw out another ten thousand signatures, which sinks that ship entirely.