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Redistricting referendum survived by a single vote in Court of Appeals

A petition drive to force a vote on Maryland’s congressional redistricting plan succeeded by just a single vote in the state’s highest court.

Delegate Neil Parrott , R-Washington Co., speaks during a news conference Thursday, June 30, 2011 in Annapolis, Md. (AP Photo/Gail Burton)

The Court of Appeals had rejected the challenge to the referendum in an order Aug. 17, but did not explain its reasons — or how close the vote was.

Because the petition was available online through MDPetitions.com, thousands of people signed not only the petition, but also the required affidavit of the “circulator” — swearing they had procured their own signature and watched as it was signed.

The petition drive’s opponents wanted the court to throw out those “self-circulated” petitions, arguing the state Election Law required the supporter and circulator to be separate individuals.

By a 4-3 vote, the court stated Tuesday that neither the Maryland Constitution nor the law requires a circulator and a signer to be different people.

The court also said petition drives may be conducted online, holding that Maryland law does not require voters to print or type their names on a paper petition.

The court’s decision marked a victory for MDPetitions.com, which has waged successful online petition drives to bring to referendum next month challenges not only to congressional redistricting but to laws that would permit same-sex marriages in Maryland and enable undocumented students to receive instate tuition at Maryland schools if their parents have paid Maryland taxes.

“It’s good news for the democratic process in Maryland,” Del. Neil C. Parrott, chairman of MDPetitions.com, said of the decision.

Marylanders must be able to vote down laws via referendum “if the governor and the legislature are out of line with the will of the people,” added Parrott, a Washington County Republican.

The congressional map that Gov. Martin O’Malley and the General Assembly approved “divides communities all across the state so that whole blocks of voters lose their representation in Congress,” Parrott said. “It is the most gerrymandered map in the entire country.”

Anne Neal, one of five people who challenged the petition drive in court, said she was “disappointed in the decision.” She was joined in the challenge by Matthew Thomas; attorney Dennis Whitley III, of Shipley & Horne PA in Largo; attorney Karren Pope-Onwukwe, a Glenn Dale solo practitioner; and Joanna Hanes-Lahr, of The Aker Partners public relations firm in Washington, D.C.

The new map’s supporters had challenged the validity of at least 10,000 of the 59,201 signatures the State Board of Elections approved in putting the redistricting plan on the Nov. 6 ballot. Invalidation of the 5,000 self-circulated petitions would have brought that total below the 55,736 needed to bring the redistricting plan to a referendum.

The map’s supporters pointed to constitutional and statutory requirements that circulators affirm under penalty of perjury that they “observed” the petition being signed in their “presence” and that they “procured” the signature. A person can neither observe themselves signing a petition, nor procure a signature from themselves, the supporters’ attorneys, Jonathan Shurberg and Joseph Sandler, told the court Aug. 16.

But Judge Glenn T. Harrell Jr., writing for the majority, called that argument a “hypertextual” reading of Maryland law “to imply that it takes two to tango in the completion of each signature page.”

A person can observe, procure and be present at his or her own signature, Harrell wrote.

“[A]n individual is necessarily and metaphysically in his or her own presence, and thus may attest to his or her own signature being affixed to a petition signature page ‘in his presence,’ without violating the requirements” of the law, Harrell wrote.

In dissent, Judge Sally D. Adkins said the only logical reading of the law is that the circulator and the signer be different people.

“What the majority ignores … is that this supposed ‘hypertextual’ reading is exactly what this court is required to do when interpreting a statute,” Adkins wrote. “This court must read the relevant constitutional and statutory provisions and apply their plain meaning.”

She added that “the use of the term ‘presence’ in the Election Law Article is better defined using its commonly understood meaning which involves two distinct people — the circulator and the petition signer.”

Judges Lynne A. Battaglia and Mary Ellen Barbera joined Adkins’ dissent.

The majority also said that online petition drives — and the electronic signatures they generate — are valid under the Election Law, which requires the elections board to be provided sufficient information, including name and address,  to identify the signer.

“Whether an individual prints or types personally the information on the signature page, uses a computer program, or has someone else write the information on his or her behalf does not impact the ability of the State Board to identify the signer,” Harrell wrote.

 

What the court held

Case:

Dennis Whitley III et al. v. Maryland State Board of Elections., CA No. 133, Sept. Term 2011. Reported. Opinion by Harrell, J. Dissent by Adkins, J. Argued Aug. 16, 2012. Filed Oct. 23, 2012.

Issue:

May a petition signer also be the “circulator” who attests to the signature’s validity based on person observation, presence and procurement?

Holding:

Yes; a person can observe, procure and be present at his or her own signature.

Counsel:

Jonathan Shurberg and Joseph Sandler for petitioners; Julia Bernhardt and Paul Orfanedes for respondents.

RecordFax # 12-1023-21 (51 pages).