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State opposes Green, Libertarian bid for petition relief

The State Board of Elections has urged a federal court to reject the Green and Libertarian parties’ request to be relieved of Maryland’s requirement that they collect thousands more signatures to place their candidate’s names on November’s general election ballot, a mandate they say has been impeded by the governor’s stay-at-home order.

In papers filed Friday in U.S. District Court, the board called the state’s 10,000-signature requirement a “modest burden” that the parties had almost 14 months to satisfy before Gov. Larry Hogan issued the stay-at-home order in March to stanch the spread of the COVID-19 virus.

The board said Hogan has since eased his order and that the continuing restriction of social distancing provides little obstacle to the parties’ collecting signatures because they can collect them via online petition drives.

The board’s court filing was in response to the parties’ argument that Hogan’s order and the resulting cancellation of major gatherings this spring and summer have made it virtually impossible for them to garner the required 10,000 signatures by Aug. 3, thus violating their constitutional rights to free speech and political association.

“Without question, the COVID-19 pandemic has introduced burdens to the petition process that were not otherwise present, but those burdens are not of constitutional dimension,” Assistant Maryland Attorney General Andrea W. Trento, the board’s attorney, wrote in the court filing. “The state’s well-settled interest in requiring parties to demonstrate a significant modicum of support before gaining access to the ballot justifies the 10,000-signature requirement for new party petitions in this election cycle.”

The Green and Libertarian parties seek a 1,000-signature requirement – a 90 percent reduction from the state’s demand. The relaxed demand would remove the need for the Green and Libertarian parties to collect more signatures, as they have acknowledged having collected about 5,000 and 3,000,respectively, in advance of the Aug. 3 deadline.

“The prime venues for collection of petition signatures historically have been large gatherings, such as fairs, festivals and sporting events, during warm weather months,” attorneys for the parties stated in their joint filing last month in federal court in Baltimore.

“Since March, all such events have been canceled in Maryland and none are scheduled to resume until after Aug. 3, 2020,” added the lawyers, H. Mark Stichel and Oliver B. Hall. “The ability to submit electronic signatures is no substitute for in-person solicitation.”

State law requires the Green and Libertarian parties to garner the signatures of 10,000 registered Maryland voters each to regain status as a Maryland political party. They lost state party status in 2018 when their respective candidates for the highest office on that year’s ballot – governor — failed to receive at least 1 percent of the vote. Fewer than 1 percent of Maryland’s registered voters were affiliated with the Green or Libertarian parties as of Dec. 31, 2018.

The 10,000-signature requirement is a reasonable regulation to achieve the state’s important goals of “avoiding ballot overcrowding and minimizing the presence of frivolous candidates,” Trento wrote for the board. “The emergence of COVID-19 at the tail end of the petition process does not detract from these interests.”

In any event, the parties’ proposed 90 percent solution “far exceeds any remedy tailored to the scope of the constitutional deprivation” they claim to have suffered or any remedy provided elsewhere, Trento stated.

For example, successful party challenges in other states with stay-at-home orders – including Utah, Massachusetts and New York – have resulted in pro-rated reductions in the number of required signatures either by judicial ruling or gubernatorial order, Trento wrote.

Hogan’s March order cost the parties five months of the 19 months – or about a 26 percent loss — they will have had to collect signatures between January 2019 and Aug. 3, 2020, Trento stated. A pro-rated remedy would thus require the parties to collect a total of 7,400 signatures each, not just the 1,000 they seek.

“(E)ven if the court were to conclude that the burdens imposed by Maryland’s 10,000-signature requirement are severe as applied to the (parties), strict scrutiny does not support the (parties’) requested relief,” Trento wrote. “On the contrary, Maryland’s interests in requiring something more than a token level of support before a party obtains access to the ballot are compelling, and a reduction in the state’s 10,000-signature requirement commensurate with the amount of time lost to the restrictions imposed by the COVID-19 pandemic – and not the 90 percent reduction sought by (the parties) – would be better tailored to serve those interests while at the same time providing measured relief from the constitutional infirmity.”

U.S. District Judge Ellen L. Hollander, the presiding jurist, has ordered the Green and Libertarian parties to file a response to the state’s argument by Wednesday and has scheduled a hearing for June 12 either in the Baltimore courtroom, by telephone or via the Zoom website.

The case is Maryland Green Party et al. v. Larry J. Hogan Jr., governor of Maryland, and Linda H. Lamone, state administrator of elections, Civil No. ELH-20-1253.

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