Whitley v. Md. State Bd. of Elections

429 Md. 132

55 A.3d 37

Dennis WHITLEY III, et al.,

v.MARYLAND STATE BOARD OF ELECTIONS, et al.

No. 133, Sept. Term, 2011.

Court of Appeals of Maryland.

Oct. 23, 2012.

Jonathan S. Shurberg (Jonathan S. Shurberg, P.C., Silver Spring, MD), on brief, for appellants.

Joseph E. Sandler (Amanda S. La Forge and Elizabeth F. Getman of Sandler, Reiff, Young & Lamb, P.C., Washington, DC), on brief, for appellants.

Julia Doyle Bernhardt, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Jeffrey L. Darsie, and Jennifer L. Katz, Asst. Atty. Gen., Baltimore, MD), on brief, for appellees.

Paul J. Orfanedes (Chris Fedeli of Judicial Watch, Inc., Washington, DC), on brief, for appellees.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, McDONALD, JJ.

HARRELL, J.

This case comes to us through the courtesy of fairly recent advancements in the field of information technology,¹ as applied to the increasingly popular use in Maryland of voter petitions seeking to place questions before the electorate on a ballot. See generally Md.Code (2002, 2010 Repl.Vol.), Election Law Article, §§ 7–101– 7–105; Doe v. Md. State Bd. of Elections, 428 Md. 596, 53 A.3d 1111 (2012) (also representing computer-facilitated petitions to submit the Maryland Dream Act to referendum on the 2012 election ballot). Following the passage of Maryland's latest congressional redistricting law, enacted by the General Assembly in an October 2011 special session as Senate Bill 1, chapter 1 (pursuant to the results of the 2010 United States Census) (hereinafter SB 1), Intervenor, MDPetitions.com, employed a website-based initiative to gather the signatures necessary to petition SB 1 to referendum on the general election ballot in November 2012. ² The site's computer software allowed a user to generate electronically a petition signature page by entering his or her identifying information ³ in specified fields on the website. The registered voter then could print the page, affix his or her signature, complete the required petition circulator's affidavit attesting to the genuine nature of his or her signature,⁴ and submit it to the petition sponsor in support of referring SB 1 to the ballot.

The Maryland State Board of Elections (hereinafter “the State Board”) certified the petition for referendum on 20 July 2012 after determining that Intervenor had gathered the required number of valid signatures. Pursuant to Md.Code (2002, 2010 Repl.Vol.), Election Law Article, § 6–209, Petitioners ⁵ (hereinafter “Whitley”) filed a Complaint for Declaratory and Injunctive Relief in the Circuit Court for Anne Arundel County,⁶ challenging the State Board's certification of the petition on the grounds that Intervenor failed to submit a sufficient number of valid signatures. Specifically, Whitley objected to two classes of signatures that were validated by the State Board, the invalidity of either of which would render the petition insufficient to place SB 1 on the ballot. First, Whitley contended that signature pages obtained through the use of MDPetitions.com were invalid under § 6–203 of the Election Law Article and the State Board's own regulations because the computer program or the recruiting household member, rather than the individual signer, “included” or “provided” the individual's identifying information. Second, Whitley objected to signature pages that were signed by the voter twice—once as the signer pledging support for the petition and again as the circulator attesting that the signature of the signer was valid—as contrary to the plain language of the affidavit requirements of Article XVI, Section 4 of the Maryland Constitution and § 6–204 of the Election Law Article.

The Circuit Court affirmed the action of the State Board, determining that the applicable constitutional and statutory provisions were unambiguous and did not support Whitley's contentions. We issued a writ of certiorari to consider two issues: (1) whether petition signatures obtained through the use of a third-party website violate the statutory requirement that an individual “ include” or “provide” his or her identifying information, see Md.Code, (2002, 2010 Repl.Vol.), Election Law Article, § 6–203; COMAR 33.06.03.06; and (2) whether an individual can “self-circulate” a petition by signing both as the voter and as the circulator consistent with the affidavit requirements of the Maryland Constitution and Election Law Article. SeeMd. Const. art. XVI, § 4; Md.Code (2002, 2010 Repl.Vol.), Election Law Article, § 6–204. On 17 August, 2012, we issued an Order affirming the judgment of the Circuit Court.⁷ We shall elaborate now our reasons for that Order.

FACTUAL AND PROCEDURAL BACKGROUND

Article XVI, Section 1 of the Maryland Constitution reserves to the people the power to petition to referendum any Act, or any part of an Act, passed by the General Assembly (if approved by the Governor) or passed over the Governor's veto. Md. Const. art. XVI, § 1. To proceed to referendum, a petition must be filed with the Secretary of State, Md. Const. art. XVI, § 2, bearing the signatures of three percent of the registered voters of the State as determined by the total number of votes actually cast in the preceding gubernatorial election.⁸Md. Const. art. XVI, § 3(a). Each signature page accompanying the petition must include an “affidavit of the person procuring those signatures that the signatures were affixed in his presence and that, based upon the person's best knowledge and belief, every signature on the paper is genuine and bona fide and that the signers are registered voters at the address set opposite or below their names.” Md. Const. art. XVI, § 4. Upon a determination of sufficiency, the petitioned Act is submitted to the registered voters of the State on the ballot for their approval or rejection. Md. Const. art. XVI, § 1.

On 20 October 2011, the Maryland General Assembly enacted Senate Bill 1, chapter 1 of the 2011 Special Session, signed by Governor O'Malley that same day. SB 1 established a congressional redistricting plan for Maryland's eight congressional districts, pursuant to the results of the 2010 U.S. Census. ⁹ Following its passage, Intervenor, MDPetitions.com, initiated an effort to collect at least the 55,736 signatures required to subject SB 1 to referendum on the 2012 general election ballot, pursuant to Article XVI of the Maryland Constitution and Title 6 of the Election Law Article. ¹⁰ On 26 March 2012, Intervenor received from the State Board an advance determination of the sufficiency of the format of their proposed petition pursuant to Md.Code (2002, 2010 Repl.Vol.), Election Law Article, § 6–202.¹¹

For a signature to be accepted as valid by the State Board, it must comply with the provisions of the Maryland Constitution and Title 6 of the Election Law Article.¹² Each paper submitted as part of a petition must “contain the full text, or an accurate summary approved by the Attorney General, of the Act or part of Act petitioned.” Md. Const. art. XVI, § 4; Md.Code (2002, 2010 Repl.Vol.), Election Law Article, § 6–201(c)(2) (requiring that a petition seeking to place a question on the ballot contain either “(i) a fair and accurate summary of the substantive provisions of the proposal; or (ii) the full text of the proposal”). Additionally, a valid signature page must include a description of the petition's subject and purpose, a statement of the signer's support and status as a registered voter, spaces for signatures and signer information, and a space for the required affidavit to be made and executed by the petition circulator.¹³Election Law Article, § 6–201(c).

In completing a signature page, each signer of a petition must “include ..., printed or typed,” his or her name, address, and the date the petition was signed.¹⁴Election Law Article, § 6–203(a). The signature page must also include “an affidavit of the person procuring those signatures that the signatures were affixed in his presence and that, based upon the person's best knowledge and belief, every signature on the paper is genuine and bona fide and that the signers are registered voters at the address set opposite or below their names.” Md. Const. art. XVI, § 4. If the affidavit, “made and executed by the individual in whose presence all of the signatures on that page were affixed and who observed each of those signatures being affixed,” Md.Code (2002, 2010 Repl.Vol.), Election Law Article, § 6–204, is not included, the signature will be deemed invalid. Election Law Article, § 6–203(b)(4).

Intervenor collected petition signatures both in person and through the use of a website that allowed visitors to the site to enter relevant identifying information to generate their own copy of a referendum petition, which could then be printed, signed, and mailed to the petition sponsor. To use the petition computer software, an individual could visit MDPetitions.com, select the “redistricting petition” option, and follow a series of prompts to complete the petition. After selecting the redistricting option, the website first displayed a screen which included a picture of the new congressional districts as defined by SB 1, a summary of Intervenor's concerns regarding SB 1 and Intervenor's call to action,¹⁵ and the option to either “Sign the petition now” or “Get a volunteer packet.”

An individual who elected to sign the petition would then be taken to a screen that provided instructions on how to generate a petition. On the left side of the screen was a five-step instruction process, which stated:

Maryland has strict rules regarding how the petition is filled out. This site will help insure that your petition is filled out in 5 easy steps.

Step 1—Provide information requested on the petition, as indicated to the right.

Step 2—Select members of your household who might also want to sign the petition.

Step 3—Download the petition

Step 4—Print the petition

Step 5—Sign and date the petition.

On the right...