[EL] State ballot-issue question...

[Tom Moore]

Colleagues: 

In my spare time, I’m the plaintiff in a challenge to the validity of petition signatures on a charter amendment in Montgomery County, Maryland. We lost on summary judgment at the Circuit Court level last week and we’re filing a cert petition Oct. 4 to the Maryland Court of Appeals. 

The lower-court opinion is kind of wild, and I was hoping to get some reactions to it. 

The issue is that thousands of this petition's signature pages appear to have had significant alterations made after the voters signed their entries and the circulators signed their page affidavits, but before the pages were turned in to the Board of Elections. 

They’re a mess. Some entries have names that were corrected four times after the voter wrote something down, in four different sets of handwriting, in four different colored pens:



(p. 2577) The only thing added by the Board of Elections was the red “OK" to the left. I wouldn’t want to hazard a guess which information the Board used to OK the entry.

In Whitley v. Board of Elections, 429 Md. 132 (2012), voter information was preprinted on a petition page using an online tool, and the page was then signed by the voters in that household.  The voters signing that page were held to have “provided” that information, as the law requires. The voter was not required to print or write out the information herself, as long as she signed the page. 

In this case, the trial judge read Whitley to say that voter information on the page can be provided before or after the voter’s signature is affixed, by anyone.  This can’t be right, can it?  It would seem to void every possible protection from fraud that the voter signature was meant to secure.

The better argument would be that the voter’s signature puts a seal on the information on the voter's entry, and the circulator’s affidavit puts a seal on the five voter signatures on the page. Anything added after that has not been “provided” by the voter.  There is evidence that strongly indicates that the Board of Elections used the alterations to clear the entries (e.g., what the voter provided was inadequate, the alteration conformed the entry to the law, and it was then accepted).

The petition asks the Court of Appeals to decide whether (1) the lower court erred in allowing alterations to be made to petition entries by third parties long after the voter had signed the petition page, and (2) whether the lower court erred in applying the "substantial evidence" rule to the proceedings, which is an equally interesting, if more painfully geeky, question.

Has anything like this come up anywhere else, as far as anyone knows? I’m having difficulty believing that any state has a rule that ballot-isssue petitions may be marked up willy-nilly after the voter has signed their entry.

The cert petition and lower-court decision are combined in this document: http://no-on-b.com/wp-content/uploads/2016/10/moore-cert-petition-and-exhibits-to-court-of-appeals-100316.pdf <http://no-on-b.com/wp-content/uploads/2016/10/moore-cert-petition-and-exhibits-to-court-of-appeals-100316.pdf>

If you’d like to take a look at all the petition pages, they’re here: 
http://no-on-b.com/petitions/ <http://no-on-b.com/petitions/>

Thanks!

Tom Moore
tom at moores.org <mailto:tom at moores.org>

p.s. FYI: The underlying ballot issue would apply term limits to the Montgomery County Executive and Council.  We found almost 5,000 alterations to about 4,000 entries; the petition-gatherers turned in ~17,500 signatures, of which ~12,500 were approved, on a requirement of 10,000 approved signatures. If these ~4,000 altered entries were rejected, the measure would fail to make the ballot. 

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