Follow the FreeStater Blog by Email

Monday, July 30, 2012

Maryland Democrats "Provide" Weak Argument Against Redistricting Petition

The full text of the Maryland Democratic Party's legal challenge to the successful petition effort to place the state's egregiously gerrymandered congressional map has been filed and is available on-line.
The meat of the legal arguments appears in Section V starting at paragraph 31. The first argument is against the petition process as employed by MDPetitions.com - an innovative website that allows voters to download petitions with information from voter registration records already populated on the form. This is an important step because Maryland laws makes it very easy for the state Board of Elections to reject petitions over missing middle initials, missing zip codes, or other common errors.

The MDpetitions.com process minimizes the possibility of errors. That process is the primary bases for the Maryland Democratic Party's legal objection (text from the legal filing presented in red:

34. Md. Code Ann., Elec. Law Art. § 6-203(a) provides that, to sign a petition, "an individual shall," in addition to signing the individual's name, "include the following information, printed or typed, in the spaces provided: (i) the signer's name as it was signed; (ii) the signer's address; (iii) the date of signing; and (iv) other information required by regulations adopted by the State Board." The statute this makes clear that the individual signer must print in her name and address next to her signature.

35. That requirement is also set forth in the State Board's regulation, COMAR § 33.06.03.06(B), which provides that when signing the signature page, "each signer shall . .. (2) Provide the following information to be printed or typed in the appropriate spaces: (a) Date of signing, (b) Signer's name as it was signed, and (c) Current residence address, including house number, street name, apartment number (if applicable), town and ZIP code" (emphasis added).

36. On the "Pre-Filled Petition" forms generated by MdPetitionis.com, the signer has not, as required by section 6-203(a) "included" her printed name and address, nor has the signer "provided" that information as required by COMAR § 33.06.03.06(B). Rather, the information has been "included" and "provided" by a computer program created and operated by the petition sponsors, MDPetitions.com, through the Internet.

Essentially the Democrats' arguments comes down to the meaning of the word "provide." They argue that petition signers who used MDPetitions.com to download their petitions did not provide the necessary information - rather MDPetitions.com did. This is a poor argument and rests on a very specific and inappropriate understanding of the word "provide." The Democrats clearly argue that a petitioner can only provide the required information if they personally type or hand write it. But a full reading of Maryland election law concerning petitions makes rather clear that provide actually means - a petitioner must provide the needed information to the appropriate election authority and the information is to be contained in the petition document.

So, when a person goes to MDPetitions.com and enters their information and downloads a petition with much of their information already filled in they are simply taking the steps necessary to provide the proper election authority with the required information. By printing and signing the form the petitioner has provided the information.

In a subsequent paragraph, Democrats claim the MDPetitions.com process is equivalent to providing a pre-filled petition,

38. That such "Pre-Filled Petitions" violate the requirements of state law even as interpreted by the State Board itself is confirmed by the current version of the State Board's Petition Signature Gathering "Frequently Asked Questions," posted on the State Board's website during 20 II, which stated:

"Can a petition sponsor pre-print signatures pages with voters' names and addresses, so that if a voter agrees to sign the petition, the voters need only fill in his or her signature, date of birth, and date of signing?

No."

39. The current updated version of those Petition Signature Gathering "Frequently Asked Question," posted on the State Board's website as of the date hereof, similarly states:

"Can a petition sponsor use a 'walking list' containing all registered voters' names and addresses, so that if a voter agrees to sign the petition, the voter need only fill in his or her signature, date of birth and date of signing?

No."

The "Pre-Filled Petition" form constitutes precisely such a "walking list." If a voter wanted to sign the pre-filled petitions generated by MdPetitions.com, the voter would "need only fill in his or her signature, date of birth and date of signing."

Again, the Democratic Party's argument is a bit too narrow here. A petition downloaded from MDPetitions.com is not precisely the same as a "walking list" or a "pre-filled petition" as discussed on the State Board of Elections FAQ. MDPetitions.com does not pre-print signatures pages with voters' names and addresses. Rather the person downloading and signing the petition prints the form after accessing it using their voter registration information.

Likewise, MDPetitions.com does not provide a 'walking list' containing all registered voters' names and addresses, so that if a voter agrees to sign the petition, the voter need only fill in his or her signature, date of birth and date of signing? Again, the actual petition signator must access and download the form that they then sign and submit. In both the case of a walking list and pre-filled petition the signer is a passive participant at every stage accept signing the form. The MDPetitions.com process requires that the signer actively initiate the process - there is a clear difference.

Democrats then turn to the "fraud" argument:

40. There are sound policy reasons for requiring, as the statute and regulations clearly do, the  petition signer to fill in his or her own information on the form, rather than allowing that information to be filled in by someone else. Anyone-including someone other than the voter-using the MDPetitions.com website who knows the name, zip code and birth date of any Maryland voter could have the website generate a "Pre-Filled Petition Form" with that voter's information pre-printed, both in the signing block and the circulator's affidavit. The user (who is not the voter) could then print out the form, sign the voter's name in the signature space and in the circulator's affidavit and mail the form to MDPetitions.com for submission to the Secretary of State and State Board.

41. In the situation described in the preceding paragraph, there is absolutely no procedure or step in the statute, regulations or State Board practice that could detect the fraud. Nothing in the statute or regulations requires the local boards or State Board to check the signature of the person purportedly signing against the voter registration records, and it is the practice of the local boards and State Board not to do so.

The Democrats' argument here being that the MDPetitions.com has made petition fraud almost as easy as vote fraud - given that it would still be a bit easier to vote as someone else in Maryland than to download a petition pretending to be someone else.

In one of the most infuriating arguments put forth by the Maryland Democratic Party, they argue that no person may be a witness to her or his own signature.

44. Article XVI, section 4 of the Maryland Constitution provides that, "There shall be attached to each paper of signatures filed with a petition an affidavit of the person procuring those signatures that the signatures were affixed in his presence that, based upon the person's best knowledge and belief, every signature on the paper is genuine and bona fide .... "

45. Md. Code Ann., Elec. Law § 6-204(a) requires that "Each signature page shall contain an 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." Section 6204(b) provides that, "The affidavit shall contain the statements, required by regulation, designed to assure the validity of the signatures and the fairness of the petition process."

46. The State Board's regulations, COMAR § 33.06.03.08, provides that the circulator's affidavit "shall state that ... (3) The circulator personally observed each signer as the page was signed; and (4) To the best of the circulator's knowledge and belief, all (a) signatures on the petition are genuine, and (b) Signers are registered voters in the State."

47. The manifest purpose of the requirements set forth in Md. Constitution Art. XVI, § 4 and Md. Code Ann., Elec. Law §§ 6-204(a) and (b) is to help prevent fraud by having an individual witness persons signing the petition and having that individual-the circulator swear that the person who signed the petition actually tilled in her own information and signed her own name in the presence of the circulator. That purpose is utterly defeated by allowing a circulator to attest to his or her own signature.

48. Permitting a circulator to attest to his or her own signature is contrary to the plain language ofMd Const. Art. XVI, § 4 and Md. Code Ann., Elec. Law § 6-204(a) that the signature be affixed "in the presence of the" circulator and that the circulator "personally observe" each signer as the page was signed. No person can serve as a witness to his or her own actions.

49. Nevertheless, the State Board counted as valid a number of signatures of persons who attested to their own signature as the circulator. Those signatures are invalid as a matter of law.

So, according the Democrats' argument, you can only submit your signature on a petition if someone else was circulating the petition. According to them, if you were the sole signatore too bad. If you were the circulator and signed your own petition in addition to other voters - too bad - your signature should be tossed.

The actual section of state law reads (in purple):

§ 6-204. Circulators; affidavit of the circulator.

(a) In general. — Each signature page shall contain an 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.
(b) Requirements. — The affidavit shall contain the statements, required by regulation, designed to assure the validity of the signatures and the fairness of the petition process.
(c) Age of circulator. —A circulator must be at least 18 years old at the time any of the signatures covered by the affidavit are affixed. (An. Code 1957, art.33, § 6-204; 2002, ch. 291, §§ 2, 4.)

Nowhere does this indicate that a person cannot be witness to their own signature. In fact, Article XVI, Section 4 of the Maryland Constitution reads:

SEC. 4. A petition may consist of several papers, but each paper shall contain the full text, or an accurate summary approved by the Attorney General, of the Act or part of Act petitioned. There shall be attached to each paper of signatures filed with a petition 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. The General Assembly shall prescribe by law the form of the petition, the manner for verifying its authenticity, and other administrative procedures which facilitate the petition process and which are not in conflict with this Article (amended by Chapter 548, Acts of 1976, ratified Nov. 2, 1976; Chapter 849, Acts of 1982, ratified Nov. 2, 1982).
Again, there is no suggestion that the person procuring the signatures cannot as well be a signator. To suggest that state law prohibits a person from being the sole signator on a petition is to deny the very right to petition as provided by the state Constitution.

Finally, in paragraphs 50-65 Democrats resort to the Sauerbrey argument. They argue based "On information and belief" - and one can assume it is more the latter than the former that the state Board of Elections improperly accepted as valid petitions where the signator's printed name and signature were not a perfect match or where there was a discrepancy with the signature matching the voter registration information. Also based "On information and belief" they argue some addresses were not provided in a matter consistent with state law. They further argue some contained dates that were not in the proper format and that some signatures were simply fraudulent. In paragraph 62 they simply declare some some signatures are null and void because they believe the same person signed for more than one person. Having made that declaration, they then make the logical next step - if indeed one person signed for two people then the circulator's affidavit of authenticity must be null and void as well, meaning every signature on the submitted petition should be tossed.

In 1994, Republican Ellen Sauerbrey lost the gubernatorial election to Parris Glendening by a scant 5,993 votes. Almost immediately Sauerbrey contended massive vote fraud - one assumes based "on information and belief." Sauerbrey acted as if she was the governor-elect even attending a meeting of the National Governors Association held weeks after the election. Her lawsuit and allegations of massive vote fraud went nowhere. Her refusal to accept the outcome of the election destroyed her reputation and made her a punchline in Maryland politics.

By law, the state Board of Elections is tasked with validating signatures on petitions for referenda. They check for correct addresses, correct dates, matching signatures. The Board of Elections determined that roughly 10% of the signatures submitted were invalid - but that  59,201 signatures were accepted by the board - roughly 4,000 more than the 55,736 needed to put the map on the ballot for a referendum. Maryland Democrats' are now claiming the Board of Elections did not do it's job.

In all, I find the arguments put forth by the Maryland Democratic Party to be very weak. That they had to resort to parsing the meaning of "provide" or claiming that a person could not be the sole signator on a petition is evidence of the weak case. The claims of fraud... well they sound like the same unsubstantiated fraud claims the GOP has used in other states to justify voter ID laws. One hopes a judge will simply dismiss the case. Either way, the legal challenge does great damage to the credibility of the Maryland Democratic Party. The congressional map at the center of the petition drive is itself an insult to the voters of the state. As argued by the editors of the Washington Post:

"The map, drafted under Mr. O’Malley’s watchful eye, mocks the idea that voting districts should be compact or easily navigable. The eight districts respect neither jurisdictional boundaries nor communities of interest. To protect incumbents and for partisan advantage, the map has been sliced, diced, shuffled and shattered, making districts resemble studies in cubism... Federal officials or the courts will ultimately judge whether Mr. O’Malley’s plan is illegal under the Voting Rights Act. The broader question is whether it promotes fair and rational democracy. Anyone looking at the map can answer that one."

Denied the right to fair representation under the map adopted by the General Assembly and signed by the governor voters exercised the only option they had to prevent the partisan power grab represented by the map - the right to petition. State Democrats now want to deny that right as well.

No one disputes that this kind of brazen partisan gerrymandering is employed by Republicans and Democrats. These maps undermine the concept of representative Democracy and do harm to the nation. Not all voters enjoy the same rights as do Marylanders to challenge the map via petition and referendum. If Marylanders stand up against this abuse of process and reject the map, it may be just the push needed to convince Congress to impose on all states a non-partisan process for redistricting.

One can only hope the Democratic Party's legal challenge is dismissed and that the people will be heard.