Two Rulings, More to Come

We spent a fascinating day at the old courthouse in Rockville today, listening to arguments in the suit against the Mongtomery County Board of Elections. The Board verified petition signatures for a referendum pushed by the Citizens for a Responsible Whatever to re-legalize discrimination against transgender people. Equality Maryland looked at the petitions and found eighty-seven kinds of violations on them, and a group of citizens sued the Board, saying they verified the signatures without checking them thoroughly.

The Board of Elections took an interesting approach. Their lawyer suggested it's not their job to see that the Citizens for Whatever collect signatures correctly, they don't have an investigatory staff and they can't check on every little thing. Anybody can pass around petitions, the Board doesn't have people to go around and see that the signature-gatherers are truthful about what the petition means, that the people who sign are really who they say they are, and so on. In fact, the Board seemed to be saying that they are only charged to make sure that signatures correspond to registered voters. The lawyer pointed out that the Board doesn't have handwriting experts to confirm that the actual person signed the petition.

Nobody wanted to take the position that the CRW had done the right thing. I didn't hear anybody on either side imply or assert that the signatures were actually all right, that wrongdoing had not occurred. It seemed to me that everybody understood that there were problems.

At one point, Judge Robert Greenberg used an example in a question, he asked the Board's lawyer what would happen if they looked at a sheet of signatures and they were all signed in the same handwriting. There wasn't much of an answer to this, the Board doesn't seem able to do much even when the signatures are obviously fake. A few minutes later, when the plaintiffs' attorney Jonathon Shurberg got his turn, he immediately put up a slide showing a petition where exactly that had happened -- the whole page was signed in the same handwriting, and it was the same handwriting as the person who certified the page! And, he said, that person had submitted a hundred thirty two pages of signatures, which should all be presumed fraudulent and thrown out.

It appeared that the Board was making an effort to get the CRW involved in the case, but the judge wasn't buying it. It doesn't matter who collected the signatures, this lawsuit says that the Board failed to check them properly before verifying them as being valid. The judge also made a good point: the Board and the CRW both want the same thing, they both want the referendum to be on the ballot in November. For different reasons, of course; the CRW wants to make it legal again to discriminate against transgender people, and the Board doesn't want the blot on its name for having lost this suit.

On the other side of the room, a couple of lawyers from Lambda Legal were introduced and accepted by the judge at the plaintiffs' table.

Judge Greenberg did rule on two issues before lunch. He actually said at the start of the day that he thought he knew how he would rule on a couple of things. First, he ruled in favor of the Board on the "sufficiency" of the petitions. The plaintiffs had argued that the wording on the top of the petitions was inaccurate and may have misled people, the judge said, no, it was okay. Second, he ruled that the plaintiffs had missed a 10-day deadline for filing a complaint about the first batch of signatures.

Let me back up. Referendum petitions are submitted in two batches. In this case, it was determined that 25,001 signatures were needed in total to get this on the ballot, for five percent of the registered voters. The CRW needed to have half that amount by a deadline. The group met that deadline and the Board agreed that there were 12,500 valid signatures and authorized them to get the second half. The plaintiffs had said that signatures from the first batch should have been thrown out, but they had ten days to file that complaint and they missed the deadline. Their argument was that no one told them that the first batch had been submitted and verified, even when they called the Board's office, so how could they know when the ten days was up? The judge saw it the other way, he said the Board shouldn't have to notify everybody in the world, it sent a letter to the County Council and that's all they had to do. There is an honest problem in this part of the law, as the law is written for people to complain when their petitions have been turned down, ignoring the case where the petitions are verified but somebody else wants to complain. Well, he had to rule one way or the other, and he did.

So the judge ruled in the Board of Election's favor on two technical issues. Now they're working on the big issue, which is whether the Board properly certified the second batch of signatures. There's no deadline there, and no technical issues. There is a question about the strictness with which the law should be applied. The law is clear, middle initials have to match the voter registration and other picky things, but there is also a part of the law that says that the idea is to verify that the person signing the petition is the same person who registered to vote, a commonsense thing. Will the judge require all the details to match up, as the law requires, or will he accept anything reasonable?

The plaintiffs' attorney, Jonathon Shurberg, ended his presentation with a good point. He handed the judge a paper that appeared to be a petition all filled out. He said that he had gone to the white pages of the phone book and found all the information he needed to fill out the petition. He noted, however, that the phone book doesn't have middle initials. "Anybody can get this information," he said. "This law makes sure somebody doesn't do that."

I thought it was good, and it seemed to throw the judge, too. It does appear that in some cases somebody just wrote in names, maybe they got them from the phone book, maybe somewhere else. Shurberg made a good point that sometimes you have to use your actual formal name when you sign something. In this case, people are trying to overturn a law that was unanimously adopted by our elected officials, and the rules should be followed strictly.

The afternoon was not so interesting. Mainly the people in the courtroom -- there were about thirty five people there for the morning session, fewer in the afternoon -- watched lawyers and paralegals carry boxes of petitions back to the judge's chambers, where the lawyers were meeting and discussing with the judge. Somebody said they saw the lawyers from the two sides having a long talk outside by the fountain, I'm sure there's a lot of negotiating going on.

You know I'd love to tell you what I think is going on, but I'll wait. I don't know anything anyway.

This courthouse is cool, I think. It was built in 1891, the plaque says. This room had stained glass windows with sunbeams streaming in, cherry and oak furniture, it looked like. It was like something out of Perry Mason, with fifteen jurors' chairs swiveled along an old window and a dumb-looking picture of George Washington on the front wall. I remembered it being hot in there, and thought maybe there was no air conditioning, but it was nice and cool. There was a bit of an echo off those high ceilings but you could hear almost everything that was said clearly enough.

Today there were a few CRW supporters in the courtroom, mostly they sat on the left-hand side near the back. There were quite a few supporters for our side, several transgender people who really care about how this comes out, some gay activists, volunteers who have helped with the petitions, people with transgender relatives and friends, and curious people. We sat on the right-hand side.

Tomorrow there will be more arguments, I think, and everybody seems to expect a ruling. The judge can't wait too long, because they have to print up ballots for the November election.