Howard County Citizens for Open Government v. Howard County Board of Elections

KEHOE, J. In their County Charter, the voters of Howard County have reserved to themselves the right to right to refer laws of their County Council to referendum. For a referendum question to secure a place on the ballot, petitions containing the signatures of at least 5,000 of the County’s registered voters must be filed within sixty days of the passage of the ordinance in question. The filing deadline may be extended for an additional thirty days if the sponsor of the referendum effort submits petitions containing at least 50% of the required signatures within the initial deadline. Howard County Citizens for Open Government (“HCCOG”) sought to take a newly-enacted ordinance of the Howard County Council to referendum.

The Howard County Board of Elections (the “Board”) decided that HCCOG failed to submit petitions containing a sufficient number of valid signatures to extend the filing deadline. HCCOG, and others, 1 sought judicial review of the Board’s decision. The Circuit Court for Howard County affirmed the Board. HCCOG has appealed the court’s judgment and presents the following questions, which we have reworded slightly: ⁶⁰⁹ I. Whether the decision of the Board to invalidate previously approved registered voters on a referendum petition impermissibly burdened the citizens of Howard County in the exercise of rights secured by the Howard County Charter, State law and the Maryland Constitution?

II

Whether the Board’s retroactive application of the Doe v. Montgomery County, 406 Md. 697 [ 962 A.2d 342 ] (2008), voter verification standards was unreasonable; or, in the alternative, whether the Doe standards themselves, as applied by the Board, and in light of Montgomery County Volunteer Fire-Rescue Assoc. v. Montgomery County Board of Elections, 418 Md. 463 [ 15 A.3d 798 ] (2011), impermissibly burdened the citizens of Howard County in the exercise of rights guaranteed by the Maryland Constitution and the Howard County Charter? 2 III. Whether the decision of the Board to invalidate previously qualified registered voters on a referendum petition was unreasonable? We affirm the judgment of the circuit court and, accordingly, the decision of the Board. Background On November 3, 2008, the Howard County Council passed Council Bill 58-2008, amending the Howard County Zoning Regulations to increase the maximum permitted size of a grocery store to be built in the Turf Valley community.

HCCOG sponsored a petition drive to submit the bill to referendum, pursuant to Howard County, Md. Charter § 211 ⁶¹⁰ (2008). 3 In light of the current number of registered voters in the County, § 211 requires a sponsor to submit petitions containing the valid signatures of at least 5,000 voters registered in Howard County within sixty days of the enactment date of the ordinance in question. Section 211 also provides that, if the sponsor obtains at least 2,500 valid signatures before the end of the sixty days, the sponsor will have an additional thirty days to obtain the remaining required signatures. On November 17, 2008, and November 19, 2008, HCCOG filed a request with the Board seeking a determination that the form and content of its proposed referendum petition and signature sheet complied with State law. The Board responded in the affirmative on December 1, 2008.

HCCOG then began the process of circulating copies of the petitions and obtaining signatures. While there were several exchanges of ⁶¹¹ correspondence between the Board’s staff and HCCOG about matters related to the referendum drive, the topic of the legal requirements for valid signatures does not appear to have been addressed before HCCOG submitted petitions bearing 3,301 signatures to the Board on December 30, 2008, five days before the end of the initial sixty-day petition submission period. On the following day, Betty L. Nordaas, the Howard County Election Director 4 notified HCCOG that, because “more than one-half but less than the full number of signatures required” by the Charter had been filed within sixty days, HCCOG had an additional thirty days, or until February 4, 2009, to file the remaining signatures. How the Board staff came to this conclusion is unclear, but the Board now asserts that its staff failed to consider the provisions of EL § 6-203(a) 5 (which sets ⁶¹² out the information that must accompany a petition signature) in this process.

On January 22, 2009, Ms. Nordaas wrote to HCCOG informing it that the Board staff had completed the verification process 6 of the signatures contained in the initial submission and that 2,603 signatures were valid. On January 26, 2009, Gerald M. Richman, Esquire, the Board’s counsel in this appeal, was appointed as special counsel to the Board regarding the referendum effort. Mr. Rich-man alerted the Board’s staff to Doe v. Montgomery County, 406 Md. 697 , 962 A.2d 342 (2008), which had been filed on December 19, 2008. As we will discuss later in our analysis, the Court in Doe held that the provisions of EL § 6-203(a) were mandatory.

The Board’s staff then re-examined the signatures submitted by HCCOG to determine how many of them satisfied § 6-203(a)’s requirements. While all of this was going on, HCCOG continued its efforts to obtain signatures to the petition. It submitted an additional 6,079 signatures on February 3, 2009. On March 11, 2009, the Board received advice from the Attorney General’s office regarding the appropriate protocol for the verification and validation of petition signatures.

The Board held a meeting with representatives of HCCOG on March 12, 2009. In the meeting, Ann M. Balcerzak, the president of the Board, stated that the Board was reversing its previous decision that HCCOG had submitted at least one-half of the required signatures before the expiration of the initial, sixty-day deadline. She delivered to the representatives a letter of the same date from Ms. Nordaas, which ⁶¹³ constitutes the decision of the Board for this proceeding. It reads in pertinent part: On December 30, 2008, the HCCOG submitted Local Referendum Petitions, modified in accordance with Howard County Law containing 3,301 signatures.

On January 22, a determination was issued to HCCOG ... advising that 2,603 valid signatures were ... submitted and that it thereby became entitled to an additional period of 30 days or until February 4, 2009 to obtain the remainder of valid signatures necessary.... As I am certain you are now aware, the Court of Appeals of Maryland, on December 19, 2008 issued a published opinion titled: Doe v. Montgomery County Board of Elections, 406 Md. 697 , 962 A.2d 342 (2008). Counsel to the Howard County Board of Elections studied this opinion and advised the Board of Elections that a reassessment of the initial submission was necessary and appropriate based upon the clear principles and guidelines as outlined by Judge Battaglia in the Doe Opinion. The Doe court spent considerable time in setting forth the rationale related to the process of signing a referendum petition and in thereafter validating signatures on each petition.

Succinctly put, the Board of Elections found, after review of each signature on submitted local referendum petitions, that it did not validate each signature in accordance with the mandate set forth in Doe which requires an individual to sign his/her name as it appears on the statewide voter registration or place his/her surname of registration and at least one fall given name and the initials of any other names. The Opinion goes on to state that the requirements of subsection (a) must be satisfied in order to validate the signature. The Board of Elections has requested revised guidelines from the State Board of Elections, reference COMAR Title 33.06.05.02(A), in order to complete an additional detailed review of each signature on the Local Referendum Petitions. The State Board of Elections has contacted the Attorney General’s office in order to ensure the guidelines will be in agreement with the December 19, 2008 [Doe] ⁶¹⁴ opinion and is in the process of preparing the revised guidelines for Local Boards to use.

Based upon March 11, 2009 advice from the Attorney General’s office, the Board of Elections re-verified and validated the signatures on the petitions submitted on December 80, 2008. The Board found that the total number of valid signatures fell below the 2,500 signatures [ 7 ] necessary to permit an additional thirty day period in which HCCOG may obtain the remainder of signatures necessary to complete the petition requirements. (Emphasis in original.) On March 16, 2009, Mr. Richman wrote to HCCOG’s representatives confirming that the March 12 letter was “the final determination of the Board of Elections that the validated signatures contained in the Petition ... are insufficient to satisfy all requirements established by law.” HCCOG filed a petition for judicial review of the Board’s decision. 8 The parties submitted memoranda to the circuit court and the court held a hearing on the matter on November 13, 2009. The parties presented substantially the same arguments to the circuit court as they present to us, which we discuss later in our analysis.

The circuit court entered an ⁶¹⁵ order affirming the Board’s decision on April 27, 2010. In affirming the Board, the circuit court stated: The State may constitutionally limit, in a non-discriminatory and content neutral manner, the ability to initiate legislation---- Section 6-203 of the Election Law Article imposes nondiscriminatory content neutral restrictions. Therefore [HCCOG] has failed to demonstrate a violation of the right to vote. Because [the Board] properly applied the Doe standard in evaluating the signatures on the subject petition, a fact supported by substantial evidence, and because the total number of signatures fell below the 2,500 signatures required by Section 211 of the Howard County Charter, the decision of [the Board] that such threshold had not been met, and that any extension of time for the submission of additional signatures would not be allowed, is affirmed.

This appeal followed. Analysis I. Standard of Review In reviewing a circuit court’s decision in a judicial review proceeding, an appellate court “look[s] ‘through the circuit court’s ... decision! ], although applying the same standards of review, and evaluates the decision of the agency.’ ” People’s Counsel for Baltimore County v. Loyola College in Maryland, 406 Md. 54, 66 , 956 A.2d 166 (2008) (quoting People’s Counsel for Baltimore County v. Surina,, 400 Md. 662, 681 , 929 A.2d 899 (2007)). HCCOG’s contentions are limited to whether the Board committed an error of law in applying EL § 6-203 to the petition effort. Therefore, the deference that reviewing courts pay to factual findings made by administrative agencies, see, e.g., Surina, 400 Md. at 681 , 929 A.2d 899 , is inapplicable.

Courts typically do not defer to legal conclusions reached by agencies. Loyola, 406 Md. at 67 , 956 A.2d 166 ; Surina, 400 Md. at 682 , 929 A.2d 899 . We do afford a limited degree of deference, however, to an agency’s interpretations of ⁶¹⁶ laws or regulations that the agency itself has either promulgated or administers. Loyola, 406 Md. at 67 , 956 A.2d 166 (citing Marzullo v. Kohl, 366 Md. 158, 172 , 783 A.2d 169 (2001)).

However, the appropriate deference is finite. See Volunteer Fire, 418 Md. at 469 , 15 A.3d 798 (Court will not defer to agency’s interpretation of an unambiguous statute.); Christopher v. Dept. of Health, 381 Md. 188, 198 , 849 A.2d 46 (2004) (While a court ordinarily gives weight to an agency’s interpretation of a statute it administers, ‘‘[djetermining whether an agency’s ‘conclusions of law' are correct is always, on judicial review, the court’s prerogative.... ”).

II

Maryland Law In order to place HCCOG’s contentions in their proper context, we will briefly review the provisions of the Maryland Constitution that establish the right of referendum in this State, and the pertinent provisions of Title 6 of the Election Law Article, which sets out requirements for referendum petitions and petition signatures, and also prescribes the review process of both by the appropriate election board. A. Article XVI of the Maryland Constitution Ratified by the voters in 1915, 9 Article XVI reserves to the people of Maryland the power to petition to referendum most laws passed by the General Assembly. See Article XVI § l. 10 Article XVI § 3 grants the right to refer local public laws to ⁶¹⁷ referendum to voters in counties that do not exercise home rule powers. 11 By its terms, Article XVI does not apply to other units of local government. However, Article XI-F § 7, 12 reserves the referendum to voters in code counties.

The right of referendum is also conferred by implication to voters in charter counties by Article XI-A § 1. Ritchmount Partnership v. Board, 283 Md. 48, 61 , 388 A.2d 523 (1978) (The reservation of the right of referendum “directly affects the distribution of political power between the people of Anne Arundel County and their elected representative body ... and is thus a fundamental feature of the overall structure of county government.”). 13 Article XVI § 4 authorizes the General Assembly to enact legislation, not inconsistent with Article XVI, to “facilitate the ⁶¹⁸ petition process,” including procedures for verifying the authenticity of petitions and signatures. 14 The General Assembly first enacted such a statute in 1941. See 1941 Md. Laws 539 . The statute, codified as Md. Code Ann. Art. 33 § 169 (1957, 1964 Supp.), required a petition to show a signer’s residence, the precinct or district in which the signer is registered as a voter and, in addition to the signer’s signature, his or her printed or typed name.

See Barnes v. State ex rel. Pinkney, 236 Md. 564, 569 , 204 A.2d 787 (1964). Article 33 § 169 is the direct ancestor of EL 6-203. See Doe, 406 Md. at 729 , 962 A.2d 342 .

B. Current Statutory Provisions Subtitle 6 of the Election Law Article governs the referendum process, including requirements for petition signatures, § 6-203(a); signature validation, § 6—203(b); and signature verification, § 6-207. “Plainly, the overarching goal of the entire Petition Subtitle is to ensure that only eligible voters sign petitions.... ” Volunteer Fire, 418 Md. at 473 , 15 A.3d 798 . Section 6-203 states in pertinent part: ⁶¹⁹ § 6-203. Signers; information provided by signers. (a) In general.—To sign a petition, an individual shall: (1) sign the individual’s name as it appears on the statewide voter registration list or the individual’s surname of registration and at least one full given name and the initials of any other names; and (2) 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.

(b) Validation and, counting.—The signature of an individual shall be validated and counted if: (1) the requirements of subsection (a) of this section have been satisfied; (2) the individual is a registered voter assigned to the county specified on the signature page and, if applicable, in a particular geographic area of the county; (3) the individual has not previously signed the same petition; (4) the signature is attested by an affidavit appearing on the page on which the signature appears; (5) the date accompanying the signature is not later than the date of the affidavit on the page; and (6) if applicable, the signature was affixed within the requisite period of time, as specified by law. In Doe, 406 Md. at 732-33 , 962 A.2d 342 , the Court of Appeals held that the requirements of § 6-203(a) are mandatory, rather than suggestive. Writing for the Court, Judge Battaglia explained that the process for the validation of ⁶²⁰ signatures pursuant to § 6-203(b) was distinct from the verification procedure authorized by § 6-207 15 because: The purpose of validation, relating to whether the signature is sufficient, is to “provide additional means by which fraudulent or otherwise improper signatures upon a referendum petition may be detected,” see Barnes, 236 Md. at 571-72 [ 204 A.2d 787 ], while the purpose of signature verification, ⁶²¹ relating to the existence of registration of the voter and the signature count, is to “ensure that the name of the individual who signed the petition is listed as a registered voter.” Section 6-207. 406 Md. at 732, 962 A.2d 342 . Finally, the Court held that the right to judicial relief did not accrue until a party became aggrieved by an election board’s final decision.

The Court declared that, where, as in Doe , a petition drive is successful at the board level, the final decision of the board is its determination that the referendum petition satisfied all legal requirements, including the requisite number of signatures, pursuant to EL § 6-208(b). 16 Doe, 406 Md. at 718 , 962 A.2d 342 . 17 Doe was filed on December 19, 2008, a few days prior to HCCOG’s submission of the petitions bearing 3,301 signatures. The Board’s staff was unaware of the Doe opinion when it conducted its initial validation and verification reviews of those signatures. After its initial reviews, the Board concluded that ⁶²² HCCOG had submitted more than the 2,500 validated and verified signatures required for a thirty-day extension of the submission period. When informed of Doe, the Board staff retraced its steps, and concluded that there were fewer than 2,500 validated and verified signatures and that HCCOG had therefore failed to meet the threshold.

We now turn to HCCOG’s objections to the process and the result.

III

The Board’s Application of EL § 6-203 to HCCOG’s Petition HCCOG’s principal contention is that the Board erred in applying the requirements of EL § 6-203 to HCCOG’s petitions. In essence, HCCOG’s argument runs as follows: the right to referendum is a fundamental right guaranteed by the Maryland Constitution, Maryland law and the Howard County Charter. Because a voter’s right to take a legislative enactment to referendum is fundamental, any regulation of the referendum process is subject to strict scrutiny review. Under strict scrutiny, such regulations are invalid unless the court finds that it furthers a compelling government interest and is narrowly tailored to serve that interest, so as to minimize interference with the exercise of the protected right.

HCCOG asserts that there is no compelling government interest at issue in this case, because there is no evidence of voter fraud or other impropriety. HCCOG claims that the Board’s application of EL § 6-203, as construed by the Court of Appeals in Doe , unreasonably burdened the rights of Howard County’s voters to participate in the referendum process by changing the standards for signatures in the middle of its referendum drive. 18 ⁶²³ We find HCCOG’s arguments to be unpersuasive, for the following reasons. Section 6-203(a) does not conflict with Article XVI of the Maryland Constitution. While the referendum process enjoys a considerable degree of constitutional protection, the State may regulate the referendum process in a reasonable, content neutral, nondiscriminatory manner.

The Howard County Charter does not restrict the State’s authority to set standards for referendum petitions. Second, § 6-203 is a reasonable and content neutral regulation of the referendum process. The Board’s action in undertaking a second review process to assure that the petition signatures complied with the requirements of the statute did not unduly burden the supporters of the referendum effort. We begin by noting that, while Doe cited Barnes with approval, 406 Md. at 729-30, 962 A.2d 342 , and stated in passing that “the mandatory signature requirements of § 2-603(a)(1) are not unduly burdensome ...,” id. at 732 n. 28, 962 A.2d 342 , Doe did not involve a direct constitutional challenge to the statute.

Id. at 704 , 962 A.2d 342 (setting out the issues for which a writ of certiorari had been granted). Therefore, we will consider whether § 6-203 passes constitutional muster in two contexts, first, the right of referendum established in Article XVI of the Maryland Constitution and second, the right of free speech guaranteed by the First and Fourteenth Amendments of the United States Constitution. 19 ⁶²⁴ A. Is 6-203(a) Consistent with Article XVI? Our analysis of this issue starts with Barnes . The Barnes case grew out of a challenge to the State’s Public Accommodations Law 20 on the basis that the Secretary of State illegally refused to accept a petition to submit the statute to referendum.

The Secretary rejected a number of signatures that complied with the then-existing requirements of Article XVI, § 4, but did not meet then Article 38 § 169’s requirement that a petition’s signature sheet show the signer’s residence, contain a typed or printed version of the signer’s name and identify the precinct or voting district in which the signer resided. 236 Md. at 570 , 204 A.2d 787 . Barnes contended that § 169 was inconsistent with Article XVI § 4 of the Constitution and was thus invalid. Id. at 567, 204 A.2d 787 . In analyzing the argument, the Court stated: These statutory requirements pertain only to the identification of the signer.

They do not affect the Constitutional provision with respect to the affidavit of the person who procured the signatures, except insofar as they may provide means of checking the truth of the affidavit.... Clearly, the provisions of the Article will be furthered if, by proper and reasonable means, a referendum petition is to be put upon the ballot only if it has the requisite number of genuine signatures of registered voters. We hold that the statutory ⁶²⁵ provisions are not in conflict with Section 4 of Article XVI of the Constitution. Id. at 571 , 204 A.2d 787 .

We now turn to the current statute. Section 6-203(a) requires a signer of a petition to “sign the individual’s name as it appears on the statewide voter registration list or the individual’s surname of registration and at least one full given name and the initials of any other names” and to include the following information, whether typed or printed: “(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.” 21 A significant change between § 6-208 and the statute at issue in Barms is that § 6-203 requires the signature to either match the name on the voter registration list or, at a minimum, to contain the same surname and “at least one full given name and the initials of any other names.” In addition, § 6-203 omits the requirement that a signer identify his voting precinct. These requirements are not inconsistent with Article XVI § 4 because the constitutional provision addresses only the form and contents of the affidavit to be signed by the person procuring the signatures on the petition sheet. Taken as a whole, § 6-203(a)’s requirements do nothing more than “ ‘provide additional means by which fraudulent or otherwise improper signatures ... may be detected.’ ” Doe, 406 Md. at 733 , 962 A.2d 342 (quoting Barnes, 236 Md. at 571-72 , 204 A.2d 787 ).

Based upon Barnes, 236 Md. at 571-72 , 204 A.2d 787 , we hold that § 6-203(a) is consistent with the provisions of Article XVI § 4. B. Does § 6-208 Impose an Unreasonable Burden on the Right of Referendum? HCCOG cites Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 186 , 119 S.Ct. 636 , 142 L.Ed.2d 599 (1999), along with other federal decisions, as standing for the proposition “that the right of referendum, ⁶²⁶ once granted, enjoys a mantle of protection under the First Amendment, safeguarding it from impermissible burdens.” HCCOG asserts that § 6-203, as applied to its petition drive, is just such a burden. HCCOG’s arguments are not persuasive.

The referendum process is a “ ‘basic instrument of democratic government.’ ” Ritchmount, 283 Md. at 61 , 388 A.2d 523 (quoting Eastlake v. Forest City Enters., Inc., 426 U.S. 668, 679 , 96 S.Ct. 2358 , 49 L.Ed.2d 132 (1976)). Moreover, the act of circulating a referendum petition can constitute “ ‘core political speech’ because it ‘involves interactive communication concerning political change.’ ” Buckley, 525 U.S. at 186 , 119 S.Ct. 636 . Such activity is afforded “First Amendment protection ... at its zenith.” Id. at 187 , 119 S.Ct. 636 . On the other hand, states have an “undoubtedly important interest in protecting the integrity and reliability of the initiative process.” Doe v. Reed, — U.S. -, 130 S.Ct. 2811, 2819 , 177 L.Ed.2d 493 (2010); see also Buckley, 525 U.S. at 191-92 , 119 S.Ct. 636 (States “allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally....”).

The tension between the concepts of “constitutional protection at its zenith” and “considerable leeway” is resolved on a case-by-case basis and the Supreme Court has noted that there is “ ‘no litmus-paper test’ [to] separate valid ballot-access provisions from invalid interactive speech restrictions. ...” Id. at 192 , 119 S.Ct. 636 (quoting Storer v. Brown, 415 U.S. 724, 730 , 94 S.Ct. 1274 , 39 L.Ed.2d 714 (1974)). Instead: A court considering a challenge to a state election law must weigh the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate against the precise interests put forward by the State as justifications for the burden imposed by its rule, taking into consideration ⁶²⁷ the extent to which those interests make it necessary to burden the plaintiffs rights. Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance.

But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions. Burdick v. Takushi, 504 U.S. 428, 433-434 , 112 S.Ct. 2059 , 119 L.Ed.2d 245 (1992) (citations and internal