Whitley v. Maryland State Board of Elections

ADKINS, J., dissenting. I cannot endorse the Majority’s disregard for our plain-meaning rule of statutory construction, 1 and its conclusion that the signer and circulator of a referendum petition can be the same individual. When engaging in statutory interpretation, this Court’s “paramount objective [is] to ascertain and give ¹⁶⁴ effect to the intent of the legislature.” General Motors Corp. v. Schmitz, 362 Md. 229, 236 , 764 A.2d 838, 842 (2001). This “quest ... begins with the text of the statute.” Huffman v. State, 356 Md. 622, 628 , 741 A.2d 1088, 1091 (1999).

We examine the text and apply its plain meaning, using “a common sense perspective” of how the statutory language is commonly understood. Id. The Plain Meaning of the Text 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.... ” Md. Const, art. XVI, § 4 (emphasis added).

The Election Law Article states 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.” Md.Code (2002, 2010 RepLVol.), § 6-204 of the Election Law Article (emphasis added). The Code of Maryland Regulations (“COMAR”) developed by the Board of Elections requires that “[t]he affidavit shall state that ... [t]he circulator personally observed each signer as the page was signed.” COMAR 33.06.03.08 (emphasis added). These provisions of Maryland law clearly direct a circulator to procure the required number of signatures for referendum and then attest that she personally observed those signatures being affixed in her presence. Reading these provisions would lead any ordinary person to understand that their obvious and plain meaning contemplates the involvement of two different people: a circulator and a signer.

The circulator goes out and procures the required number of signatures from registered voters and then attests that he personally observed these signers affix their signatures in the circulator’s presence. With a disdainful eye, the Majority calls this plain meaning interpretation of the law “hypertextual.” Maj. Op. at 158-59, 161, 55 A.3d at 53, 54-55. What the Majority ignores, however, is that this supposed “hypertextual” reading is exactly what ¹⁶⁵ this Court is required to do when interpreting a statute.

This Court must read the relevant constitutional and statutory provisions and apply their plain meaning. See Huffman, 356 Md. at 628 , 741 A.2d at 1091 . Making up a disdainful term, like “hypertextual,” 2 does not justify a departure from the well-settled plain meaning rule. Ignoring the plain meaning of the constitutional and statutory provisions, the Majority stretches the statute to include matters not clearly within its provisions.

See State v. Christhilf, 170 Md. 586, 592 , 185 A. 456, 458 (1936) (“[I]t is not the duty or province of a court so to stretch the provisions of a statute as to ... gather in objects not contemplated by the legislature or not clearly falling within its provisions.”). The Majority holds that the provisions permit self-circulation because the language “did not require expressly that the signer and circulator be different persons.” Maj. Op. at 159, 55 A.3d at 53. This reasoning, however, imports into the relevant provisions something that is not there.

It takes the absence of an explicit distinction between circulator and signer and draws from it an inference of an affirmative right to self-circulate referendum petitions. The Majority is wrong to draw this inference from the statute and allow it to prevail over the plain meaning of the text. See Gorman v. Atlantic Gulf & Pacific Co., 178 Md. 71, 75 , 12 A.2d 525, 527 (1940) (“[T]he court may not allow an inference to prevail against the manifest intention of the Legislature.”). Such a holding abandons this Court’s “paramount objective to ascertain and give effect to the intent of the legislature ... [by looking] first to the plain language of the statute.” Schmitz, 362 Md. at 236-37 , 764 A.2d at 842 (citation omitted).

The Purpose of the Text Article XVI, § 6-204, and COMAE 33.06.03.08 obviously contemplate the involvement of two distinct individuals — a ¹⁶⁶ circulator and a signer. With this clear and unambiguous language, our inquiry would ordinarily end. See Brown v. State, 359 Md. 180, 188 , 753 A.2d 84, 88 (2000). We may, however, go on to consider the text in light of the purpose of the statute being interpreted.

Specifically, the plain meaning should be construed “as to carry out and effectuate, or aid in, the general purposes and policies” of the statute being interpreted. Johnson v. State, 75 Md.App. 621, 630 , 542 A.2d 429, 433 (1988). The purpose of § 6-204 of the Election Law Article, and the requirement of the circulator’s affidavit contained therein, “is to assure the validity of the signatures” and “clearly addresses prevention of fraud.” Montgomery County Volunteer Fire-Rescue Ass’n v. Montgomery County Bd. of Elections, 418 Md. 463, 478-79 , 15 A.3d 798, 807 (2010). Likewise, interpreting the requirement of the circulator’s affidavit contained in Article XVI, § 4 of the Maryland Constitution, this Court has stated: “The purpose of the requirement of the affidavit is to give a prima facie presumption of validity to the petition to which it is attached.” Tyler v. Secretary of State, 229 Md. 397, 404 , 184 A.2d 101, 104 (1962).

Therefore, the purpose of the circulator’s affidavit is two-fold. It is designed to prevent fraud in the first place, and second, if executed correctly, the affidavit creates a presumption that there is no fraud. This two-fold purpose of the circulator affidavit supports the plain meaning interpretation that there must be two different individuals — a circulator and a signer. Interpreting the statute to require separate circulators and signers directly carries out, effectuates, and aids the “uncontroverted purpose of preventing voter fraud.” Maj.

Op. at 163, 55 A.3d at 56. The existence of the separate circulator provides an independent check on the signer. The circulator is able to vouch that the signer did in fact appear before the circulator and did in fact sign the petition. Thus, the independent circulator prevents an individual from affixing multiple signatures to the petition, as each signer must personally appear in front of the circulator before her signature can be affixed to the petition. ¹⁶⁷ The Majority does not deny that this plain meaning interpretation furthers the prevention of fraud.

Instead, it says that it is not necessary to interpret the relevant provisions to further the purpose of § 6-204 because “the Election Law Article imposes independent penalties on individuals who commit voter fraud that are designed to shield the referendum process from consideration of petitions with insufficient signatures.” Maj. Op. at 159, 55 A.3d at 53. Specifically, the Majority reasons that the signer of the affidavit “is subject to the threat of a perjury prosecution” and “the Election Law Article provides a broad punitive scheme for individuals who” commit voter fraud. Maj.

Op. at 160-61, 55 A.3d at 54. Thus, the Majority holds that it is not necessary to have separate circulators and signers because these other provisions are sufficient to protect against fraud. Maj. Op. at 160-61, 55 A.3d at 54-55.

The Majority misses the mark. It is irrelevant whether the Election Law Article has additional safeguards built in that are also designed to prevent fraud. It is the duty of this Court to interpret every provision of the statute in light of its purpose. This Court cannot pick and choose among statutory provisions and decide that the threat of a perjury conviction is a better means of preventing voter fraud than requiring the circulator and signer to be different people.

The Legislature provided for both provisions, and as such, both provisions must be interpreted as a means of preventing fraud. Allowing for self-circulation does nothing to carry out, effectuate, or aid the general purpose of the statute to prevent fraud. The correct interpretation, therefore, is one that requires different circulators and signers. This gives affect to the plain meaning of § 6-204 while also furthering its purpose of preventing fraud. 3 ¹⁶⁸ The Plain Meaning of “Procure,” “Observe,” and “Presence” In one final attempt to justify its holding, the Majority says that it would reach the same conclusion even if it decided to engage in this “hypertextual” interpretation of the statute.

Maj. Op. at 161, 55 A.3d at 54-55. It quotes dictionary definitions for the terms “procure,” “observe,” and “presence,” and reasons that none of these definitions strictly demand the existence of two individuals. Maj.

Op. at 161-63, 55 A.3d at 54-56. The Majority concludes, therefore, that the circulator and signer may be the same person because neither the Constitution nor the statute says otherwise. The inferences that the Majority draws from these dictionary definitions, however, do not comport with the commonly understood meanings of these terms. See Morris v. Prince George’s County, 319 Md. 597, 606 , 573 A.2d 1346, 1350 (1990) (“To determine the most appropriate [meaning of a word] in given circumstances requires more than a glance at a dictionary.

It requires careful study of the context in which the word is used.”). Under the Majority’s definitions, the Legislature would have intended for a circulator to procure his own signature from himself; observe himself writing his own signature; and affix his signature in his own presence. This formulation is simply not logical. No one speaks in the manner in which the Majority now attempts to define these terms.

No one says that they “procure” something from themself. No one says that they “observe” themself perform an act. No one says that they are “metaphysically in his or her own presence.” Maj. Op. at 162, 55 A.3d at 55.

The definitions used by the Majority are not the commonly understood meanings of these words. We should examine the words “procure,” “observe,” and “presence” in context. ¹⁶⁹ Procure First, the Majority defines “procure” as “to get or obtain” or “to get possession of.” Maj. Op. at 161, 55 A.3d at 54-55. Contrary to the Majority’s interpretation, the common meaning of this definition involves two individuals.

One does not “get or obtain” something from herself. She gets or obtains something from someone else. Applying this common understanding of the word procure in this context, a person does not get or obtain her own signature. She procures, or gets or obtains, the signatures of others.

Understanding the term “procure” as requiring two individuals in this context is supported by this Court’s previous description of a circulator: “It is established ... that the one procuring the petitions or circulating them is the agent of the signers.... ” Tyler, 229 Md. at 403 , 184 A.2d at 104 . Implicit in this Court’s previous statement is that “the one procuring the petitions” is different from “the signers” of the petitions. The circulator procuring the petitions is acting as the agent for the individuals signing the petition. One does not act as an agent for herself.

If she were, then she would be the principal,