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Parrott v McDonough MD Gerrymander Cert 01445_172298

Parrott v McDonough MD Gerrymander Cert 01445_172298

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FILED THE COURT APPEALS MARYLAND 
September Term, 2012 Clerk Court tpperi.ls Maryland 
No. 

NEIL PARROTT, al. 
Petitioners, 
JOHN MCDONOUGH, al., Respondents. 
PETITION FOR WRIT CERTIORARI THE COURT SPECIAL APPEALS MARYLAND 

Court Special Appeals Maryland, Case No. 01445 
Circuit Court for Anne Arundel County, Case No. 02-C-12-172298 
Paul Orfanedes 
Robert Popper 
Chris Fedeli 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Ste. 800 Washington, 20024 
(202) 646-5172 
Attorneys for Petitioners Neil Parrott and MDPetitions.com 
August 22, 2014 

STATEMENT THE CASE 
Petitioners seek this Courts review remedy the illegal November 2012 vote Marylands new congressional districts.  Marylands recent congressional redistricting split its districts into highly unusual shapes, one resembling a broken-winged pterodactyl, lying prostrate across the center the State.1 However, the ballot failed give voters any inkling the dramatic changes this gerrymandering made their congressional districts.  Indeed, the ballot did not even inform voters that the gerrymandered redistricting made any changes all Marylands existing congressional districts. Instead, the language Question suggested that Senate Bill (SB 1) was required reauthorization the existing congressional districts, which otherwise would have sunsetted expired.  Question was, therefore, calculated mislead. mere words, the substantive portion Question was far shorter than even the legislative title  Question its entirety, asked Marylanders vote for against Congressional Districting Plan described simply follows: 
Establishes the boundaries for the States eight United States Congressional 
Districts based recent census figures, required the United States Constitution. 
Under credible reading did the above language inform voters  allow them infer 
 that the referendum asked them approve dramatically changed congressional districts. therefore remains unknown whether Marylanders prefer gerrymandered Parrott McDonough, Case No. 1445, Court Special Appeals Maryland, pp. 3-4  (Slip Op. July 23, 2014), quoting Fletcher Lamone, 831 Supp. 887, 902 n.5 (D. Md. 2011). 
districts, they are concerned whether congressional districts bear any relationship local communities geographic county and municipal boundaries. 

REFERENCE ACTION LOWER COURT 
The matter was docketed the Circuit Court for Anne Arundel County Parrott, al. McDonough, al., Case No. 02-12-172298.  The plaintiffs were Delegate Neil Parrott, member the Maryland House Delegates, and MDPetitions.com, and the defendants were John McDonough, his official capacity the Maryland Secretary State, Linda Lamone, her official capacity State Administrator Elections, and the State Board Elections. September 2012, the circuit court denied plaintiffs Motion for Summary Judgment and granted defendants Cross-Motion for Summary Judgment.   

STATEMENT REGARDING COURT SPECIAL APPEALS 
The matter was docketed the Court Special Appeals Parrott, al. McDonough, al., Case No. 01445.  The parties fully briefed the matter before the Court Special Appeals, and filed Joint Record Extract 212 pages March 19, 2013. Oral argument was heard October 2013. July 23, 2014, the Court Special Appeals issued opinion affirming the lower courts judgment full.   

STATEMENT REGARDING FINAL JUDGMENT AND JURISDICTION 
The opinion the Court Special Appeals affirming the lower court judgment adjudicated all claims the action their entirety, and the rights and liabilities all parties the action. final judgment. This Court has jurisdiction.  Md. Code Ann., Cts. Jud. Proc.  12-201; 12-203; Rule 8-301(a)(3). 

QUESTIONS PRESENTED FOR REVIEW Was the ballot language Question impermissibly vague and misleading 
violation Maryland law? Should this Court find the referendum results null and void and order re-vote 
Question 

CONSTITUTIONAL PROVISIONS, STATUTES,
 ORDINANCES AND REGULATIONS
 
The pertinent constitutional provision and statutes involved this petition are: 
Md. Const. art. XVI,  5(b) 
All laws referred under the provisions this Article shall submitted separately the ballots the voters the people, but containing more than two hundred words, the full text shall not printed the official ballots, but the Secretary State shall prepare and submit ballot title each such measure such form present the purpose said measure concisely and intelligently. The ballot title may distinct from the legislative title, but any case the legislative title shall sufficient. Upon each the ballots, following the ballot title text, the case may be, each such measure, there shall printed the words For the referred law and Against the referred law, the case may be. 

Md. Election Law Code Ann.  7-103(b) 
General Guidelines  Each question shall appear the ballot containing 
the following information: 
(1) question number letter determined under subsection (d) this section; 

(2) brief designation the type source the question; 

(3) brief descriptive title boldface type; 

(4) condensed statement the purpose the question; and 

(5)
 the voting choices that the voter has. 

Md. Election Law Code Ann.  9-203 
Each ballot shall: 
(1) easily understandable voters; 

(2)
 present all candidates and questions fair and nondiscriminatory manner; 

(3)
 permit the voter easily record vote questions and the voter's choices among candidates; 

(4)
 protect the secrecy each voters choices; and 

(5)
 facilitate the accurate tabulation the choices the voters. 

STATEMENT FACTS 
There are disputed facts relevant this petition. 2011, the Maryland General Assembly redrew Marylands congressional districts into complex shapes that have since garnered national attention.  For example, Marylands Third Congressional District has been described the Ugliest Congressional District America, The Pinwheel Death, and broken-winged pterodactyl, lying prostrate across the center the State.  See Parrott Brief the Court Special Appeals, filed March 19, 2013 (Parrott Br.) 4-5; See also Joint Record Extract (E-__) E-166. 
Upon placement the Districting Plan the ballot for referendum, newspaper editorial support for repealing the gerrymandered districts was overwhelming.  Voters were urged vote repeal the gerrymandered districts the editorial boards the Baltimore Sun, the Annapolis Capital Gazette, the Carroll County Times, the Gazette, the Washington Post, the Washington Examiner, and Washington Jewish Week.  Parrott Br. 5-6.  Nearly all editorials pointed out that the gerrymandered map would undermine the accountability Marylands congressional representatives the voters.  Appellants are not aware single media outlet serving any part Maryland which endorsed Yes vote Question addition, support for repealing the Districting Plan was bipartisan, with both Democratic and Republican elected officials urging voters vote repeal the redistricting plan the ballot box.2 August 18, 2012, the Secretary State prepared and certified the ballot language for Question  Newspapers noted that the language was misleading, writing that politicians are also hoping Marylanders will confused the cryptic ballot wording, which implies  falsely  that voting for the current indefensible district lines constitutional requirement.3 Following certification the language, Delegate Parrott requested the State change the language Question  E-13.  Delegate Parrott submitted alternative ballot language, including analysis comparing Question the ballot language for the 1962 redistricting.  E-34, E-50 51, E-62 63.  Unlike Question the 1962 ballot question language informed Maryland voters with specificity that their congressional district boundaries were being changed.  E-14, E-62, E-200.  However, the State refused change the Question language.  E-13 14.   
Appellants filed suit, asking the circuit court order declaratory and injunctive relief correct the ballot language.  E-9, E-15.  Appellants presented six voter affidavits the trial court attesting that the voters were confused about what the ballot question was asking because the misleading language.  E-55 56. The circuit court ruled favor Len Lazarick, Montgomery County Democrats organize opposition against congressional districts, Maryland Reporter, Oct. 15, 2012, available 
http://marylandreporter.com/2012/10/15/montgomery-county-democrats-organizeopposition-against-congressional-districts/. Annapolis Capital Gazette, Our Say: Vote against Question  and gerrymandering, Oct. 25, 2012, available www.capitalgazette.com/opinion/our_say/our-say-voteagainst-question-and-gerrymandering/article_488a0327-05d8-5513-bd94a40ba6e861c7.html. the State, and appeal the Court Special Appeals was filed. September 2012, petition for writ certiorari for review the circuit courts decision was also filed with this Court, but that petition was denied.  E-212. Thereafter, November 2012, majority Maryland voters voted yes Question written, upholding the gerrymandered Districting Plan, despite endorsements from virtually every newspaper the state for no vote Question July 23, 2014, the Court Special Appeals issued the opinion that now the subject this petition. 

REASONS FOR GRANTING THE PETITION 
The granting this petition desirable and the public interest, because presents question less important than whether lawful election has occurred.  Few issues are important safeguarding the peoples rights participate their representative democracy.  
Because the Question ballot language was vague and misleading, the November 2012 vote the question was nullity.   Had the voters voted no Question and repealed the Congressional Districting Plan, the lower courts failure correctly apply the Maryland Constitution and Election Code might have been harmless error. was not.  The evidence and the appellate record developed this case amply demonstrate gross violation the constitutional right Marylanders participate direct democracy. must remedied.  
Without redress this Court, the right Marylands citizens self-governance will doubly injured.  First, Marylanders constitutional right approve legislation via the referendum will have been denied.  This injury enough warrant review this Court, although this was not the only right self-governance abridged here.  The denial the right referendum this case also denied Marylanders their right fairly decide the question whether they wanted gerrymandered congressional districts that limit the accountability Marylands elected representatives. The voters were entitled have this question posed them clearly that they could accurately express their preferences.  Anything less would denial the peoples right referendum under the Maryland Constitution.  Md. Const. Art. XVI  5(b). The Illegal Ballot Language Rendered the Peoples Vote Question Nullity 
How initiatives ballot title worded can make break the initiative.4 This truism makes critically important that Marylands ballot language laws applied strictly.  Under Maryland law, the Question ballot language did not present the purpose [the] measure... intelligently, Md. Const. art. XVI,  5(b); did not present the question[] fair and nondiscriminatory manner, Md. Elec. Code 9-203(2); and failed communicate the purpose the question.  Md. Elec. Code 7-103(b)(4).  This Court should review this matter that the Question election results may overturned.  Md. Elec. Code  9-209(b)(3).   
Review here would similar McDonough, where this Court found that the ballot language deficiency meant voter could not have knowledgeably exercised his franchise and declared the referendum results a nullity and effect. Anne Arundel County McDonough, 277 Md. 271, 307 (1976).  Appellants have demonstrated that the Dane Waters, The Initiative and Referendum Almanac, (Carolina Academic Press 2003). 
ballot language did not permit average voter exercise intelligent choice meaningful way. conclusion can drawn about whether the outcome would have 
been different had the voters been asked vote the law subject referendum, 
because they were never asked.  Since the voters were not exercising intelligent 
choice, the outcome the election itself nullity, which literally means that the 
election never happened.  Id. 
The proper relief this case would for this Court nullify the results the referendum and require re-vote Question  this time with accurate description law which drastically reconfigured Marylands congressional districts. This Court could order such re-vote either special election 2015 the 2016 general election.  Marylanders right decide whether they want gerrymandered districts for the next five years remains critical.    
Ordering new election Question would not substantially prejudice any party this litigation.  This particularly true given the unique nature ballot questions, compared elections for political office.  Whereas ordering re-vote election for office prejudices the presumptively elected representative, party this case would prejudiced re-vote.  All parties should all want the same thing: accurate assessment the will the people, taken ballot without confusion controversy. Marylanders indeed favor the new gerrymandered districts, could not possibly harm anyone ask the people confirm their preference with language that accurately reflects the laws purpose and effect.  Indeed, since the Appellees this case are public officials committed serve the interests the citizens Maryland, they should welcome the opportunity remove all doubt both the legality and democratic legitimacy The Court Special Appeals Opinion Was Error 
The opinion the Court Special Appeals upholding the lower court judgment was error.  Question was misleading under Anne Arundel County McDonough, 277 Md. 271 (1976), Surratt Prince Georges County, 320 Md. 439 (1990), and Kelly Vote kNOw Coalition Maryland, Inc., 331 Md. 164, 177 (1993).  These cases hold that ballot language must apprise voters the full and complete nature proposed law, and also must fairly inform voters any changes made proposed law.  Parrott Br. 
10. For the purposes considering certiorari, brief summary the most significant errors follows. 
First, the Court Special Appeals fails apply the vagueness holding McDonough the States decision use the word establish instead reconfigure another synonym for change. Appellants explained, minimum this was ambiguous word choice, and therefore vague under McDonough. 277 Md. 307-308; see also Parrott Reply Brief the Court Special Appeals, filed September 13, 2013, (Parrott Reply Br.) 5-6.  Next, the Court Special Appeals tries distinguish McDonough arguing that Question did not need communicate the why the legislatures decision. Slip Op. (McDonough did not suggest that Question must explain voters why some officials and citizens groups supported downzoning and why others did not.). But Appellants argued below that the ballot language must inform voters the effect the referred legislation, which precisely what McDonough requires.  Parrott Br.  The Court Special Appeals does not explain how Question communicated the effect impact 1s passage voters. 
The Court Special Appeals also fails correctly apply Surratt. The ballot language Surratt told voters they were voting minor change, concealing the drastic change existing law the bill actually accomplished. voter who read the ballot language would have inkling that vote favor the charter amendment could vote favor repealing absolutely the waiver governmental immunity... [T]he verbiage here did not and could not convey voter understanding the full and complete nature what the charter amendment involved. point fact, told the voter nothing about what really was involved. 
Surratt, 320 Md. 448.  The Surratt court concluded the ballot language was calculated suggest the voter that the charter amendment would have virtually effect... Surratt, 320 Md. 449 (italics original). 
The Court Special Appeals fails apply Surratt when concludes that the phrase 
as required the U.S. Constitution did not mislead voters into thinking the 
gerrymandered congressional districts were constitutionally mandatory. Slip. Op.
10. Appellants demonstrated below great length, there credible explanation for the States choice this phrase other than mislead conceal.  See Parrott Br. 12-13, 16; see also Parrott Reply Br. 2-5, 8-12.  The Court Special Appeals evades Surratt only redefining the purpose stating that Question 5... did not misrepresent the ultimate purpose Senate Bill which was create congressional districts. Slip Op. 16.  Saying that the purpose was to create congressional districts, while technically truthful, lacks candor.  The purpose was substantially change and reconfigure the congressional district boundaries from Marylands prior districts into new, discretionary shapes. See Parrott Reply Br. 2-5,
13. Surratt, the Question ballot language unlawful because was calculated suggest the district boundary changes were minimal.  Surratt, 320 Md. 449. 
The Court Special Appeals also misapplies Kelly. Kelly held that ballot language sufficient informs voters the specific change the law makes, even the language could have been clearer. Kelly, the language accurately informed the voters the proposed change the law because stated that the referred measure creates certain exceptions the general requirement parental notification.  Kelly, 331 Md. 177.  
The Court Special Appeals incorrectly holds that Question adequately informed voters changes existing law.  Slip Op. 17.  But Kelly, the ballot language was lawful because specified that the referred law revises and repeals existing provisions, thereby directly informing the voters that the law had changed, and how.  Slip Op. 17; Kelly, 331 Md. 168-169, 177.  For the Court Special Appeals equate Question 5s use the word establishes similarly adequate informing voters how changed their congressional districts misapplication this precedent.  
Finally, the Court Special Appeals wrong discuss the notices mailed voters, which are irrelevant here.  Slip Op. 19-21. Surratt explained, the moment greatest impact when voter reads question the voting booth, and sufficient mailed language cannot make for defective ballot language.  Surratt, 320 Md. 450. Appellants even presented evidence the form six voter affidavits demonstrating that voters would not read the mailed information, and therefore would have been confused the ballot language. E-50. This consistent with what independent studies show  most voters generally not read the mailed information about ballot questions.5	 Illegal Ballot Language Deprives All Maryland Citizens Their Constitutional Right Referendum 
The need for review here magnified the fundamental right that stake. Control over governments the people, through measures including the referendum, one the founding principles American democracy and has been recognized Maryland courts right paramount importance.  Board Supervisors Elections Smallwood, 327 Md. 220, 237-238 (1992) (Limitations imposed the people their government are fundamental elements constitution.  The Maryland Declaration Rights and the Bill Rights the United States Constitution largely represent limitations governmental power... The Constitution the United States, the Constitution Maryland... are replete with provisions limiting the power governments...). that Article XVI the Maryland Constitution preserves for all Maryland citizens the right refer laws passed the legislature popular vote.  
Marylands Constitutional amendment recognizing the peoples right use the referendum was secured only after Maryland citizens demanded it. Ritchmount Partnership Board Supervisors Elections, 283 Md. 48, 60, (1978) (In response the public outcry over corruption state government and alleged abuses Thomas Cronin, Direct Democracy: The Politics Initiative, Referendum, and Recall, (Harvard University Press 1999) (A recent analysis California surveys finds evidence that the voter handbooks are not widely read... [N]o more than third voters report using the pamphlet source information[].  Thus, concludes, survey evidence indicates that most voters not read the pamphlet use source information for decisions propositions).  
legislative power, the General Assembly proposed and the people ratified Article XVI, reserving the right referendum petition with respect public general and local laws enacted the General Assembly.) (internal citations omitted).  This outcry came response the nationwide corruption the turn the 20th century: 
After the close the Civil War great abuses began creep into... the administration the National and State governments... They were alleged have grown out the control corrupt methods legislation and administration great corporations and group individuals each State who had taken into their hands the machinery each the great political parties... remedy these evils was proposed... modify the principle representation incorporating into the organic law the Referendum... 
Beall State, 131 Md. 669, 677-678 (1917); see also Board Education Frederick, 194 Md. 170, 176-177 (1949). their right referendum, all Marylanders have reserved themselves larger share legislative power their representative government.  Beall State, 131 Md. 669, 677-678 (1917) (The Referendum... the reservation the people State, local subdivision thereof, the right have submitted for their approval rejection, under certain prescribed conditions, any law part law passed the law making body.).  Without review and clarification the law here, the peoples right referendum may rendered useless for all but those capable making large television advertising purchases. This Court should accept review uphold Maryland citizens fundamental right approve reject legislation.	 The Gerrymandered Districts Harm Marylanders Right Fair Representation Congress 
The need for review further compounded the nature the particular referendum question this case.  The irony the States use confusing ballot language for referendum about gerrymandering should not lost this Court.  The misleading language prevented Marylanders from fully exercising their right informed vote question utmost importance: how responsive Marylands congressional representatives should the people they represent.  This fact militates strongly favor review. 
The question gerrymandering  when fairly asked  ultimately one how accountable elected officials should their constituents.  The primary effect gerrymandering diminish representatives accountability those who vote for them. means gerrymandering, elected officials acquire inordinate say deciding who will win the elections they themselves compete in.  Not surprisingly, elected representatives exercise this power ensure their own reelections, and ensure the reelection other members their party. this way, gerrymandering transfers electoral power from voters elected representatives, and therefore diminishes representatives need responsive their constituents concerns. 
Gerrymandering also limits voters ability gather information about candidates. Gerrymandered districts typically combine voters who reside widely dispersed areas and communities.  Indeed, common for voters heavily gerrymandered districts not know which electoral districts they are supposed vote who represents them.  When voters have harder time getting and sharing information about elected representatives, those representatives are less accountable. See Legislative Districting the State, 370 Md. 312, 368-369 (2002).  Non-compact, gerrymandered districts empower elected representatives the expense voters, separate communities prevent the exchange information about representatives, and confuse citizens, thereby insulating politicians from the will the people.6 light these considerations, this Court routinely accepts gerrymandering cases for review. See Legislative Redistricting Cases, 331 Md. 574 (1993); 2012 Legislative Districting the State, 436 Md. 121 (2013). contrast these effects gerrymandering, the purpose Marylanders right referendum increase the accountability legislative bodies their constituents.7 Since the Question ballot language was calculated conceal from voters the fact that the underlying bill effected dramatic changes Marylands previous congressional districts, the peoples right consider this change was effectively denied.  This denial ensured passage law that will allow Marylands elected representatives become more insulated from the interests the people.  The Court should now accept review make certain that there were flaws the legal grounds for this weakening the institutions democracy Maryland.  

CONCLUSION 
For the foregoing reasons, the Court should grant the instant Petition. Samuel Issacharoff, Gerrymandering and Political Cartels, 116 Harv. Rev. 593, 615 
(December 2002) (To the extent that elections are structured limit accountability, whether inordinately high filing fees gerrymandered districts, the key role [representative] accountability compromised.). Jack Benoit Gohn, Interaction and Interpretation the Budget and Referendum Amendments the Maryland Constitution  Bayne Secretary State, Md. Rev. 558, 572 (1980).  
Dated: August 22, 2014 Respectfully submitted, Chris Fedeli 
Paul Orfanedes  Bar 9112190026 Robert Popper  Bar RP-3722 Chris Fedeli  Bar 0012120179 
JUDICIAL WATCH, INC. 
425 Third Street, S.W., Ste. 800 Washington,  20024 Tel: (202) 646-5172 Fax: (202) 646-5199 Email: porfanedes@judicialwatch.org
 rpopper@judicialwatch.org  cfedeli@judicialwatch.org 
Attorneys for Petitioners 
Font: Times New Roman, point Specially admitted appear Parrott McDonough Court Special Appeals Order dated Oct. 2013, pursuant Md. Govg Admis. Bar 14(a) and Md. Rule 8402(b); Appearance continues before Court Appeals pursuant Md. Rule 8-402(a). 

CERTIFICATE SERVICE hereby certify that August, 22, 2014, caused true and correct copy the foregoing PETITION FOR WRIT CERTIORARI AND APPENDIX THE PETITION FOR WRIT CERTIORARI served, via email and first-class U.S. mail, postage prepaid, the following: 
Julia Bernhardt Assistant Attorney General OFFICE THE ATTORNEY GENERAL 200 St. Paul Place, 20th Floor Baltimore,  21202-2021 Chris Fedeli 
Chris Fedeli



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