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Judicial Watch • Reply brief: Parrott v. McDonough

Reply brief: Parrott v. McDonough

Reply brief: Parrott v. McDonough

Page 1: Reply brief: Parrott v. McDonough

Category:Legal Document

Number of Pages:19

Date Created:September 11, 2013

Date Uploaded to the Library:September 12, 2013

Tags:paul orfandes, chris fedeli, maryland appeals, Senate Bill 1, Governor Martin O’Malley, Question 5, maryland redistricting, parrott v mcdonough, MDPetitions.com, John McDonough, gerrymandering


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THE COURT SPECIAL APPEALS MARYLAND
September Term, 2012
__________________________
No. 01445
_________________________
NEIL PARROTT, al.
Plaintiffs-Appellants,
JOHN MCDONOUGH etc., al.,
Defendants-Appellees.
_________
REPLY BRIEF APPELLANTS
_________
Trial Court:
Neil Parrott, al. John McDonough, al.
Circuit Court for Anne Arundel County, Case No. 02-C-12-172298
The Honorable Ronald Silkworth
Paul Orfanedes
Chris Fedeli
JUDICIAL WATCH, INC.
425 Third Street, S.W., Ste. 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
cfedeli@judicialwatch.org
Attorneys for Appellants Neil Parrott and MDPetitions.com
Dated: September 13, 2013
TABLE CONTENTS
TABLE CONTENTS .....................................................................................................
TABLE AUTHORITIES ...............................................................................................
INTRODUCTION ...............................................................................................................
ARGUMENT....................................................................................................................... The State Unpersuasive Arguing That the Ballot Language Meaningfully
Informed Voters About the Districting Plan ...........................................................
II. The State Puts Forth Half-Truths Support Its Argument That the
Ballot Language Was Non-Misleading...............................................................
CONCLUSION .................................................................................................................
CERTIFICATE SERVICE ..........................................................................................
TABLE AUTHORITIES
Cases
Anne Arundel County McDonough, 277 Md. 271 (1976) .............................
Fletcher Lamone, 831 Supp. 887 (D. Md. 2011) ...................................................
Kelly Vote kNOw Coalition Maryland, Inc., 331 Md. 164 (1993) ....................
Surratt Prince George County, 320 Md. 439 (1990)........................................
Maryland Constitutional Provisions, Statutes, Rules, and Regulations
Md. Const., art. XVI, .................................................................................................
Md. Code Ann., Elec. Law 7-103 ...............................................................................
Other Authorities
Maptitude for Redistricting website Clients, available
http://www.caliper.com/MTRNews/clients.htm .............................................................
Maptitude for Redistricting website Features, available
http://www.caliper.com/RedistrictingFeatures.htm ........................................................
Maryland Department Planning, Redistricting Data Maps and Tables, Report
Maryland Precinct Population Data (the Green Report), viii, available
http://planning.maryland.gov/PDF/Redistricting/2010data/GreenReport_web.pdf .........
Maryland Department Planning, Redistricting Data Maps and Tables, 2010 Adjusted
Block Level Excel (Total Pop), available
http://planning.maryland.gov/PDF/Redistricting/2010Block/2010_Adjusted_BlockLevel_
Excel.zip ............................................................................................................................
Maryland Department Planning, Third Party Redistricting Plans, available
http://planning.maryland.gov/redistricting/2010/3rdpartyplans.shtml ............................
Maryland Department Planning, Third Party Redistricting Map Timothy Hruz,
September 19, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/map091911CDHruz.pdf ......................................................................................................................
Maryland Department Planning, Supporting Documentation for Timothy Hruz 
Redistricting Plan, September 19, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/doc091911CDHruz.pdf ......................................................................................................................
Maryland Department Planning, Third Party Redistricting Map Steve Shapiro
(corrected), September 21, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/doc092111CDShapiro-A-A1.pdf .......................................................................................................
Maryland Department Planning, Supporting Documentation for Steve Shapiro
Redistricting Plan (corrected), September 21, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/doc092111CDShapiro-A-A1.pdf .......................................................................................................
Maryland State Archives, Congressional Election Districts 2012-2020, available
http://msa.maryland.gov/msa/mdmanual/39fed/dist/html/2012.html ..............................
Merriam-Webster Dictionary, entry for establish, available http://www.merriamwebster.com/dictionary/establish ..................................................................................... 5-6
iii
INTRODUCTION
Appellants advanced two interrelated arguments demonstrating why Question
was misleading matter law. Neither argument was effectively rebutted
Appellees brief opposition. Appellants demonstrated their initial brief, Question was misleading under Anne Arundel County McDonough, 277 Md. 271 (1976) and
Surratt Prince George County, 320 Md. 439 (1990). Those two cases held that ballot
language must apprise voters the full and complete nature proposed law and
also must fairly apprise voters any changes made proposed law. Initial Brief
Appellants, March 19, 2013, Parrott Initial Br. the present case, these
holdings are two sides the same coin requiring that ballot language not misleading.
Question misled voters about the Congressional Districting Plan
 Districting Plan and therefore was illegal. The language the question was
misleading because failed apprise voters the full and complete nature the
Districting Plan and the changes that the plan made the existing district boundaries.
This illegality can remedied new vote ballot question that succinctly apprises
voters the fact that changes district boundaries and describes the extent those
changes. Appellees disagree and instead claim that the vague and generic words used Question were sufficient inform voters that changes existing district
boundaries dramatically. Appellees even argue that the use the phrase establishes the
boundaries was sufficient inform voters that the new district boundaries are vastly
different from the old ones. Upholding such language would enshrine into law the
State ability mislead voters about ballot questions future referenda.
Question also failed inform voters about the purpose the purpose
the referendum. its brief, the State suggests that the purpose was achieve
population equality among congressional districts and that Question accurately
reflected that purpose. Brief Appellees, July 16, 2013, 2-3, fn. State
Br. However, the full and complete nature the Districting Plan was dramatic
reconfiguration existing district boundaries far beyond anything that was necessary
achieve population equality.1 Parrott Initial Br. 1-2, 14-15, 16-17. This why over
55,000 Maryland citizens signed petition submit referendum.
minimum, had more than one purpose, and any ballot description the Districting
Plan full and complete nature must reflect the extent the changes makes
existing district boundaries order not misleading. McDonough, 277 Md. 296. ballot question that only apprises voters the partial nature proposed law 
instead advising voters its full and complete nature illegal. Question did not
inform voters the purpose the purpose the referendum itself. result, was violation Maryland law.
Fletcher Lamone, 831 Supp. 887, 903-904 (D. Md. 2011); Fletcher, 831
Supp. 905-906 (Titus, J., concurring) [I]t not well-kept secret that the plan for the
sixth congressional district was developed for the purpose disadvantaging
incumbent Republican legislator
ARGUMENT
The State Unpersuasive Arguing That the Ballot Language
Meaningfully Informed Voters About the Districting Plan
The State makes several, closely related arguments try demonstrate that its
ballot language was not misleading. All them are unconvincing. First, the State
attempts distinguish McDonough and Surratt are unpersuasive. its brief, the State
discusses the fact that the ballot language McDonough was found misleading
because asked voters vote for against the rezoning when the real question
before the voters was not the rezoning itself, but separate amendments rezoning
plan State Br. 11. This quotation does not help the State argument, however,
and the State description McDonough demonstrates why the lower court decision
here must reversed. Question essentially asked voters vote for against
redistricting general, not any particular redistricting plan. The real question before
the voters, however, was the drastic changes existing district boundaries and the noncompact, gerrymandered nature the new districts under The ballot language
misleadingly suggested voters that they were being asked vote for against the
process establishing districts based census data and required the Constitution,
not drastically reconfigured map practically non-contiguous districts.
The State description Surratt proves Appellants case. The State correctly
points out that the Court Appeals held there was substantial difference between what
the ballot language described Surratt and the real purpose the law subject
referendum. State Br. 11. The Surratt court found that the ballot language provided
factually accurate description charter amendment issue that case, but that the
language was still misleading because failed give voters inkling the impact the amendment. Surratt, 320 Md. 448. Similarly, while Question may have been
factually accurate informing voters that redistricting was constitutionally required,
failed give voters any idea that they were being asked approve radically
gerrymandered map. The Surratt court opinion might well have been written about
this case:
[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.
Id. (internal citations and punctuation omitted). Replace charter amendment with new
congressional districts the above sentence and the court description applies perfectly Question Similarly, just Surratt, the difference between what Question says
and what Districting Plan actually does existing district boundaries significant. Id. spider web districts will greatly reduce the accountability Maryland
congressional representatives Maryland voters, Appellants have already shown.
Parrott Initial Br. 18-19, esp. fns. 16-18.
The State also tries argue that Question was factually accurate. The State
asserts the language identified truthfully that the referred law established boundaries for
Maryland eight congressional districts and that all elements [the language] are
undeniably accurate State Br. 12. The State argument ignores the fact that
language can misleading omission even true its face. Surratt, 320 Md.
448. Question was misleading because omitted any reference the new district
boundaries the drastic changes made the old ones. Parrot Initial Br. 14.
The State reliance Kelly similarly misplaced, and the details that case
further undermine its argument. State Br. 11-12. stated Kelly, ballot language
sufficient accurately inform[s] the voters the proposed change the law. Kelly Vote kNOw Coalition Maryland, Inc., 331 Md. 164, 177 (1993). issue Kelly
was what amounted concerns about poor sentence and paragraph construction
ballot question. Kelly, 331 Md. 169. But the Kelly ballot language fairly
communicated voters both the purpose and effect the measure, specifically
informing voters that Maryland law would changed allow more minors have
abortions without notifying their parents. Id. Question did not communicate anything
nearly meaningful about the effect the Surratt court noted, ballot language misleading fails inform voters the real change the referred law. Surratt,
320 Md. 448.
The State also wrong that Question informed voters the changes that
made existing district boundaries. The State argues that the words establishes
districts adequately informed voters that changes existing district boundaries and
that ordinary voter would understand this was the case. State Br. 13. The State
argument unconvincing. The word Establish has several possible definitions
according the Merriam Webster dictionary, and not one these different definitions
includes causing changes possible meaning use the word. Rather, the word
overwhelmingly used convey meaning precisely the opposite change the
formalization codification something that already exists. Some the definitions
 establish include: institute (as law) permanently, make firm stable,
put firm basis, put into favorable position, gain full recognition
acceptance of, put beyond doubt. contrast, each Appellants proposed
language options and the 1962 Maryland redistricting ballot language used the phrase
 made changes making certain changes. Joint Record Extract E-__ E-62
E-63. Even the legislative title for uses the phrase reconfiguration
congressional districts, which, used for the ballot question, would have
unambiguously informed voters that changes were being made existing district
boundaries. See E-62; see also E-24 E-25, E-28, E-50 (Tr. 5:24-6:4, 9:20-21, 31:2-5);
see also Parrott Initial Br. 23, fn. 19. any event, the State failed provide any
explanation for why used the word Establish, but did not use the word change. The
State also fails explain why this omission not misleading. defense possible.
Next, the State weakly argues that simply could not have described the new,
gerrymandered district boundaries without violating Maryland law, and, therefore, was
not required so:
Given the limitations word count, any attempt summarize the content
would necessarily have been highly selective, and thus potentially unfair,
Merriam-Webster Dictionary, entry for establish, available http://www.merriamwebster.com/dictionary/establish (visited Sept. 2013).
subjecting the language attack for having left out important content
improperly emphasized certain content.
State Br. 14. History shows that this statement demonstrably untrue. 1962, voters
were presented with ballot question regarding proposed changes the boundaries
Maryland congressional districts. Appellants have already shown, the Secretary
State described the reconfigured boundaries issue that referendum concisely and
within the space limitations required the law. Parrott Initial Br. the case
bar, the State did not even attempt describe the district boundaries which the voters
were asked vote. Appellants provided four examples sample ballot language that
provided complete description the nature the and the changes that made
district boundaries without being unfair. Id.; see also E-62 E-63. The State does not
elaborate what might have been unfair about any the descriptions Appellants
offered, and Appellants can imagine such explanation. What was unfair was not
informing the voters about the real question which they were voting. State Br.
11.
II.
The State Puts Forth Half-Truths Support Its Argument That the
Ballot Language Was Non-Misleading
Despite the State claim, Question did not fairly summarize the intent and the
meaning State Br. citing Kelly, 331 Md. 174-175. While the State
argues that Question truthfully described the purpose does claiming
that the purpose was achieve one person, one vote proportionality
congressional districts. Appellants not dispute that one aim any redistricting
legislation comply with constitutionally-required proportional representation.
However, the argument that compliance with one person, one vote mandate fully and
completely described the purpose gerrymandered map false one and cannot
support upholding Question McDonough, 277 Md. 296. Moreover, beyond
dispute that the purpose the referendum was challenge the gerrymandered map, not
 one person, one vote proportionality. Accordingly, Question failed inform voters both the full purpose and the purpose the referendum itself. result,
violated Maryland law. Md. Const. art. XVI, (b); Md. Election Law Code Ann. 7103(b)(4).
The only way that the words Question could not have been misleading
the changes and effects the boundaries Maryland congressional districts
were trivial the State portrays. The State seems suggest that the full and complete
nature was achieve proportional representation. State Br. 2-3, fn.
Under this view, only purpose was ensure that congressional districts had equal
populations: seven districts containing 721,529 people each and one district containing
721,528 people. State Br. The State appears suggest that the best only way
achieve population equality among Maryland congressional districts was draw map
that looks like this:
E-166.
The State
orrectly poin out that Appellants view this
nts
map
olitical
gerryma
ander. State Br. 10. This view also 
hared jus about eve major
ery
newspap Mary
per
yland and the U.S. District Cou for the
urt
District
Maryland.
Parrot
nitial Br. 3-7. Perha wisely, the State
aps
ever disavow this view itself, nor
does argue that Appellants view inac
ccurate. refusing rebut this claim, the
State app
pears con
ncede that one the purposes was
political ger
rrymanderin
ng.
The othe purpose was com
mply with the requireme that con
ent
ngressional districts
equal population indeed had two interrelated purposes, the Maryla Constit
and
tution requir
res
that both capture the
allot langua
age. See Const. XVI, (b) [T]he
rt.
Secretar State shall prepare and subm ballot
mit
title each such meas
sure such
form present the purpose said measure concisely and intelligently. (italics
added). The State appears believe may pick and choose among the purposes bill
and submit only the least offensive purpose voters. This view does not comport with
Maryland law.
The fact that accomplished dramatic act political gerrymandering while
still technically complying with the U.S. Constitution was legislative necessity. Laws
enacted the Maryland general assembly must comply with the U.S. Constitution.
Informing voters this fact does not inform them the true nature and intent and
meaning law, especially where law has another purpose well. McDonough, 277
Md. 296; Kelly, 331 Md. 174.
Furthermore, while may have achieved population equality, there were
several ways achieve this equality without drawing districts into the amoebic shapes
shown the map reproduced above. the State points out, was only one
several possible maps considered the Redistricting Advisory Committee. State Br. its brief, the State never explains why one these more reasonable and compact
district maps was not used achieve proportional one person, one vote congressional
districts.3
For example, the redistricting proposal submitted Timothy Hruz would have
produced eight reasonable, compact, non-gerrymandered districts with population
Maryland Department Planning, Third Party Redistricting Plans, available
http://planning.maryland.gov/redistricting/2010/3rdpartyplans.shtml (visited Sept.
2013).
variances more than 118 people between districts.4 Similarly, Steve Shapiro plan
would have resulted compact, geographically practical districts with population
differences greater than 417 people between districts.5 Importantly, the State never
claims that one these other reasonable, more compact maps could not have been
adjusted using precise software achieve districts with the same degree population
equality but without grotesquely-shaped district boundaries 1.6 Indeed,
appears that any third party map with compact, non-gerrymandered district boundaries
could have been fine-tuned reallocating census blocks along the boundaries until all
Maryland Department Planning, Third Party Redistricting Map Timothy Hruz,
September 19, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/map091911CDHruz.pdf (visited Sept. 2013); Supporting Documentation for Timothy Hruz 
Redistricting Plan, September 19, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/doc091911CDHruz.pdf (visited Sept. 2013).
Maryland Department Planning, Third Party Redistricting Map Steve Shapiro
(corrected), September 21, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/map092111CDShapiro-A.pdf (visited Sept. 2013); Supporting Documentation for Steve Shapiro
Redistricting Plan (corrected), September 21, 2011, available
http://planning.maryland.gov/PDF/Redistricting/3rdPartyPlan2010/doc092111CDShapiro-A-A1.pdf (visited Sept. 2013).
See Maryland Department Planning, Redistricting Data Maps and Tables, Report
Maryland Precinct Population Data (the Green Report), viii, available
http://planning.maryland.gov/PDF/Redistricting/2010data/GreenReport_web.pdf (visited
Sept. 2013) [T]he Maryland Department Planning used Census Bureau
MAF/TIGER Partnership software delineate and verify the boundaries voting
districts/precincts census maps [T]he precincts had follow census tabulation
block boundaries (census tabulation blocks are the smallest geographic areas for which
the Census Bureau reports population data).
districts had equal populations.7 Such adjustments are accomplished using commercial
software such Maptitude for Redistricting,8 and the website for Maptitude identifies
Maryland customer.9 Indeed, only achieved population equality splitting
dozens Maryland census precincts this fashion.10 the extent that Question
suggests that the purpose was achieve population equality, the question was
misleading.
Consider, for instance, that the 2010 census identifies 145,248 census blocks
Maryland, 9,840 which have populations between and people, and another
20,298 which have populations between and persons. additional 64,304
Maryland census blocks have population consisting only empty land which can moved from district district establish contiguity between census blocks that
have populations. See Maryland Department Planning, Redistricting Data Maps and
Tables, 2010 Adjusted Block Level Excel (Total Pop), available
http://planning.maryland.gov/PDF/Redistricting/2010Block/2010_Adjusted_BlockLevel_
Excel.zip (visited Sept. 2013).
Maptitude for Redistricting website Features Add areas target district using
feature selection tools. Select features any geographic layer, such Census block,
voting district, county, town. Limit the selection unassigned areas, one district,
the entire jurisdiction. you add areas district, Maptitude for Redistricting redraws
the district boundaries and updates the control and summary fields reflect the changes the current plan. available http://www.caliper.com/RedistrictingFeatures.htm
(visited Sept. 2013).
Maptitude for Redistricting website Clients, available
http://www.caliper.com/MTRNews/clients.htm (visited Sept. 2013). The website also
quotes Karl Aro, Director the Maryland Department Legislative Services, saying the Maptitutde software: light years ahead. The software can much more, much more quickly. See Maptitude for Redistricting website Features, available
http://www.caliper.com/RedistrictingFeatures.htm (visited Sept. 2013).
See Maryland State Archives, Congressional Election Districts 2012-2020, available
http://msa.maryland.gov/msa/mdmanual/39fed/dist/html/2012.html (visited Sept.
2013). light the foregoing, obvious that the State failed its obligation
describe the true nature and also its obligation describe the purpose the
question being submitted the voters. See Md. Election Law Code Ann. 7-103(b)(4)
(questions the ballot must contain condensed statement the purpose the
question. (italics added). Whatever purpose the State claims for there
dispute that Appellants did not collect over 55,000 signatures submit referendum the
question whether Maryland should strive for one person, one vote proportionality
its congressional districts. Rather, Appellants and the 55,000 signers the petition
sought submit the voters the question whether the gerrymandered districts drawn should become law whether the State should required re-draw its
congressional districts. See Parrot Initial Br. 15, citing E-118, Maryland Department Legislative Services Summary Question Voters had inkling that this was the
purpose the question.
CONCLUSION
For all the foregoing reasons, the decision the Circuit Court should reversed
and the case remanded.
Dated: September 13, 2013
Respectfully Submitted, Paul Orfanedes
Paul Orfanedes
Md. Bar No. 9112190026 Chris Fedeli
Chris Fedeli
Md. Bar No. 0012120179
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
Tel: (202) 646-5172
Fax: (202) 646-5199
Email: porfanedes@judicialwatch.org
cfedeli@judicialwatch.org
Attorneys for Appellants
Pursuant Maryland Rule 8-112, 8-503 and 8-504, this brief has been prepared 13point, proportionally spaced Times New Roman font with 2.0 spacing between lines.
CERTIFICATE SERVICE hereby certify that this 13th day September, 2013, caused true and
correct copy the foregoing REPLY BRIEF APPELLANTS served, via email
and first class mail, the following:
Douglas Gansler
Julia Doyle Bernhardt
OFFICE THE ATTORNEY GENERAL
200 St. Paul Place, 20th Floor
Baltimore, 21202-2021 Chris Fedeli
Chris Fedeli



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