IN THE COURT OF APPEALS OF MARYLAND
NEIL C. PARROTT, et al.,
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Petitioners,
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v.
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JOHN McDONOUGH, et al.,
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Petition Docket No. 382
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Respondents.
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September Term, 2014
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ANSWER TO PETITION FOR WRIT OF CERTIORARI
The petitioners mount a last-ditch effort to jettison the State law apportioning
Maryland's congressional districts, after a majority of voters approved the law in the
November 2012 election. Though the petitioners had an ample opportunity to campaign
against the law they petitioned to referendum, they now seek to render "null and void"
the choice of the people of Maryland to approve the referred law. Petition at 3. They ask
this Court to grant review and ultimately order a "re-vote" on the issue, id., based on their
belief that the voters would make a different choice in 2016 (the third election cycle in
which the current districting plan will have been used) if the petitioners were allowed to
craft ballot language to comport with their preferred characterization of the law that the
voters approved in 2012.
The Court of Special Appeals rightly rejected the petitioners' claims, relying on
well-established legal principles governing referendum ballot language that this Court's
precedents have established. Review of the unreported decision of the Court of Special
Appeals, which faithfully applied this Court's teachings, is neither desirable nor in the
public interest, because the petitioners have identified no novel issue of law or confusion
regarding the applicable standards.
QUESTION PRESENTED
Did the courts below correctly determine that the ballot language certified by the
Secretary of State in accordance with Article XVI, § 5(b) of the Maryland Constitution
"concisely and intelligently" describes the purpose of the referred law?
STATEMENT OF THE CASE
The federal constitution requires a state's congressional districts to be
reapportioned following each decennial census, and the resulting apportionment must
U.S. Const. art. I, § 2; see Wesberry v.
satisfy "one-person, one vote" principles.
Sanders, 376 U.S. 1, 7-8 (1964). Because of population shifts in Maryland since the
2000 census, the congressional districts established in 2002, based on 2000 census data,
see 2002 Laws of Maryland, ch. 340, no longer satisfied the one-person, one-vote
requirement. As a result, the State was required to adopt new congressional boundaries
that achieve population equality among the State's eight congressional districts. The
General Assembly complied with constitutional mandates by enacting legislation, based
on 2010 census data, in its October 2011 special session. 2011 Laws of Maryland Spec.
Sess. ch. 1. The legislation passed by three-fifths votes in both houses, and thus became
effective as "emergency legislation" under Article XVI, § 2 of the Constitution, upon the
Governor's signature on October 20, 2011.
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Petitioner Neil Parrott voted against the measure as a member of the House of
Delegates, and he pursued his opposition to the legislation after it had become law by
sponsoring a successful referendum petition, together with petitioner MDPetitions.com.
In accordance with constitutional requirements, Secretary of State John McDonough
prepared and certified ballot language for the referendum. Question 5 asked voters to
vote for or against a Congressional Districting Plan that "Establishes the Boundaries for
the State's eight United States Congressional Districts based on recent census figures, as
required by the United States Constitution."
The petitioners challenged the adequacy of the ballot language in the Circuit Court
for Anne Arundel County. After the circuit court rejected the petitioners' contentions and
determined that the Secretary of State had adequately described the referred law, the
petitioners sought review in this Court before decision in the intermediate appellate court.
This Court denied review on September 7, 2012. See 428 Md. 543.
On November 6, 2012, the congressional districting plan was approved by a
majority of voters. In its unreported opinion, the Court of Special Appeals affirmed the
circuit court's judgment. The intermediate appellate court's analysis adheres to this
Court's teachings in (1) concluding that the Secretary of State complied with his
constitutional directive to prepare ballot language that "concisely and intelligently"
conveyed the purpose of the referred law and (2) rejecting the petitioners' contention that
the ballot language was faulty because it failed to convey their political reasons for
opposing the referred law.
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REASONS FOR DENYING REVIEW
The petitioners take issue with the Secretary of State's exercise of his
constitutional duty to "prepare and submit a ballot title of each such measure in such
form as to present the purpose of said measure concisely and intelligently." Md. Const.
art XVI, § 5(b). This Court has interpreted the constitutional provision as requiring only
that the ballot language fairly indicate the subject of the referred act. Contrary to the
petitioners' claim, judicial review of the ballot language is not "concerned with the
question of whether [the court] or any of the numerous advocates on either side of this
issue are capable of drafting better ballot language." Kelly v. Vote kNOw Coalition, 331
Md. at 17 4. Instead, review of the Secretary of State's exercise of his constitutional duty
"is limited to discerning whether the language certified 'convey[s] with reasonable clarity
the actual scope and effect of the measure."' Stop Slots MD 2008 v. State Bd. of
Elections, 424 Md. 163, 204 (2012) (citations omitted); see also Kelly, 331 Md. at 173
(requiring '"understandable language'" that summarizes the "'actual scope and effect of
the measure"' with "'reasonable clarity."' (quoting Surratt v. Prince George's County,
320 Md. 439, 447 (1990))).
The Secretary of State's certified text accomplished this goal, by accurately stating
the purpose of the Congressional Districting Plan, which is to "[e]stablish[] the
boundaries for the State's eight United States Congressional Districts" consistent with
constitutional requirements. The language therefore "accurately and in a non-misleading
manner, apprises the voters of the true nature of the legislation upon which they are
voting." Stop Slots, 424 Md. at 189-192 (citations omitted).
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The Court of Special Appeals rightly rejected the petitioners' complaint that the
ballot language was "vague" and "misleading." According to the petitioners, the ballot
language did not adequately inform voters that the congressional districting plan created
new boundaries that were distinct from the now-unconstitutional boundaries drawn from
the 2000 census data. The Court of Special Appeals correctly rejected this contention
and explained that the words "establish" and "recent census figures" "conveyed to voters
the idea that [the congressional districting plan] did something new with regard to the
boundaries . . . [and] that the new boundaries were different from the existing
boundaries."
Slip opinion at 8.
The ballot language thus gave an "accurate
understanding of the law's purpose," which was to establish eight congressional districts
based on the 2010 census data in accordance with constitutional requirements that the
resulting apportionment satisfy "one-person, one vote" principles, U.S. Const. art. I, § 2;
see Wesberry, 376 U.S. at 7-8.
Applying this Court's precedent, the Court of Special Appeals correctly concluded
that the ballot language accurately described the effect of the law and rejected the
petitioners' view that the ballot language should attempt to convey "the political
motivations or policy considerations behind the adoption of the referred law."
opinion at 14-15.
Slip
There simply is no practical way to convey "concisely and
intelligently" the reasons for drawing each line in a districting plan that spanned more
than 40 pages. See Dutton v. Tawes, 225 Md. 484, 499 (1961) ("[W]hile a title must
fairly indicate the subject of the legislation, it need not give an abstract of the act or
specify the means by which the purposes are to be accomplished, as long as it is not
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misleading.").
The Court of Special Appeals concluded that the Secretary of State
fulfilled his constitutional and statutory duties by drafting ballot language that "did not
obfuscate the purpose and nature of the [referred law], but instead adequately conveyed
the actual scope and effect of the [districting] plan." Slip opinion at 21. The court thus
appreciated that the issue had properly been committed to the electoral process, where
opponents of the law had an opportunity to make a political case against the referred law,
and that the voters nevertheless decided to approve the law.
The court's analysis
faithfully applies standards that are fully explicated in this Court's precedents, and there
is thus no basis for entertaining the petitioners' plea for a do-over.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted,
DOUGLAS F. GANSLER
Attorney General of Maryland
Assistant Attorney General
200 Saint Paul Place, 20th Floor
Baltimore, Maryland 21202
(410) 576-7005
(41 0) 576-6955 (fax)
jkatz@oag.state.md.us
Attorneys for Respondents
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CERTIFICATE OF SERVICE
I certify that, on this 9th day of September 2014, a copy of the foregoing answer to
the petition for a writ of certiorari was sent by e-mail to, and served by mail on:
Paul J. Orfanedes, Esq.
Christopher Fedeli, Esq.
Judicial Watch, Inc.
425 Third Street, S. W., Suite 800
Washington, D.C. 20024
porfanedes@judicialwatch.org
cfedeli@judicialwatch.org
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