By Megan Poinski, Megan@MarylandReporter.com
(August 02, 2011)—Questioning the validity of the petitions and the legality of a referendum to overturn the Maryland granting in-state tuition to illegal immigrants, Casa de Maryland and eight Marylanders have sued the State Board of Elections, asking the court to cancel the planned referendum on the law and allow its provisions to take effect now.
The lawsuit was filed Monday in Annapolis. Casa and the eight named plaintiffs are being represented by attorneys from two Washington firms, Sandler, Reiff, Young & Lamb and Arnold & Porter, who took the case on for free.
Joseph Sandler, lead attorney on the case, said that the State Board of Elections should not have certified many of the 108,923 petition signatures it received – nearly twice the 55,736 required to put the issue on the November 2012 ballot.
“Although they turned in a lot of signatures, our review showed that they didn’t turn in enough that were legally valid,” Sandler said.
He also said that the bill should legally be classified as an appropriations bill, meaning that state law prohibits it from going to the voters for a referendum.
Leaders of the petition drive said that the lawsuit appears frivolous and looks like a desperate measure. However, they are not directly involved in this legal dispute.
“All this does is a stupid tactic that inflames and angers voters,” said Del. Pat McDonough, honorary chairman of MDPetitions.com, the organization that collected signatures and submitted the petition.
Who’s involved?
Casa and other advocates for the state version of the DREAM Act have been vocally supporting the law and questioning the actions of petitioners working toward a referendum. In June, they got access to the petitions that had been submitted to the State Board of Elections.
However, the named plaintiffs are not people who have necessarily been at the front of the in-state tuition debate. Sandler said they have been active in the fight for the DREAM Act and volunteered to put themselves out for the cause. They include:
-- Two illegal immigrants who have recently graduated from public high schools and hope to attend community colleges with in-state tuition. One student, referred to as “John Doe,” was valedictorian of his class this year at a Baltimore City high school, and he hopes to study to be a doctor. The other, referred to as “Jane Doe,” graduated from Baltimore City College high school in 2009 and hopes to study to be a nurse.
-- Dr. Jesus Martinez, an eye surgeon from Garrett Park. He entered the U.S. as an illegal immigrant, but has since become a naturalized citizen and was honorably discharged from the U.S. Navy.
-- Abby Hendrix, a middle school science teacher from Columbia. Almost half the students at the public school where she teaches are immigrants.
-- Katherine Ross-Keller, an occupational therapist in a public school infant and toddler program from Frederick.
-- Kim Samele, a public school French teacher from Towson.
-- Camden Lee, a current undergraduate studying American Studies and Asian-American Studies at the University of Maryland, College Park from Silver Spring.
-- Catherine Brennan, a mother and child of Irish immigrants from Baltimore.
Casa de Maryland is the only organization that is a plaintiff. The American Civil Liberties Union questioned the petition process, but is not named in the lawsuit. Charly Carter, an advocate for Progressive Maryland, said that the ACLU is one of many organizations – including her own – involved in a coalition supporting the DREAM Act. Other organizations in the coalition include the Presbytery of Baltimore, the Episcopal Diocese, the Maryland Catholic Conference, and the Service Employees International Union.
The suit is filed not only against the State Board of Elections, but against State Administrator of Elections Linda Lamone and Secretary of State John McDonough (no relation to the delegate), who officially refers petitions to become ballot issues.
Sandler has a long career of working as counsel to Democrats. He was counsel to the Democratic National Committee, the Democratic Governors Association, and at several Democratic National Conventions.
The leaders of the petition drive are not a party to the lawsuit. Del. McDonough said that if MDPetitions.com is able, it will provide information and help to the Board of Elections as the litigation continues.
Appropriations?
The lawsuit argues that immigrant tuition bill is truly an appropriations bill, and therefore cannot be brought to referendum. According to the bill’s fiscal note, Sandler said, the bill requires the increase of funding to the state’s community colleges through the Cade formula.
Sandler admitted that the legal precedent for this argument is “murky.” Similar arguments had been made when the Arundel Mills slots casino was coming to the ballot. Conflicting rulings were made by the state’s courts, but the Maryland Court of Appeals never issued a written ruling on the issue, Sandler said.
Del. McDonough argued that the bill could not be considered an appropriations bill based on the nature by which it went through the General Assembly, bypassing financial committees in both houses.
Petitions
The lawsuit argued that the website at MDPetitions.com violated state law because it had an automated function to fill out much of the required petition information. The website was used to get 43,811 of the certified petitions – 40% of the total – and the lawsuit argues they should all be thrown out.
People visiting the website entered their first and last names, e-mail addresses, phone numbers, birthdates and zip codes, and were able to download petition forms with most of the required information to submit a valid signature. To add a signature to the petition, people at the site were required to physically sign the forms, have someone witness it as a “circulator,” and send them to the Board of Elections.
Sandler said that the law requires people signing a petition to fill out that information themselves, and a website that fetches it for them is in violation. But, more importantly, he said that the site had no protection against fraud.
“If I find your birthday on Facebook, I can get a petition form for you. And I can print it out and sign it,” Sandler said.
The Board of Election did not work to match signatures on petitions with those on file for registered voters, meaning that there was nothing in place to ensure that signatures obtained actually came from the people named on the petitions.
Other issues discovered on petitions include:
-- 6,437 signatures that were different than the names used when voters registered with the Board of Elections.
-- 3,840 signatures on pages that did not have the text of the law printed on the other side, as required by law and approved by the Board of Elections.
-- 2,117 signatures that appear forged.
-- 896 signatures on petitions that had been signed beforehand by a circulator.
-- 473 petitions missing voter signatures.
-- 104 signatures on petitions that do not have a circulator’s signature to verify them.
According to the lawsuit, more than 57,000 of the signatures certified by the Board of Elections should actually be considered invalid.
MDPetitions.com reaction
“What they don’t like is that 132,000 ordinary citizens – half of them who are not Republicans – in good faith and with good will signed this petition,” Del. McDonough said.
The online petition process, which the lawsuit objects to the most, is “all above board,” he said. Everything was designed with the State Board of Elections’ guidance and approval, he said. Similar systems are used throughout the state for all elections, and nobody sees a problem with them.
“This wasn’t rocket science,” Del. McDonough said. “It is not really complicated.”
The lawsuit should instead make Marylanders angry that an organization like Casa de Maryland that receives funds in grants from state, county and federal governments has dedicated their time and money to trying to help illegal immigrants break the law, he said.
“The public has already been educated,” said Del. McDonough. “They know the difference between legal and illegal.”