In the Court of Appeals

of Maryland

September Term, 2008

No. 61

JANE DOE et al.,

Appellants/Cross-Appellees,

v.

MONTGOMERY COUNTY BOARD OF ELECTIONS

Appellee/Cross-Appellant.

Appeal from the Circuit Court for Montgomery County

(Hon. Robert A. Greenberg, Judge)

REPLY BRIEF OF
APPELLANTS/CROSS-APPELLEES

Jonathan S. Shurberg, 14365 Susan L. Sommer*

JONATHAN S. SHURBERG, P.C. Natalie M. Chin*
1317 Apple Avenue LAMBDA LEGAL DEFENSE
Silver Spring, Maryland 20910 AND EDUCATION FUND, INC.
(301) 585-0707 120 Wall Street, Suite 1500
New York, NY 10005
Joseph S. Kakesh** (212) 809-8585
ARNOLD & PORTER, LLP
555 12th Street, N.W. * Admitted Pro Hac Vice pursuant to
Washington, DC 20004 Order of Circuit Court
(202) 942-5000

Attorneys for Appellants/Cross-Appellees

Attorneys Appellate Printers, Inc. (800) 827-5766

Joseph S. Kakesh**
ARNOLD & PORTER, LLP
555 12th Street, N.W.
Washington, DC 20004
(202) 942-5000

** Counsel for Jane Doe, John Doe,

Anne Marie Ellestad, Letitia B. Hall,
Elbridge G. James, Sheryl L. Katzman,
Gerald Serotta, Maria Del Pilar Torres,
Patricia Walker, and Bruce R. Williams
 TABLE OF CONTENTS

ARGUMENT....................................................................................................................... 1
I. The Circuit Court Erred In Ruling That Elec. Code 6-203(a)(1) Has
No Force And Effect ................................................................................................ 1
II. The Circuit Court Correctly Ruled That The BOE Erred In Excluding
Inactive Voters From Its Calculation Of Required Petition Signatures
And That The Petition Thus Failed To Carry Signatures Of 5% Of
Registered County Voters ........................................................................................ 7
III. The Circuit Court Erred In Holding That The Statute Of Limitations
Bars Part Of Appellants Action ............................................................................ 10
A. The Statute of Limitations Does Not Apply to Appellants Action............ 10
B. Even Assuming the Statute of Limitations Applies,
Appellants Claims Were Timely Filed ...................................................... 14
1. No Publicly Available Records Revealed The BOEs
Erroneous Exclusion Of Inactive Voters.......................................... 14
2. The BOE Did Not Make A Determination Pursuant
To 6-209(a) On November 30, 2007, December 3,
2007, Or February 20, 2008 ............................................................. 16
3. The Amended Complaint Relates Back To The Original
Date Of Filing Of The Complaint On March 14, 2008.................... 18
CONCLUSION ................................................................................................................. 18
CERTIFICATE OF SERVICE.......................................................................................... 20

i
 TABLE OF CITATIONS
CASES
Barnes v. State ex rel. Pinkney,
236 Md. 564, 204 A.2d 787 (1964) ..................................................................3-5 & n.4
Bienkowski v. Brooks,
386 Md. 516, 873 A.2d 1122 (2005) ............................................................................. 2
City of Takoma Park v. Citizens for Decent Government,
301 Md. 439, 483 A.2d 348 (1984) ................................................................3, 5, 12-13
Davis v. Slater,
383 Md. 599, 861 A.2d 78 (2004) ............................................................................... 14
Gisriel v. Ocean City Board of Supervisors of Elections,
345 Md. 477, 693 A.2d 757 (1997) ............................................................................... 7
Halliday v. Sturm, Ruger & Co., Inc.,
138 Md. App. 136, 770 A.2d 1072, (2001), affd,
386 Md. 186, 792 A.2d 1145 (2002) ..................................................................... 10 n.5
Lemons v. Bradbury,
No. 08-35209, 2008 WL 3522418 (9th Cir. Aug. 14, 2008) ......................................... 5
Liddy v. Lamone,
398 Md. 233, 919 A.2d 1276 (2007) ........................................................................... 12
Maryland Green Party v. Maryland Board of Elections,
377 Md. 127, 832 A.2d 214 (2003) ............................................................................7-9
Mayor and Town Council of Oakland v. Mayor and Town Council of
Mountain Lake Park,
392 Md. 301, 896 A.2d 1036 (2006) ............................................................................. 2
Moats v. City of Hagerstown,
324 Md. 519, 597 A.2d 972, (1991) ...................................................................... 18 n.7
Parker v. Board of Election Supervisors,
230 Md. 126, 186 A.2d 195 (1962) ............................................................................. 12
Pickett v. Prince Georges County,
291 Md. 648, 436 A.2d 449 (1981) ........................................................................12-13
Poffenberger v. Risser,
290 Md. 631, 431 A.2d 677 (1981) ............................................................................. 15
Tyler v. Secretary of State,
229 Md. 397, 184 A.2d 101 (1962) ........................................................................... 3, 5

ii
 TABLE OF CITATIONS
STATUTES AND LEGISLATIVE MATERIALS
Election Law 6-103 .......................................................................................................... 6
Election Law 6-202 ...................................................................................................16-17
Election Law 6-203 .......................................................................................1-6 & n.3, 18
Election Law 6-206 ...................................................................................................16-17
Election Law 6-207 ............................................................................................... 1-2, 5-6
Election Law 6-208 .........................................................................................16-18 & n.5
Election Law 6-209 ............................................................................. 6, 10-11, 14, 16-17
Election Law 6-210 ....................................................................... 10-11, 13-14, 16 & n.5
Department of Legislative Services,
Fiscal and Policy Note Regarding Senate Bill 101 (2006) (E97-98)............................ 3
Code Article 33, 169 (1964) ............................................................................................. 4
Montgomery County Charter 114 .................................................................................... 7

iii
 Appellants respectfully submit this brief in response to the briefs of the BOE and
amicus MCRG filed on August 28, 2008.1 For the reasons set forth in this brief and in
Appellants opening brief filed on August 20, 2008, the circuit court ruling upholding the
referendum at issue should be reversed, and the ruling declaring the petition to be
insufficient should be affirmed. The referendum petition, which fails to carry the
requisite number of valid signatures, should not be permitted on the November 4, 2008
election ballot. The transgender anti-discrimination law it wrongly suspended was duly
enacted by a unanimous County Council following public hearings and testimony. That
law should be permitted to take effect without further delay.
ARGUMENT
I. The Circuit Court Erred In Ruling That Elec. Code 6-203(a)(1) Has No
Force And Effect.
The requirements of Elec. Code 6-203(a)(1) could not be more precise or
unambiguous. That provision provides that [t]o sign a petition, an individual shall . . .
sign the individuals name as it appears on the statewide voter registration list or the
individuals surname of registration and at least one full given name and the initials of
any other names . . . Subsection (b)(1) of 6-203 further provides that [t]he signature
of an individual shall be validated and counted if . . . the requirements of subsection (a) of
this section have been satisfied (emphasis supplied). It is undisputed that the BOE
counted as valid 5,735 purported petition signatures filed with MCRGs second, February
19, 2008, signature submission which failed to comply with the terms of 6-203, and
that Appellants claim seeking invalidation of these signatures was timely filed. It is
further undisputed that if these signatures are held to be invalid, the petition carries
insufficient valid signatures and must be de-certified on this ground alone. (App8, 13)
The BOE contends that these provisions were implicitly repealed by a 2006
amendment to the Election Code, codified at 6-207(a)(2), which relieved election

1
The abbreviations Appellants used in their August 19, 2008 brief are applied here as
well.

1
boards of the responsibility to compare petition signatures with signatures on voter
registration cards to verify that the signatures were not forged.
Appellants opening brief already responds to the BOEs principal arguments
advanced to support its theory that 6-203(a)(1) may be disregarded. (See Appellants
Br. at 17-25.) As Appellants explained, based on their clear terms and legislative
histories, 6-203 and 6-207(a) are fully distinct and can and must be read to give effect
to each. See, e.g., Mayor and Town Council of Oakland v. Mayor and Town Council of
Mountain Lake Park, 392 Md. 301, 316, 896 A.2d 1036, 1045 (2006) (the court
construe[s] a statute as a whole so that no word, clause, sentence, or phrase is rendered
surplusage, superfluous, meaningless, or nugatory) (citation omitted); Bienkowski v.
Brooks, 386 Md. 516, 536-37, 873 A.2d 1122, 1134-35 (2005) (in ascertaining meaning
of statutory provision, court first looks to normal, plain meaning of the language, and,
if that is clear and unambiguous, will not look past those terms) (internal quotation marks
and citations omitted).
Section 6-203(a)(1) requires that an individual sign using basic and easy to
provide identifying information their last and at least one other name and the initials
of any remaining names. The BOE in turn validate[s] and count[s] pursuant to 6-
203(b) those signatures that satisfy the minimal requirements of 6-203(a). In the
distinct step outlined in Elec. Code 6-207, the BOE also verif[ies] that signers are
registered voters. Thus validation under 6-203 and verification under 6-207 are
distinct requirements, demanding more than simply verification by the BOE that a
purported signer is a registered voter. Contrary to the BOEs contention, these terms are
not used interchangeably in the Election Code (Appellees Br. at 34 n.11), and to read
them, and the provisions of 6-203 and 6-207 to which they respectively relate, as one
and the same thing, violates fundamental canons of statutory construction.
It also ignores the legislative history and intent behind these provisions. As
explained in Appellants opening brief, 6-203 and 6-207 were both enacted in original
form in 1998. Each has undergone amendments since. The General Assembly
determined to eliminate 6-207s provision for signature comparison in recognition that

2
calling on election board staff to engage in handwriting analysis was an unduly subjective
and burdensome process. See Dept of Legis. Servs. Fiscal and Policy Note regarding
S.B. 101 (2006), at E97-98; Appellees Br. at 28-29. Notably, however, the General
Assembly left 6-203(a)(1)s detailed, unambiguous name requirement intact. Had the
General Assembly wished to eliminate that specific provision, it could have and
presumably would have done so. (See Appellants Br. at 18-21.)
The minimal name information called for under 6-203(a)(1) remains an
important safeguard against allowing referendum petitions that do not carry sufficient
popular support or are infected by fraud to undermine the legislative function of
representative democracy. This Court has long recognized that:
The exercise of the right of referendum is drastic in its effect. The very
filing of the [referendum] petition, valid on its face, suspends the operation
of any of a large class of legislative enactments and provides an interim in
which the evil designed to be corrected by the law may continue unabated,
or in which a need intended to be provided for, may continue unsatisfied.
City of Takoma Park v. Citizens for Decent Govt, 301 Md. 439, 448, 483 A.2d 348, 353
(1984), quoting Tyler v. Secy of State, 229 Md. 397, 402, 184 A.2d 101, 103-04 (1962).
The referendum is a concession to an organized minority and a limitation upon
the rights of the people. Takoma Park, 301 Md. at 449, 483 A.2d at 354. The strict
requirements laid down in the Election Code to petition for referendum strike a balance
between accommodating on the one hand the privilege of referendum, id. at 448, 483
A.2d at 353, and on the other the constitutionally-prescribed system of representative
democracy and the right of the people to have their elected representatives enact
legislative reforms. The referendum requirements protect against fraud and allowing
referenda efforts lacking insufficient popular support to cause suspension of duly enacted
legislation. In a long line of unbroken cases, this Court has held that particularized
referendum requirements must be complied with strictly. See cases cited in Appellants
Br. at 12-14. The Court repeatedly has rejected efforts to construe such specific
provisions as 6-203(a)(1) as merely directory rather than mandatory, see, e.g.,
Barnes v. State ex rel. Pinkney, 236 Md. 564, 574-75, 204 A.2d 787, 792-93 (1964), and

3
otherwise to dilute safeguards in the election laws circumscribing the drastic effects of
referenda.
Barnes considered these underlying political concerns along with well-settled
canons of statutory interpretation in upholding former Article 33, 169, a provision of
state election law requiring petition signers to print as well as sign their names. This
Court held that the General Assemblys specific requirement that names appear in print
could not be disregarded as merely directory and that signatures that did not comply
with this requirement should not be counted. Id. at 572-73, 204 A.2d at 791.2 The Court
further held that enforcing this requirement did not unduly burden the right to petition for
referendum. Id.
The BOE claims that Barnes has been legislatively overruled by subsequent
statutory changes to the election laws. But, if anything, since Barnes the legislative
requirements for a referendum have become more, not less, stringent. First, the General
Assembly has preserved the very printed name requirement in 6-203(a) that Barnes
upheld decades ago. Section 6-203(a)(2)(i) continues to require that the signers name be
included in print.3 Moreover, the General Assembly just a decade ago added 6-
203(a)(1)s signature requirement and has preserved it through successive revisions to
Title 6 of the Election Code. This evidences not an intention to overrule Barnes but
rather to continue to impose and enforce particularized referenda requirements upheld by
this Court in Barnes and in prior and subsequent decisions.
Furthemore, while the General Assembly could have but did not eliminate
specific signature requirements, it could not have legislatively overruled Barness
holding that it is constitutional to impose such requirements in the referendum context.

2
The referendum petition at issue in Barnes sought repeal of the then newly enacted
State law prohibiting the denial of public accommodations on the basis of race, religion,
and national origin, a precursor to the anti-discrimination law at issue here. See id. at
567, 204 A.2d at 788.
3
Section 6-203(a)(2)(i) provides that [t]o sign a petition, an individual shall . . . include
. . . printed or typed . . . the signers name as it was signed.

4
Nor could it overrule the requirement of strict compliance with referendum safeguards as
set forth in Barnes, Tyler, Takoma Park, and other cases. As this Court explained in
Tyler, it is clear . . . that the stringent language employed in [Md. Const. Art. XVI,]
Section 4 . . . shows an intent that those seeking to exercise the right of referendum in this
State must, as a condition precedent, strictly comply with the conditions prescribed. 229
Md. at 402, 184 A.2d at 104.
Particularly with the amendment to 6-207 eliminating the BOEs obligation to
match signature handwriting, 6-203(a)s name (and other) requirements remain
important safeguards against fraud and abuse. As was already shown to be the case with
respect to the MCRG petition, it is all too easy to pack a petition with numerous improper
signatures affixed or vouched for by overly-zealous petition circulators. See
Appellants Br. at 21-22 (discussing circuit courts disqualification of multiple MCRG
petition signatures made by same hand); E910-15 (examples of irregular signature entries
disqualified by court below after having been credited by the BOE). See also Lemons v.
Bradbury, No. 08-35209, 2008 WL 3522418 (9th Cir. Aug. 14, 2008) (upholding
minimal burden signature requirements place on right to participate in referendum
process in order to counter risk of abuse). The requirement that signers use not only their
last names but also their other names and/or initials specifically commanded by the
General Assembly in 6-203(a)(1) and preserved through successive revisions to Title 6
of the Election Code is a simple expedient that ensures referenda are launched based
on more than a list of abbreviated names and addresses pulled from a telephone directory.
The BOE contends that birthdates provided by signers offer protection against
abuse and sufficient information to verify that a signer identified merely by last name
and an initial is a registered voter at the given address. (Appellees Br. at 30-31.) Even if
this were the case, however, the General Assembly determined not to require dates of
birth on referenda petitions and instead settled on the safeguard that signers must give
fuller names and initials. This requirement cannot be disregarded by the BOE or the
courts. Moreover, the BOE cannot rely on the excuse that it substituted date of birth to
verify signatures where statutorily-required name information was missing, given that it

5
accepted numerous purported signatures that did not comply with 6-203(a)(1) even
where no date of birth was volunteered.4
Finally, the BOE suggests that laxer State Board of Elections COMAR regulations
and guidelines may trump 6-203(a)(1)s specific, explicit requirements. (See
Appellees Br. at 26-28, 30.) As already addressed in Appellants opening brief, the State
Board is empowered to adopt regulations only if they are consistent with Title 6, to
carry out the provisions of this title. Elec. Code 6-103(a)(1). It is impossible to
imagine a more precise, unambiguous direction than appears in 6-203(a)(1).
Administrative regulations and guidelines providing that signatures not in compliance
with that strict legislative mandate may nonetheless be validated and counted are flatly
inconsistent with the law and are ultra vires. See Appellants Br. at 24-25.
The BOEs position ultimately may be that the amendment of 6-207(a)(2)
clarified and limited the responsibilities of boards of elections in the signature review
process, relieving them of the responsibility to ensure compliance with 6-203(a)(1) as
well as with the repealed obligation to compare signature handwriting. But even if the
Election Code could be read this way which for the reasons given here and in
Appellants earlier brief would simply be wrong at most 6-207(a)(2)s amendment
affected only the duties of election boards, not the responsibilities of petition sponsors
and the ongoing force of safeguards for the public benefit provided through the still-
standing requirements of 6-203. Even if it is the BOEs position that it is no longer
tasked with enforcing 6-203, concerned registered voters remain empowered to seek
enforcement of these provisions in the courts. See Elec. Code 6-209(b). That is
precisely what Appellants have done here.

4
Examples of incomplete signature entries unsupported by birthdates yet credited by the
BOE appear at pages 290-309 of the Record Extract.

6
II. The Circuit Court Correctly Ruled That The BOE Erred In Excluding
Inactive Voters From Its Calculation Of Required Petition Signatures And
That The Petition Thus Failed To Carry Signatures Of 5% Of Registered
County Voters.
Under 114 of the Montgomery County Charter, a law may be suspended and
sent to referendum only if 5% of the registered voters of the County seek that result by
signing a referendum petition. The circuit court correctly ruled that the BOEs exclusion
of inactive voters from its determination whether 5% of County voters supported the
referendum violated the law. (App19-21) As a result, this manifestly insufficient
referendum should not be allowed on the November 2008 ballot.
As explained in Appellants opening brief (Appellants Br. at 25-34), inactive
voters are disenfranchised every bit as much by going uncounted in the pool of voters
from which sufficient support must be won to achieve a referendum as they would be if
their signatures on a referendum petition were to go uncounted. Either way, the
preferences of inactive voters whether to allow enacted legislation to take effect or be
halted by a referendum petition are disregarded. The only way to oppose a referendum
petition is by not signing it and by being counted among those whose decision whether or
not to sign the petition matters in the political process. The BOEs methodology
excludes Montgomery County registered inactive voters from the political process by
refusing to count their vote not to sign a referendum petition and not to block from
taking effect a law enacted by elected representatives. This Court held in Maryland
Green Party v. Maryland Board of Elections, 377 Md. 127, 832 A.2d 214 (2003), and
Gisriel v. Ocean City Bd. of Supervisors of Elections, 345 Md. 477, 693 A.2d 757 (1997),
that it is unconstitutional to treat inactive voters this way. (See Appellants Br. at 30-34.)
Excluding inactive voters entirely from the denominator of the calculation whether
5% of County voters support a referendum but not from the numerator compounds the
constitutional violation by giving weight only to the preferences of those inactive voters
who side with a petition sponsor, while completely disregarding the preferences of those
who do not support and hence do not sign the petition. Indeed, this Court in Green Party
specifically explained that if the signatures of inactive voters on petitions are counted in

7
the numerator of a registered voter percentage requirement, so must inactive voters be
counted in the denominator:
If inactive voters are not counted for petition purposes, then consistency
would demand that they cannot be counted among the total number of
voters which the percentage signature requirement is based upon. . . . For
instance, if the total number of registered voters in an election district is
11,000, but 1000 of these voters are on the inactive registration list, then a
one percent signature requirement would apparently direct a petition-
circulator to obtain 100 signatures, or 1% of 10,000. On the other hand, if
inactive voters names are permitted to appear on petitions, then, in the
example above, the circulator must collect 110 signatures to meet the
requirement of 1% of 11,000.
377 Md. at 152, 832 A.2d at 228-29 (citation omitted and emphasis added).
Contrary to the assertions of the BOE and amicus MCRG, counting inactive voters
in the denominator as well as the numerator of the calculation does not improperly
inflate the number of signatures required. (Appellees Br. at 43; see MCRG Br. at 15.)
Rather, including inactive voters gives the preferences of these Montgomery County
voters the weight to which they are entitled.
MCRG contends that the preferences only of those Montgomery County voters
who are politically active and likely to show up on election day should matter in the
referendum process. (MCRG Br. at 15.) It further asserts that [i]n this regard, inactive
voters are no different from children or the insane (or other citizens who are not
politically active and will not participate on election day). Id. This Court in Green
Party already addressed and rejected on constitutional grounds this faulty
reasoning.
Green Party specifically forbade such differential treatment of inactive voters in
the political process based on their past failure to vote. The Court noted that
[d]isqualification from the right to vote in Maryland is limited to voters who either are
convicted of infamous or other serious crimes or who are under care or guardianship for a
mental disability. . . . Nowhere in Article I does it state or suggest that voting rarely,
sporadically, or infrequently, are grounds for being stricken from the uniform [voter]
registry. 377 Md. at 143, 832 A.2d at 223 (internal citation omitted). The Court

8
explained that [t]here is no constitutional reason why a once-qualified registered voter,
who chooses not to vote frequently, should find his or her right to take part in the
[candidate] nomination process curtailed. Id. at 151, 832 A.2d at 228.
[W]e stress that the Maryland Constitution sets forth the exclusive
qualifications and restrictions on the right to vote in the State of Maryland.
The Legislature may not impose additional qualifications or restrictions by
requiring voters to cast their votes frequently. Nor may the Board regulate
the registry to effect such unconstitutional ends. . . . For the foregoing
reasons, we hold that any statutory provision or administrative regulation
which treats inactive voters differently from active voters is invalid.
Id. at 152-53, 832 A.2d at 229 (emphasis in original).
Denying inactive voters a say in the referendum petition process (unless, as
MCRG and the BOE would have it, the inactive voter supports the petition and only then
gets to have his or her views counted) restricts the rights of inactive voters to participate
in the democratic process, merely because they do not cast their votes frequently. Id.
The BOEs flawed methodology thus effects an unconstitutional end[]. Id.
Following Green Party, the General Assembly in its 2005 revisions to Title 3 of
the Election Code specifically deleted earlier statutory references that would have
permitted exclusion of inactive voters for purposes of fixing the number of signatures
needed on a petition. (See Appellants Br. at 26-30.) The BOEs contention that it is
free to exclude inactive voters in this context as nothing more than an administrative
matter is inconsistent with the statutory scheme and ignores the very significant impact
on the political process and constitutional rights of inactive voters.
The voters of Montgomery County, regardless whether they vote frequently or not,
are entitled to have their County Council enact laws for their benefit and to have those
laws take effect unless 5% of all voters actively seek a referendum by signing a petition.
If 5% of voters, active and inactive alike, cannot be persuaded to sign a petition for
referendum, there is no right to have the law halted and put to popular vote. That is the
system we have under the State Constitution and County Charter. Neither the BOE nor

9
MCRG is entitled to exclude whole classes of voters from consideration in the political
process in order to achieve MCRGs ends.5
III. The Circuit Court Erred In Holding That The Statute Of Limitations Bars
Part of Appellants Action.
Based on its misapplication of the statute of limitations provision of Elec. Code
6-210(e), the circuit court incorrectly ruled that this manifestly insufficient referendum
petition may nonetheless proceed to ballot. The BOEs arguments in support of that
erroneous ruling are unavailing.
A. The Statute of Limitations Does Not Apply to Appellants Action.
First, the BOE argues that because Appellants action was one for judicial
review, it was therefore subject to the 10-day statute of limitations provided in Elec.
Code 6-210(e). (See Appellee Br. at 12-15.) The BOE concedes that Appellants were
not persons aggrieved and that therefore 6-209(a) does not apply to Appellants
action. (See Appellee Br. at 12 (person aggrieved means only sponsors of referendum
petitions).) This concession eviscerates any claim that the statute of limitations
provision of 6-210(e) applies to Appellants action. (See Appellants Br. at 38-39.)
More generally, the BOEs analysis of the statutory language does not take account of the
full language of the statute and is therefore flawed.
Initially, the BOE focuses solely on the term judicial review to support its
argument that the statute of limitations provision of 6-210(e) applies both to traditional
judicial review and to actions for declaratory relief. (See Appellees Br. at 12.)
However, that is not the entirety of the relevant statutory provision. Section 6-210(e)(1)
provides, in full, as follows:

5
MCRGs threat that it will launch its own lawsuit if this Court rules that the petition
must be de-certified rings hollow. (See MCRG Br. at 19.) MCRG has had amicus status
throughout this litigation and has already asserted any legal arguments it can marshal to
defend this unlawful referendum. The decision of this Court on the legal questions
relevant in this case will have binding, stare decisis effect in any subsequent, fruitless,
litigation filed by MCRG. See, e.g., Halliday v. Sturm, Ruger & Co., Inc., 138 Md. App.
136, 169, 770 A.2d 1072, 1091 (2001), affd, 386 Md. 186, 792 A.2d 1145 (2002).

10
 Except as provided in paragraph (2) of this subsection, any judicial review
of a determination, as provided in 6-209 of this subtitle, shall be sought
by the 10th day following the determination to which it relates.
The relevant phrase in the context of this case is judicial review of a determination, as
provided in 6-209 of this subtitle (emphasis added). The statute does not, as the BOE
argues, require that any claim regarding any determination must be filed within 10 days.
Rather, it says that judicial review of the types of determinations specifically
provided in 6-209 must be filed within 10 days.
Only one subpart of 6-209 applies to judicial review of a determination. That
is 6-209(a), which also requires that the party filing for such judicial review be a
person aggrieved. The BOE concedes that subsection (a) of 6-209 does not apply to
Appellants, as they were not sponsors of referendum petitions, see Appellees Br. at 12.
It nevertheless contends that 6-210(e) applies to actions for declaratory relief pursuant
to subsection (b) of 6-209, which makes no reference either to judicial review or to a
determination, necessary components of the 10-day limitations provided in 6-210(e).
Section 6-209(b), under which Appellants proceed, provides that:
Pursuant to the Maryland Uniform Declaratory Judgments Act and upon the
complaint of any registered voter, the circuit court of the county in which a
petition has been or will be filed may grant declaratory relief as to any
petition with respect to the provisions of this title or other provisions of
law.
There is no reference in subsection (b) to judicial review, nor to the types of
determinations referred to in subsection (a), nor to determinations generally.
Nonetheless, and without support, the BOE contends that all actions for judicial review
under 6-209 must be brought within ten (10) days of the determination to which the
action relates. See Appellees Br. at 13. As the BOE has conceded that Appellants are
not subject to the only statutory provision that actually links 6-210(e) to 6-209, this
argument lacks any legal or logical support.
The BOE further contends that, if the Appellants are correct,
then anyone challenging a petition could couch their challenge as one for
declaratory relief in order to avoid the ten day time limit, and challenges to
petitions could be brought for an indefinite period, perhaps even after an

11
 election. Construing the statute in that manner would thus lead to an absurd
result.
Appellees Br. at 14. However, this argument ignores the BOEs own concession that
petition opponents are not persons aggrieved, id. at 12, and must, of necessity, file their
actions as claims for declaratory relief irrespective of any intent to avoid a statute of
limitations.
In addition, this argument by the BOE also ignores two principles enunciated by
this Court that limit claims for relief by petition opponents both as to time and as to
scope. First, in Parker v. Board of Election Supervisors, 230 Md. 126, 186 A.2d 195
(1962), this Court applied a laches analysis to the claims of opponents of a referendum
petition, having concluded that there was no statute of limitations applicable to the action.
Id. at 132, 186 A.2d at 198. More recently, this Court has applied a similar analysis to a
challenge to the qualifications of a candidate to be on the ballot for Attorney General.
Liddy v. Lamone, 398 Md. 233, 242-44, 919 A.2d 1276, 1282-83 (2007) (citing series of
cases, including Parker). This analysis was set forth in Appellants original brief (see
Appellants Br. at 39 n.10), and was also discussed more extensively in the amicus brief
filed by the Public Justice Center et al. (at 10-13). The BOE, by arguing that claims
could be brought for an indefinite period, has simply ignored this briefing and the laches
analysis of this Court set forth in Parker and more recently in Liddy.
Similarly, the argument that claims could be brought even after an election,
while true, ignores the distinction this Court has made in past cases distinguishing
between pre-election and post-election claims. Most significantly, in Takoma Park, this
Court recognized the prospect of claims being filed after an election, but held that such
claims would be held to a higher standard than similar claims made in a pre-election
context:
When the court considers, prior to an election, an attempt to prevent the
statute from going into force by use of a referendum petition, there must be
strict compliance with the prerequisite of such suspension. On the other
hand, in an effort not to thwart the will of the people, in a postelection
challenge, the fact that the question on the ballot referred to improvements
of roads rather than streets, that although an election was well publicized

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 the notice was not in the precise manner required, or that some forbidden
place such as a bowling alley was used as a polling place will not invalidate
the statute under consideration.
301 Md. at 446-47, 483 A.2d at 352, quoting Pickett v. Prince Georges County, 291 Md.
648, 659, 436 A.2d 449, 455 (1981).
Thus, the idea of a post-election claim is by no means absurd, as contended by
the BOE; however, it might be subject to a more stringent analysis than would an
identical pre-election claim.
Finally, the statute of limitations provision that the BOE seeks to apply in this
case, Elec. Code 6-210(e), appears in the context of a detailed statute that does not in
any other manner address claims by petition opponents, but instead addresses claims only
by petition sponsors. Section 6-210, in its entirety, reads as follows:
6-210. Schedule of process
Request for advance determination
(a)(1) A request for an advance determination under 6-202 of this subtitle
shall be submitted at least 30 days, but not more than 2 years and 1 month,
prior to the deadline for the filing of the petition.
(2) Within 5 business days of receiving the request for an advance
determination, the election authority shall make the determination.
Notice
(b) Within 2 business days after an advance determination under 6-202 of
this subtitle, or a determination of deficiency under 6-206 or 6-208 of
this subtitle, the chief election official of the election authority shall notify
the sponsor of the determination.
Verification and counting
(c) The verification and counting of validated signatures on a petition shall
be completed within 20 days after the filing of the petition.
Certification
(d) Within 2 business days of the completion of the verification and
counting processes, or, if judicial review is pending, within 2 business days
after a final judicial decision, the appropriate election official shall make
the certifications required by 6-208 of this subtitle.

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 Judicial review
(e)(1) Except as provided in paragraph (2) of this subsection, any judicial
review of a determination, as provided in 6-209 of this subtitle, shall be
sought by the 10th day following the determination to which it relates.
(2) If the petition seeks to place the name of an individual or a question on
the ballot at any election, judicial review shall be sought by the day
specified in paragraph (1) of this subsection or the 63rd day preceding that
election, whichever day is earlier.
In interpreting a statute, this Court has held that we must consider the context in
which the constitutional provision, statute, or rule appears, including related statutes or
rules, and relevant legislative history. Davis v. Slater, 383 Md. 599, 605, 861 A.2d 78,
81 (2004) (citations omitted). Read in context with the remainder of 6-210, it is clear
that the statute of limitations provision of 6-210(e)(1) does not apply to claims by
petition opponents, only to claims for judicial review by persons aggrieved, i.e.,
petition sponsors. As Appellants were opponents, not sponsors, of the referendum
petition in this case, their action was not subject to the 10-day limitations period in 6-
210(e)(1), and the circuit court erred in applying it.
B. Even Assuming the Statute of Limitations Applies, Appellants Claims
Were Timely Filed.
Even if this Court determines to apply the statute of limitations provisions of 6-
210(e) to Appellants action, the action was still timely filed. The BOE posits a series of
dates which it contends triggered Appellants obligation to take legal action respecting
the inactive voter error. Appellants submit that none of these proposed scenarios
comports with the statutory provisions as written, and that, if the actual provisions of 6-
210(e) and 6-209(a) are applied, Appellants action was timely.
1. No Publicly Available Records Revealed The BOEs Erroneous
Exclusion Of Inactive Voters.
The BOE contends that it made the determination as to the number of registered
voters for purposes of calculating the number of signatures required on the Petition on
November 30, 2007. (See Appellees Br. at 15.) It then adds that [d]ocuments
reflecting this determination were a matter of public record and available for inspection

14
by the public at [its] office. Id. The BOEs analysis is based entirely upon the notion of
constructive notice, in derogation of this Courts ruling in Poffenberger v. Risser, 290
Md. 631, 431 A.2d 677 (1981), that actual, and not constructive, notice is required before
the statute of limitations will begin to run. (See Appellants Br. at 40-41.)
In any event, Appellants and the public were never on notice of any kind, actual or
constructive, of the data and methodology used by the BOE to miscalculate the signature
requirement. The BOE repeats throughout its brief the mantra that its exclusion of
inactive voters was a matter of public record and freely available to the public. (See,
e.g., Appellees Br. at 15, 16, 18, 20, 23.) This is not true. The only supposed public
record the BOE points to is the monthly report of the State Board of Elections as to the
number of registered voters by county as of November 30, 2007. (E521) This does not
provide the notice that the BOE claims. An interested member of the public, having
looked at the monthly statistical report for the month of November, would not be able to
tell (1) the total number of active and inactive voters in Montgomery County as of
November 30, 2007, and certainly not as of November 21, 2007, the date used by the
BOE for its calculation; (2) how to link the information on the statistical report to a
private communication from the BOE to the petition sponsor; and (3) that the BOE had
incorrectly excluded inactive voters from the total number of registered voters as of
November 21, 2007 in calculating the number of signatures required to meet the 5%
requirement. The BOE does not even have any record, public or otherwise, of the
numbers of active and inactive voters as of November 21, 2007 from which it actually
calculated the 25,001 voter figure it provided to MCRG. (See Appellants Br. at 7-9.)
Nor was there anything about the 25,001 voter signature figure in and of itself that might
have caused a member of the public to suspect that the BOE had derived that number
based on an erroneous formula.
Moreover, the BOE failed to respond in discovery to a number of requests for
information that would have led to revelation of the BOEs erroneous methodology.
(E553-54) Appellants specifically raised the issue in their summary judgment motion
filed on June 2, 2008, calling for the BOE to explain the methodology it had used to

15
determine the required number of petition signatures. (E145-46 n.3) Even counsel for
the BOE could not, prior to June 11, 2008, definitively state whether inactive voters were
included in the denominator or not, despite multiple requests for this information. (E552-
53) The reality is that there was no publicly available record of the methodology and
numbers used by the BOE to miscalculate the signature requirement. Appellants cannot
be held to a 10-day limit to challenge a methodology that was not publicly available
information and that was only disclosed after repeated demands well into the litigation.
2. The BOE Did Not Make A Determination Pursuant To
6-209(a) On November 30, 2007, December 3, 2007, Or
February 20, 2008.
The BOE assumes, without even arguing, that any determination is subject to
the 10-day statute of limitations provisions of 6-210(e). This is plainly not the case.
The statute of limitations does not apply to claims regarding any determination
instead, by the plain terms of the statute, it applies only to judicial review of a
determination, as provided in 6-209 of this subtitle . . . (emphasis added). Section 6-
209, in turn, refers only to three very specific determinations that may be the subject of
judicial review: advance determinations pursuant to 6-202; time of filing
determinations pursuant to 6-206; and determinations as to other requirements
established by law pursuant to 6-208(a)(2).6
The question then becomes, were any of the claimed determinations of the BOE
of the type to fit within the three specific determinations identified in 6-209(a) as
being subject to the statute of limitations? The answer, for all determinations prior to the
March 6, 2008 determination to certify the MCRG referendum petition for the November
ballot, is no.

6
Significantly, not included as one of the determinations from which judicial review may
be sought, and to which the 10-day statute of limitations provision of 6-210(e) would
apply, is a determination pursuant to 6-208(a)(1) (all requirements established by law
relating to the number . . . of signatures). This is the determination that is most
relevant to the claims made by Appellants with respect to the exclusion of inactive voters
from the calculation of the 5% requirement for the MCRG referendum petition.

16
 The November 30 communication was not an advance determination pursuant to
6-202, which only deals with the sufficiency of the format of the petition. Nor was it
a time of filing determination pursuant to 6-206, for the obvious reason that the petition
was not filed on November 30, 2007. Nor was it a determination as to other
requirements established by law pursuant to 6-208(a)(2), because (1) it was not made
[a]t the conclusion of the verification and counting processes and (2) the determination
of the number of signatures required by law is covered by 6-208(a)(1) and not 6-
208(a)(2).
The BOE makes a similar argument for its December 3, 2007 communication to
MCRG. (See Appellees Br. at 18-19.) The December 3, 2007 BOE determination was,
in part, an advance determination pursuant to 6-202; however, as set forth above, such a
determination is limited by statute to a determination of the sufficiency of the format of
the petition. The fact that the BOE proceeded as part of that communication to make a
generic and erroneous determination as to a separate issue the number of signatures
required does not make the numerical calculation part of the statutory advance
determination as to petition format. It was not a time of filing determination pursuant to
6-206 because, again, there was no petition filed on December 3, and it was not a 6-
208(a)(2) determination, because, again, it was not made [a]t the conclusion of the
verification and counting processes.
The BOE makes a further claim that the February 20, 2008 communication,
verifying the first half of MCRGs signature submissions, constituted a determination
that triggered the statute of limitations. Again, however, the BOE assumes rather than
argues that any determination qualifies as a sufficient trigger for the statute of limitations.
But only the three types of determinations delineated in 6-209(a) trigger the statute of
limitations, and the February 20, 2008 communication was none of these. It was not an
advance determination; that was made on December 3, 2007, and only related to the form
of the petition. It was not a time of filing determination nothing was filed on February
20, 2008. And it was not a determination as to other requirements established by law
pursuant to 6-208(a)(2) it was not made at the conclusion of the verification and

17
counting processes and, again, the question of numerical sufficiency is covered by 6-
208(a)(1) and not 6-208(a)(2).
3. The Amended Complaint Relates Back To The Original Date Of
Filing Of The Complaint On March 14, 2008.
The BOE finally argues that Appellants were required to file an action within 10
days of March 6, 2008, and that although they did so on March 14, 2008, they did not
include a claim regarding the exclusion of inactive voters from the denominator of the
5% calculation until the filing of the amended complaint on July 8, 2008. (See
Appellees Br. at 20-21.) This argument ignores the fact that paragraph 51 of the original
Complaint asserted that the MCRG referendum petition did not contain a sufficient
number of signatures to qualify for the ballot. (E26) Under such circumstances, and as
the circuit court recognized, the amended complaint did not state a new claim but simply
a more precise version of the more general claim set forth in the original complaint, and
therefore the relation back doctrine applied. (See App4, E795; see also E529 n.2)7
CONCLUSION
For the reasons stated herein and in Appellants August 20, 2008 brief, Appellants
respectfully request that the Court (1) affirm the circuit courts ruling that the BOE
incorrectly excluded inactive voters from its calculations and that the petition fails to
carry the required number of signatures, and (2) reverse the circuit courts rulings that (a)
Appellants objections to the manifestly insufficient petition are time-barred, and (b)
signature entries that fail to comply with 6-203(a) were appropriately counted.
Appellants further request that the Court enter a declaratory judgment de-certifying the

7
Likewise unavailing is Appellees claim in Point IV of its brief that Appellants failed to
raise in the circuit court certain arguments asserted on appeal and that those arguments
should not be considered now. Appellants did assert that a statute of limitations ruling
such as the circuit court rendered would violate constitutional due process guarantees;
lead to premature, unripe litigation; and result in an illegal referendum from which relief
should be granted. (See, e.g., E138-39, 160-62, 366, 545, 555.) Moreover, in any event,
this Court has discretion to excuse a waiver on appeal and address an issue, particularly
one of high public importance. See Moats v. City of Hagerstown, 324 Md. 519, 525-26,
597 A.2d 972, 975 (1991). These arguments are appropriately considered by this Court.

18
petition for referendum, enjoining the referendum from proceeding on the November 4,
2008 ballot, and ordering that the anti-discrimination law have immediate force and
effect.
Date: September 3, 2008
Respectfully submitted,

JONATHAN S. SHURBERG, P.C.

Jonathan S. Shurberg, 14365
1317 Apple Avenue
Silver Spring, MD 20910
(301) 585-0707

LAMBDA LEGAL DEFENSE &

EDUCATION FUND, INC.
Susan L. Sommer*
Natalie Chin*
120 Wall Street, Suite 1500
New York, NY 10005
(212) 809-8585
* Admitted pro hac vice pursuant to
Order of the Circuit Court

ARNOLD & PORTER LLP

Joseph S. Kakesh*
555 Twelfth Street, N.W.
Washington, D.C. 20004-1206
(202) 942-5000
* Counsel for Jane Doe, John Doe, Anne
Marie Ellestad, Letitia B. Hall,
Elbridge G. James, Sheryl L. Katzman,
Gerald Serotta, Maria Del Pilar Torres,
Patricia Walker, and Bruce R.Williams

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that two copies of Appellants/Cross-Appellees

Reply Brief were delivered next day delivery to Kevin Karpinski and

Victoria M. Shearer, Karpinski, Colaresi & Karp, Board of Elections,

120 East Baltimore Street, Suite 1850, Baltimore, Maryland 21202 on

this 3rd day of September 2008.

Respectfully submitted,

Lisa Busby
Attorneys Appellate Services, Inc.

This Reply Brief has been typed in a 13 point font, Times New Roman.

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