By Ann E. Marimow
Washington Post Staff Writer
Thursday, July 10, 2008
Gay and transgender rights advocates said yesterday that Montgomery County's Board of Elections miscalculated the number of signatures required to challenge a law that prohibits discrimination based on gender identity.
The argument, played out in Montgomery County Circuit Court, is a new wrinkle in the legal effort to block a referendum on an anti-discrimination measure the County Council passed last fall.
At issue yesterday was the formula used to determine the number of signatures required to put the measure on the November ballot and, more broadly, whether Montgomery voters will have the opportunity to accept or reject the law designed to protect transgender individuals from discrimination in housing, employment and public accommodations.
Montgomery joined 13 states, the District, Baltimore and 90 other jurisdictions last year in banning discrimination against transgender people. Opponents, led by the group Citizens for Responsible Government, blocked the law from taking effect by collecting enough signatures to force a referendum on the matter. The group says it is concerned about how the law would apply to facilities such as bathrooms and locker rooms.
In response, Equality Maryland -- the gay and transgender rights group -- challenged the validity of signatures on the petition calling for a vote. Elections officials set the mark for certification at 25,000 signatures, or 5 percent of registered voters. That figure did not include registered voters listed as "inactive" because they have not regularly participated in elections.
Jonathan Shurberg, an attorney for Equality Maryland, said in a court filing that the county should have included 52,000 inactive voters in its total, raising the number of signatures needed to reach the 5 percent mark. By that calculation, he said, opponents fell about 700 names short.
If elections officials accepted the signatures of inactive voters on the petition, as they did, Shurberg argued they should also have counted inactive voters in the overall total.
Board of Elections attorney Kevin Karpinski said yesterday that the challenge to the formula is invalid because it was raised for the first time during the trial, instead of during the 10-day window the law provides. He also said that earlier court rulings give elections officials discretion in determining whether to include inactive voters.
Circuit Court Judge Robert A. Greenberg appeared swayed by Shurberg's argument that state elections officials should have directed local officials to count inactive voters as well as active ones. Citing a Court of Appeals decision, Greenberg said the definition of "registered voter" has to include inactive voters. "I'm sort of surprised that the state board just disregarded this. This is very clear," he said.
But Greenberg also acknowledged the dilemma of telling Citizens for Responsible Government, the group that gathered the signatures, that it had done "everything right, except you got the wrong number from the people who were presumably in the know."
During a hearing last month, Greenberg rejected a challenge to the first of two batches of signatures, saying the gay and transgender rights advocates missed a critical deadline. His ruling narrowed the case to the validity of 6,200 other signatures.
Shurberg highlighted dozens of signatures yesterday that he said are defective and should be thrown out. In some instances, names were printed instead of signed, and in others, it appeared that one person had signed two names.
Greenberg seemed warm, however, to Karpinski's assertion that state law does not require elections officials to act as handwriting experts but to verify that signers are indeed registered voters. Greenberg is expected to issue a written opinion in the coming weeks.