Referendum on referendums

Our view: Cordish fight against voter referendum has revealed a serious problem with the process

May 28, 2010

No matter how Anne Arundel Circuit Court Judge Ronald A. Silkworth ultimately rules on the validity of the petition brought by opponents of the billion-dollar slots facility at Arundel Mills mall, at least one troubling question about such voters referendums has been raised: How could anyone know the people who signed it are who they say they are?

Lawyers representing a Cordish Cos. subsidiary have been frustrated in their attempts to get the court to review this very question. The judge has repeatedly ruled that the court's purpose is merely to consider the administrative procedures of the county election board and not to hear new evidence — even if it suggests some signatures were made by the same hand.

That may be legally correct, but what if the Cordish version of events is true? What if the petition to bring the county's zoning approval for the slots facility to voter referendum was the result of "massive fraud" as company lawyers have alleged? That may seem unlikely, but it appears the state and local elections offices have precious little defense against just that possibility.

As elections officials have testified, when such a petition is submitted, they only make sure the names are of registered voters and not much else. There appears to be no mechanism to ensure that the people who signed the petition are the real deal.

The irony of this is that elections officials have been extremely careful to make sure that names on the petition precisely match names on the voters roles. Someone who is registered to vote as John Andrew Smith but signs the petition as John Smith would be considered invalid. That's the strict standard embraced by the Maryland Court of Appeals in 2008 and one that we have complained about in the past.

But what if instead of collecting signatures, petitioners merely sat around a table and wrote out voter names and forged signatures? Petitioners would have to lie about it (they have to legally attest to each page) and risk criminal prosecution, but the chances of them getting caught would appear nil.

We have no way of knowing whether anything like that happened in this case — after all, by virture of Judge Silkworth's refusal to hear testimony on Cordish's allegations, they have not been subjected to the scrutiny of cross-examination. But the fact that neither the elections office nor the court thinks it has the obligation to check into the matter is troubling. Surely, elections officials can take some action when there are obvious signs of impropriety, such as a page where the handwriting of each signature appears identical. Wouldn't that deserve further investigation?

Adding to the problem is that referendum advocates often hire outside firms to collect the signatures — as they did in this instance. Their employees have an economic incentive to collect (or perhaps create) as many signatures as they can.

In Maryland elections, voters are presumed to be who they say they are, but even so, there are protections against fraud — it's a public process, and there are judges and other witnesses who can challenge a voter's standing. Voter petitions appear to have little protection from fraud whatsoever — aside from the peculiar need to have middle names or initials.

Judge Silkworth's ruling is not going to be the last word in the matter. The case is almost certain to eventually be heard for the state's highest court. But with so many other matters likely to be brought to referendum in future years, voters need to know the process to do so is protected from potential manipulation.

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