Kendall v. Balcerzak

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL F. KENDALL, 

Plaintiff-Appellant,

v.

ANN M. BALCERZAK, President,

Howard County Board of

Elections; BETTY L. NORDAAS,

Director, Howard County Board of

Elections; ROBERT L. WALKER,



Chairman, Maryland State Board

of Elections; LINDA H. LAMONE, No. 09-2304

State Administrator, Maryland

State Board of Elections,

Defendants-Appellees,

and

HOWARD COUNTY BOARD OF

ELECTIONS; MARYLAND STATE

BOARD OF ELECTIONS,

Defendants.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

J. Frederick Motz, District Judge.

(1:09-cv-00660-JFM)

Argued: December 9, 2010

Decided: March 28, 2011

2 KENDALL v. BALCERZAK

Before AGEE and WYNN, Circuit Judges,

and Patrick Michael DUFFY, Senior United States District

Judge for the District of South Carolina, sitting by

designation.

Affirmed by published opinion. Senior Judge Duffy wrote the

opinion, in which Judge Agee and Judge Wynn joined.

COUNSEL

ARGUED: Susan Baker Gray, Highland, Maryland, for

Appellant. Kathleen Evelyn Wherthey, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Baltimore,

Maryland; Gerald M. Richman, Ellicott City, Maryland, for

Appellees. ON BRIEF: Douglas F. Gansler, Attorney Gen-

eral of Maryland, Baltimore, Maryland, Sandra Benson Brant-

ley, Assistant Attorney General, OFFICE OF THE

ATTORNEY GENERAL OF MARYLAND, Annapolis,

Maryland, for Appellees Robert L. Walker and Linda H.

Lamone.

OPINION

DUFFY, Senior District Judge:

This appeal arises out of a petition drive to obtain a referen-

dum on a zoning ordinance passed by the Howard County

Council, of Howard County, Maryland, on November 3,

2008. Paul F. Kendall, who signed the petition, filed a com-

plaint on March 16, 2009, and an amended complaint on

March 30, 2009, in the United States District Court for the

District of Maryland, pursuant to 42 U.S.C. § 1983, alleging

violations of his constitutional rights and demanding declara-

KENDALL v. BALCERZAK 3

tory and injunctive relief. The named Defendants were: How-

ard County, Maryland (the "County"), President Ann M.

Balcerzak and Director Betty L. Nordaas of the Howard

County Board of Elections (the "County Board Defendants"),

and Chairman Robert L. Walker and Administrator Linda H.

Lamone of the Maryland State Board of Elections (the "State

Defendants").

Kendall’s amended complaint asserted three counts against

the Defendants. In the first count, Kendall asserted that all

Defendants had denied his rights to freely associate, petition

the government, and vote, in violation of the First and Four-

teenth Amendments of the United States Constitution. The

second count asserted that all the Defendants had denied him

due process and equal protection in violation of the Four-

teenth Amendment of the United States Constitution. The

third count alleged that all Defendants had violated Kendall’s

constitutional rights that are protected under 42 U.S.C.

§ 1983.

The County and the County Board Defendants moved to

dismiss Kendall’s amended complaint, and the State Defen-

dants filed an answer asserting that the complaint failed to

state a claim against them upon which relief could be granted.

The district court subsequently granted the motions of the

County and the County Board Defendants and dismissed the

case against all Defendants. J.A. 117-35.

Kendall noted an appeal on November 17, 2009. On

December 23, 2009, all parties participated in court-ordered

mediation, which led to Kendall’s voluntary dismissal of his

claims against the County effective January 15, 2010, but

which otherwise failed to resolve the dispute. This appeal fol-

lowed.

As explained below, we agree that the district court prop-

erly dismissed Kendall’s complaint. We therefore affirm the

district court’s dismissal.

4 KENDALL v. BALCERZAK

I.

On November 3, 2008, the Howard County Council passed

Council Bill 58, a bill that substantially increased the size of

a grocery store to be built in the Turf Valley community. Con-

cerned with the passage of this bill, Howard County Citizens

for Open Government ("HCCOG") sought to challenge this

bill by way of referendum, as permitted by Howard County

Charter Section 211. Specifically, Section 211 of the Howard

County Charter provides, in relevant part:

(a) Scope of the referendum

The people of Howard County reserve to them-

selves the power known as "the Referendum," by

petition to have submitted to the registered voters of

the County to approve or reject at the polls, any law

or part of any law of the Council. The referendum

petition . . . shall be sufficient if signed by five per

centum of the registered voters of the County, but in

any case not less than 1,500 or more than 5,000 sig-

natures shall be required. Such petition shall be filed

with the Board of Supervisors of Election of Howard

County within sixty days after the law is enacted. . . .

[I]f more than one-half, but less than the full number

of signatures required to complete any referendum

petition against such law be filed within sixty days

from the date it is enacted, the time for the law to

take effect and the time for filing the remainder of

signatures to complete the petition shall be extended

for an additional thirty days.

Howard County, Md., Charter § 211 (2008).

In Howard County, the signatures of 5,000 registered voters

are generally needed to refer a legislative act of the County

Council to referendum; in this case, the deadline for gathering

KENDALL v. BALCERZAK 5

a minimum of 2,500 signatures in order to secure an extension

of thirty days was January 3, 2009.

The Election Law Article of the Maryland Code sets forth

the requirements for a valid referendum petition in Maryland,

stating, in pertinent part:

(a) Generally— To sign a [referendum] petition, an

individual shall:

(1) sign the individual’s name as it appears

on the statewide voter registration list or the

individual’s surname of registration and at

least one full given name and the initials of

any other names; and

(2) include the following information,

printed or typed, in the spaces provided;

(i) the signer’s name as it was signed;

(ii) the signer’s address;

(iii) the date of signing; and

(iv) other information required by the

regulations adopted by the State

Board.

(b) Validation and counting— The signature of an

individual shall be validated and counted if:

(1) the requirements of subsection (a) of

this section have been satisfied....

Md. Code Ann., Election Law ("EL") § 6-203 (West 2010).

On December 19, 2008, the Court of Appeals of Maryland

issued a decision, Doe v. Montgomery Cnty Bd. of Elections,

6 KENDALL v. BALCERZAK

962 A.2d 342 (Md. 2008), interpreting EL § 6-203. The court

in Doe held:

The plain meaning of the words "shall " and "re-

quirements" in Section 6-203 reflect that the statu-

tory provisions require that the voter must sign his or

her name "as it appears on the statewide voter regis-

tration lists or the individual’s surname of registra-

tion and at least one full given name and the initials

of any other names"; the provisions are mandatory,

not suggestive.

Doe, 962 A.2d at 360 (quoting EL § 6-203).

On November 17 and 19, 2008, HCCOG filed requests

with the Board of Elections seeking an advance determination

regarding the sufficiency of the proposed referendum petition

language and signature sheet. On December 1, 2008, the

County Board determined that the proposed petition complied

with the requirements of state law, regulations, and the How-

ard County Charter and Code. Once approved, HCCOG began

to collect the necessary petition signatures on the approved

petition forms.

On December 30, 2008, twelve days after the Maryland

Court of Appeals decided Doe, HCCOG presented the County

Board with 3,301 signatures, which exceeded the 2,500 signa-

tures needed by January 3, 2009 in order to obtain the

Charter-authorized thirty-day extension to secure the remain-

ing signatures. See Howard County, Md. Charter § 211

(2008).

On January 22, 2009, the County Board validated and certi-

fied 2,603 of the signatures that HCCOG had submitted, and

gave them an additional thirty days, until February 4, 2009,

to finish collecting the required 5,000 signatures. On February

3, 2009, HCCOG presented the County Board with an addi-

tional 6,079 signatures.

KENDALL v. BALCERZAK 7

On February 12, 2009, the County Board issued a letter

stating that it had stopped reviewing the additional signatures

due to a pending legal challenge, filed by a third party, on

February 4, 2009, which was unrelated to the Board’s signa-

ture validation methods. On March 11, 2009, counsel for the

County Board sent an email to several persons involved in the

referendum process requesting their presence at a meeting of

the County Board the following evening.

At the March 12, 2009 meeting of the County Board, the

Board’s president, Ms. Balcerzak, announced that the Board

was reversing its January 22, 2009 decision to certify the first

2,603 signatures on the petition based upon the decision of the

Court of Appeals of Maryland in Doe. In reliance on Doe, the

Board conducted a second review of a statistically valid sam-

ple of 1,216 signatures from the initial 3,301 submitted. After

invalidating 1,052 signatures, a rejection rate of eighty-seven

percent, the Board concluded that HCCOG failed to submit

the requisite number of valid signatures, and would therefore

be denied an extension of time to submit the 5,000 total signa-

tures required to place the referendum on the ballot. As Nor-

daas explained in the final County Board determination letter

to HCCOG’s counsel dated March 12, 2009:

[T]he Board of Elections found, after review of each

signature on submitted local referendum petitions,

that it did not validate each signature in accordance

with the mandate set forth in Doe which requires an

individual to sign his/her name as it appears on the

statewide voter registration or place his/her surname

of registration and at least one full given name and

the initials of any other names.

J.A. 45.

Nordaas stated that the Board’s decision to re-verify the sig-

natures in the HCCOG’s petition was based on March 11,

2009 advice from the Maryland Attorney General’s office. Id.

8 KENDALL v. BALCERZAK

Four days after the March 12, 2009 County Board meeting,

Kendall filed his initial complaint in this action, in the United

States District for the District of Maryland. On March 30,

2009, he filed an amended complaint, which is the operative

pleading in this action.

In Count One of the First Amended Complaint, Kendall

claimed that the actions of Defendants "in interpreting the sig-

nature requirements as they did," totally and completely dis-

enfranchised Plaintiff and over 9,300 other signatories of the

petition as well as the entire Howard County electorate of

their right to take Bill 58 to referendum and vote. Kendall

claimed that Defendants violated his (a) "First Amendment

right to express his beliefs by vote, to associate as these rights

are made applicable to Howard County by the Fourteenth

Amendment to the United States Constitution"; (b) "right to

substantive due process and equal protection as established by

the Fourteenth Amendment to the United States Constitution

. . ."; and (c) "right to petition the government for redress of

grievances as protected under the First and Fourteenth

Amendments to the United States Constitution." J.A. 12. Ken-

dall further pled that the requirement that signatures on a ref-

erendum petition match exactly the names as written on the

voter registration card is "overbroad" and represents an unrea-

sonable burden on Plaintiff’s rights to vote, petition, associate

and engage in politically protected speech. J.A. 13.

In Count Two, Kendall claimed that he was denied equal

protection and procedural and substantive due process. Spe-

cifically, Kendall argued that the procedural due process

offered by the County Board was "insufficient" in that no

notice was given of the reversal of the Board’s decision and

there was no ability to challenge that decision before it took

effect. J.A. 17. Kendall’s substantive due process argument

appears to be that the process was "unfair" in that it applied

"an unconstitutional law and a non-precedential portion of a

Court of Appeals decision to achieve a manifestly unfair

KENDALL v. BALCERZAK 9

result" which denied Plaintiff his First and Fourteenth

Amendment rights.

Count Three ("Violations of Constitutional Rights Pro-

tected Under 42 U.S.C. § 1983") appears to be nothing more

than Plaintiff’s rearticulation of the alleged violations of his

First and Fourteenth Amendment rights.

All Defendants asserted, in response to Kendall’s amended

complaint, that it failed to state a claim upon which relief

could be granted. The State Defendants did so by affirmative

defense in their answer, whereas the County and the County

Board Defendants did so by separate motions to dismiss.

II.

On October 20, 2009, the district court issued an order dis-

missing Kendall’s amended complaint as against all defen-

dants pursuant to Federal Rule of Civil Procedure 12(b)(6).

The court initially addressed the first and third counts, which

together asserted violations of 42 U.S.C. § 1983 in the form

of alleged denials of Kendall’s First and Fourteenth Amend-

ment rights. The court reasoned that a plaintiff pursuing a

Section 1983 claim must first plead that the defendants

unlawfully deprived him of a right secured by the Constitu-

tion and laws of the United States. J.A. 122. The court ruled

that federal law does secure, in a limited sense, the right to

referendum. J.A. 123-25. Whereas the right to vote is funda-

mental, the court reasoned, the State-conferred privilege to

undertake ballot initiatives and referenda is not.* J.A. 123-24.

Thus, while the right to referendum enjoys some protection

*"The term ‘initiative’ refers to a political procedure whereby citizens

may propose laws and enact or reject the same at the polls." Wright v.

Mahan, 478 F. Supp. 468, 469 n.1 (E.D. Va. 1979), aff’d without op., 620

F.2d 296 (4th Cir. 1980). "The term ‘referendum’ refers to a procedure

whereby citizens may approve or reject at the polls any act of the legisla-

tive body, in some instances only if specifically referred to the people by

the legislature." Id.

10 KENDALL v. BALCERZAK

under the First Amendment as applied to the States through

the Fourteenth Amendment, the right also is permissibly sub-

ject to non-discriminatory, content-neutral limitations. J.A.

126. The court concluded that EL § 6-203, as construed in

Doe and applied to Kendall, contained only non-

discriminatory, content-neutral regulations, and that the stat-

ute imposed no unconstitutional restraints on Kendall’s ability

to petition for referendum. J.A. 127-28.

In addressing counts one and three of Kendall’s amended

complaint, the district court found instructive the analysis of

the Sixth Circuit in Taxpayers United for Assessment Cuts v.

Austin, 994 F.2d 291 (6th Cir. 1993). In that case, voters

whose initiative petition was denied certification for submis-

sion after a large number of signatures were disqualified by

the Board of State Canvassers due to statutory deficiencies

filed an action under 42 U.S.C. § 1983 alleging that the state

had deprived them of their First and Fourteenth Amendment

rights. Id. at 293-94. The court first addressed the plaintiffs’

contention that Michigan’s procedures denied them the right

to vote by excluding the signatures of some registered voters

only because "technical checks" showed a failure to comply

with Michigan initiative law. Id. at 296. An example of a sig-

nature eliminated by the procedures was a signature which

was not accompanied, as required, by the signer’s complete

home address. Id. at 293. The court concluded that the plain-

tiffs had not demonstrated a violation of the right to vote as

the court could identify no decision of the Supreme Court or

a lower federal court holding that signing a petition to initiate

legislation is entitled to the same protection as exercising the

right to vote. Id.

The court then concluded that the plaintiffs’ rights to free

speech and political association also had not been violated.

"Because the right to initiate legislation is a wholly state-

created right, we believe that the state may constitutionally

place nondiscriminatory, content-neutral limitations on the

plaintiffs’ ability to initiate legislation." Id. at 297. The Sixth

KENDALL v. BALCERZAK 11

Circuit Court of Appeals found that the challenged Michigan

procedure "does nothing more than impose nondiscrimina-

tory, content-neutral restrictions on the plaintiffs’ ability to

use the initiative procedure that serve Michigan’s interest in

maintaining the integrity of its initiative process." Id.

The district court relied on the analysis in Taxpayers

United to find that "[s]imilarly, here, for the same reasons

cited by the [Taxpayers United] court, Plaintiff has not dem-

onstrated a violation of the right to vote. As for Plaintiff’s

claims that his right to engage in politically protected speech,

right to petition, and right to associate were denied, I must

determine whether the challenged statute, as applied to Plain-

tiff, imposes anything other than ‘nondiscriminatory, content-

neutral limitations’ on Plaintiff’s right to referendum. . . . I

find that Section 6-203, as interpreted by the Maryland Court

of Appeals, is, in fact, non-discriminatory and content-

neutral." J.A. 125-27.

After concluding that dismissal was appropriate as to Ken-

dall’s First Amendment, Fourteenth Amendment, and Section

1983 claims, the court also found dismissal appropriate as to

his remaining claims that the Defendants had denied him

equal protection of the laws, substantive due process, and pro-

cedural due process. The court found no denial of equal pro-

tection, because EL § 6-203 relies on no suspect

classification, and a rational basis exists for the statute’s dis-

tinction between validatable and invalidatable referendum

petition signatures. J.A. 128-29. The court also found no vio-

lation of substantive due process because, again, no funda-

mental right was at stake. J.A. 129. Finally, the court found

that the procedural protections that the Maryland statutory

scheme affords, including, in particular, the right to petition

for judicial review from adverse action by the local election

board, satisfied Kendall’s right to procedural due process. J.A.

130-33.

12 KENDALL v. BALCERZAK

III.

We now review whether the district court properly dis-

missed Kendall’s amended complaint and correctly ruled that

EL § 6-203, as interpreted by Doe, imposes constitutionally

permissible limitations on the right to referendum. "The stan-

dard of review for dismissal pursuant to Rule 12(b)(6) is de

novo." Robinson v. Am. Honda Motor Corp., Inc., 551 F.3d

218, 222 (4th Cir. 2009). In addressing the matters on which

a district court rules, the usual appellate standard governing

motions to dismiss considers questions of law de novo and

construes the evidence in the light most favorable to the non-

moving party, applying the same criteria that bound the lower

court. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th

Cir. 1993); EEOC v. Seafarers Intern. Union, 394 F.3d 197

(4th Cir. 2005). To survive a rule 12(b)(6) motion to dismiss,

the facts alleged "must be enough to raise a right to relief

above the speculative level" and must provide "enough facts

to state a claim to relief that is plausible on its face." Robin-

son, 551 F.3d at 222 (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544 (2007)).

IV.

We find that the district court correctly ruled that EL § 6-

203 does not violate Kendall’s right to freely associate, his

right to petition the government, his right to vote, or his First

Amendment right to engage in "politically protected speech."

To begin with, Kendall argues that the right to referendum

implicates the right to vote. We agree with the district court’s

conclusion that there is no fundamental right to initiate legis-

lation as there is a fundamental right to vote. Kendall argues

that the district court erred in finding that the right of refer-

enda does not implicate the right to vote and argues that this

case implicates the right to vote and that such right is violated

in this case.

KENDALL v. BALCERZAK 13

This case is not a right to vote case. We find the case of

Taxpayers United, 994 F.2d 291, 296 (6th Cir. 1993), to be

instructive on this issue. As summarized above, in Taxpayers

United, the Sixth Circuit Court of Appeals held that Michi-

gan’s procedures for checking signatures on initiative peti-

tions did not deny voters’ right to vote, as signing a petition

to initiate legislation was not entitled to the same protection

as exercising the right to vote. As in Taxpayers United, in this

case, Kendall does not cite to us nor does our research iden-

tify any decision of the Supreme Court holding that signing

a petition to initiate legislation is entitled to the same protec-

tion as exercising the right to vote.

The basis for distinguishing the right to vote in a represen-

tative election, on the one hand, from the right to petition for

referendum and initiative, on the other, is a sound one. The

referendum is a form of direct democracy and is not com-

pelled by the Federal Constitution. See Doe v. Reed, 130 S.Ct.

2811, 2817 (2010) (Sotomayor, J., concurring); Kelly v.

Macon-Bibb Cnty. Bd. of Elections, 608 F. Supp. 1036, 1038

(M.D. Ga. 1985). In Kelly, county residents brought an action

challenging the constitutionality of a county board of elec-

tion’s construction of a subsection of a Georgia statute allow-

ing a political subdivision to remove itself, by local

referendum, from a requirement of having its public water

supply fluoridated so as to require a petition to call a referen-

dum to be signed by ten percent of the registered voters who

voted in the last general election. Kelly, 608 F. Supp. at 1038.

The District Court for the Middle District of Georgia held that

this case was "not a ‘right to vote’ case; referenda, unlike gen-

eral elections for a representative form of government, are not

constitutionally compelled." Id. The Kelly court went on to

find that the petition requirement did not violate the Four-

teenth Amendment given the permissible state purpose of

ensuring that the expense of a local referendum would not be

invoked absent legitimate concern of a substantial number of

concerned citizens. Id.

14 KENDALL v. BALCERZAK

Finally, in Howlette v. City of Richmond, 580 F.2d 704 (4th

Cir. 1978), we affirmed a district court’s ruling that an ordi-

nance provision requiring each signature of a qualified voter

on a petition for referendum to be verified before a notary was

valid and constitutionally permissible. In that case, "the sole

question for decision [was] whether enforcement of the City

Charter requirement that each signature on a petition seeking

a referendum be individually notarized is violative of Federal

statutory or constitutional law." Howlette v. City of Richmond,

485 F. Supp. 17, 22 (E.D. Va. 1978). In deciding whether the

petition requirement violated constitutional law, the district

court held that "[a]lthough the court agrees that the right to

vote may be characterized as fundamental, the Supreme Court

has never held that the right to obtain or vote in a referendum

is fundamental." Id. at 27.

From the cases discussed above, we affirm the district

court’s finding that this case does not implicate the fundamen-

tal right to vote.

The authorities on which Kendall relies do not support the

proposition that limitations on referenda implicate fundamen-

tal rights. See Kendall’s Opening Br. at 16. Of the cases Ken-

dall cites, only two—Stone v. City of Prescott, 173 F.3d 1172

(9th cir.), cert. denied, 528 U.S. 870 (1999), and City of Phoe-

nix, Az. v. Kolodziejski, 399 U.S. 204 (1970)—even mention

the referendum right. The court in Stone ruled against those

claiming an unconstitutional violation of their right to referen-

dum, because they "identified no federal or state right that the

[local government] violated." 173 F.3d at 1176. The Court in

City of Phoenix held invalid the per se exclusion of all non-

property owners from voting in a referendum concerning a

bond issue. 399 U.S. at 213. That holding, which addressed

a problem of complete disenfranchisement, does not apply to

EL § 6-203, which addresses the verification of voter identity.

Additionally, we decline to adopt Kendall’s reliance on the

Ninth Circuit’s decision in Lemons v. Bradbury, 538 F.3d

KENDALL v. BALCERZAK 15

1098 (9th Cir. 2008). In Lemons, the Ninth Circuit concluded

that state regulations on the initiative and referendum process

"implicate the fundamental right to vote." Id. at 1102. There,

the Ninth Circuit reasoned that both the initiative and referen-

dum powers serve as "basic instruments of democratic gov-

ernment," so both implicated the plaintiffs’ fundamental right

to vote. Id. at 1103. The court proceeded to find that the regu-

lations at issue would not be subjected to strict scrutiny, even

though they implicated a fundamental right. Id. We find the

reasoning of the Lemons court to be unpersuasive. As stated

by the district judge:

I am more persuaded by the reasoning of an earlier

Ninth Circuit case, Stone v. City of Prescott, 173

F.3d 1172 (9th Cir. 1999), in which the court ana-

lyzed two Supreme Court cases addressing First

Amendment rights in the context of referenda, Meyer

v. Grant, 486 U.S. 414 (1988) and Buckley v. Am.

Const. law Found., Inc., 525 U.S. 182 (1999). . . .

Meyer and Buckley held that the First Amendment

protects political speech incident to an initiative

campaign because it protects the exercise of the

state-created right of referendum. The state-created

right is not, however, in and of itself a fundamental

right.

J.A. 125-26.

The district court correctly recognized that this case does not

implicate the right to vote. However, the district court also

correctly recognized that where a state affords its citizens the

privilege to pursue ballot initiatives or referenda, those privi-

leges do enjoy some measure of constitutional protection. See

Taxpayers United, 994 F.2d at 295 ("[A]lthough the Constitu-

tion does not require a state to create an initiative procedure,

if it creates such a procedure, the state cannot place restric-

tions on its use that violate the federal Constitituion. . . .").

16 KENDALL v. BALCERZAK

Therefore, after determining that Kendall’s right to vote is

not implicated in this case, we must then consider Kendall’s

other claims that his right to engage in politically protected

speech, right to petition, and right to associate were denied.

As to that analysis, a State may establish non-discriminatory

and content-neutral limitations on any referendum or initiative

procedure. See Burdick v. Takushi, 504 U.S. 428 (1992)

("[W]hen a state election law provision imposes only reason-

able, nondiscriminatory restrictions upon the First and Four-

teenth Amendment rights of voters, the State’s important

regulatory interests are generally sufficient to justify the

restrictions."); see also Doe v. Reed, 130 S. Ct. 2811 (2010)

(Sotomayor, J., concurring)("States enjoy considerable lee-

way to . . . specify the requirements for obtaining ballot

access (e.g., the number of signatures required, the time for

submission, and the method of verification)); Taxpayers

United, 994 F.2d at 297 ("We also conclude that the plain-

tiffs’ rights to free speech and political association have not

been impinged. Because the right to initiate legislation is a

wholly state-created right, we believe that the state may con-

stitutionally place nondiscriminatory, content-neutral limita-

tions on the plaintiffs’ ability to initiate legislation."); Hoyle

v. Priest, 265 F.3d 699, 704 (8th Cir. 2001) ("the Arkansas

law is content neutral and merely regulates who qualifies to

legally sign an initiative petition, a restriction which does not

violate the First Amendment.").

Therefore, when analyzing state-created restrictions that are

both content neutral and nondiscriminatory, the State’s impor-

tant regulatory interests are generally sufficient to justify the

restrictions. We do not use a higher level of scrutiny as we do

in some First Amendment cases. As Justice Sotomayor

explained in her concurrence in Doe, "requiring petition sign-

ers to be registered voters or to use their real names no doubt

limits the ability or willingness of some individuals to under-

take the expressive act of signing a petition. Regulations of

this nature, however, stand ‘a step removed from the commu-

nicative aspect of petitioning,’ and the ability of States to

KENDALL v. BALCERZAK 17

impose them can scarcely be doubted." Doe, 130 S.Ct. at

2827 (citing Buckley v. Am. Constitutional Law Found., Inc.,

525 U.S. 182 (1999; McIntyre v. Ohio Elections Comm’n, 514

U.S. 334, 345 (1995) (contrasting measures to "control the

mechanics of the electoral process" with the "regulation of

pure speech")). Because content neutral and nondiscrimina-

tory regulations on referendums are a "step removed from the

communicative aspect of petitioning," "[i]t is by no means

necessary for a State to prove that such ‘reasonable, nondis-

criminatory restrictions’ are narrowly tailored to its interests."

Id. at 2828 (citing Anderson v. Celebrezze, 460 U.S. 780, 788

(1983)). In Doe, the Supreme Court held that the State of

Washington’s requirement making referendum petitions avail-

able in response to requests under the State’s Public Records

Act did not violate individual signers of the referendum’s

First Amendment rights of freedom of speech and association

when analyzed under an intermediate or "exacting" scrutiny

standard. Id. at 2821. The Court held that the standard appli-

cable to First Amendment challenges to disclosure require-

ments in the electoral context requires a substantial relation

between the disclosure requirement and a sufficiently impor-

tant government interest. Id. at 2818. Therefore, as set forth

in Doe, challenges to content neutral and nondiscriminatory

regulations on the referendum process are not analyzed under

a strict scrutiny standard. In this case, we must find a substan-

tial relation between the requirements of EL § 6-203 and a

sufficiently important government interest.

We affirm the district court’s finding that EL § 6-203 is

content neutral and non-discriminatory and that the State’s

important regulatory interests are sufficient to justify the

restrictions. As stated above, EL § 6-203 requires that:

(a) Generally— To sign a [referendum] petition, an

individual shall:

(1) sign the individual’s name as it appears

on the statewide voter registration list or the

18 KENDALL v. BALCERZAK

individual’s surname of registration and at

least one full given name and the initials of

any other names; and

(2) include the following information,

printed or typed, in the spaces provided;

(i) the signer’s name as it was signed;

(ii) the signer’s address;

(iii) the date of signing; and

(iv) other information required by the

regulations adopted by the State

Board.

Therefore, the statute affords the signer four options in sign-

ing the petition. The signer can: (1) sign his/her name on the

petition as it appears on his/her voter registration card; (2)

sign his/her full first, middle and last names; (3) sign his/her

full first name, middle initial, and last name; or (4) sign

his/her first initial, and full middle and last names. A signa-

ture in any of those formats is valid for purposes of being a

qualified signature on the petition.

This method is both content-neutral and non-

discriminatory. The signature requirement is applied indis-

criminately to all petition signers. And, the signature require-

ment is reasonably related to the purpose of detecting

fraudulent or otherwise improper signatures. The signature

requirement helps to make sure that false signatures are not

put on the petition and that unregistered or ineligible voters do

not sign it. As stated by the State Defendants, "the require-

ment discourages fraud by supplying a workably complete

signature exemplar that those officials validating the signa-

tures can use to confirm that the signer actually is who he or

she claims to be." Appellees’ Br. at 19. Therefore, because the

KENDALL v. BALCERZAK 19

requirements of EL § 6-203 are not discriminatory or targeted

at the content or purpose of any particular speech, expression,

or assembly, the statutory requirements are constitutionally

permissible.

This Court previously has rejected challenges comparable

to Kendall’s. In Howlette v. City of Richmond, Va., 580 F.2d

704 (4th Cir. 1978) (per curiam), for example, the Court

upheld the constitutionality of a municipal requirement that

each person signing a referendum petition must swear to

being a qualified voter and have his or her oath and signature

individually notarized. Id. at 705. In holding that requirement

constitutional, this Court adopted by reference the reasoning

of the district court, which is instructive as applied to this

case.

The petitioners in Howlette argued that the signature

requirements constituted meaningless and discriminatory

technicalities. Howlette, 485 F. Supp. at 22. The district court

explained:

[T]he individual notarization requirement affords

material protection to each and every citizen of the

City by assuring that the City will not be forced to

undertake the substantial preparation and expense of

conducting a referendum unless the requisite number

of qualified City voters have actually signed the peti-

tions, and have done so only after exercising due

deliberation. In short, the individual notarization

requirement protects the City and its citizens against

both fraud and caprice.

Id.

The requirements of 6-203 afford similar protections to the

State of Maryland, but are far less burdensome, requiring

only, in essence, some ascertainable correlation between the

signer’s signature and the name he or she used when register-

20 KENDALL v. BALCERZAK

ing to vote. The Maryland procedures in this case do nothing

more than impose nondiscriminatory, content-neutral restric-

tions on the plaintiffs’ ability to use the referendum procedure

that serve Maryland’s interest in maintaining the integrity of

its referendum process. Our result might be different if Ken-

dall was challenging a restriction on his ability to communi-

cate with other voters about proposed legislation, or if he

alleged he was being treated differently than other groups

seeking to obtain a referendum on legislation. But, in the

instant case, it is constitutionally permissible for Maryland to

condition the use of its referendum procedure on compliance

with content-neutral, nondiscriminatory regulations that are,

as here, reasonably related to the purpose of administering an

honest and fair referendum procedure. Accordingly, we con-

clude that the restrictions of EL § 6-203 do not violate Ken-

dall’s right to freely associate, his right to petition the

government, his right to vote, or his first amendment right to

engage in "politically protected speech."

V.

The second count of Kendall’s amended complaint asserted

that all the Defendants had denied him due process and equal

protection in violation of the Fourteenth Amendment of the

United States Constitution. The district court found that Ken-

dall had not demonstrated that the County board violated his

right to equal protection. In doing so, the court held that strict

scrutiny did not apply because no fundamental right is

involved (i.e., the right to referendum does not implicate the

fundamental right to vote) and because the law does not dis-

criminate against a suspect class. "Although Defendants’

application of Section 6-203 to Plaintiff’s signature (and oth-

ers) on the HCCOG petition did distinguish between individu-

als whose signatures were thrown out because they did not

meet the requirements of Section 6-203 and those whose sig-

natures were accepted because they did meet said require-

ments, Plaintiff has not demonstrated that he, as a result of

being an individual whose signature was not in compliance,

KENDALL v. BALCERZAK 21

was a member of a suspect class." J.A. 128-29. The court

stated that, unless the state regulation "involves a fundamental

right or a suspect class, it is presumed to be valid and will be

sustained ‘if there is a rational relationship between the dis-

parity of treatment and some legitimate government pur-

pose.’" J.A. 128 (quoting Veney v. Wyche, 293 F.3d 726, 731

(4th Cir. 2002)). Thus, the district court concluded that Defen-

dants’ actions in applying Section 6-203 to Kendall’s signa-

ture were valid in that there is a rational relationship between

separating those signatures which meet Section 6-203’s

requirements from those which do not and a legitimate gov-

ernmental purpose of detecting fraudulent or otherwise

improper signatures upon a referendum petition.

The district court correctly held that Defendants did not

violate Kendall’s right to equal protection. As analyzed by the

district court and discussed above, the right to referenda does

not implicate the fundamental right to vote. Further, Kendall

has not demonstrated that he was a member of a suspect class.

Distinguishing between those who signed the petition in

accordance with EL § 6-203 and those who did not is not a

disparity of treatment against a suspect class. See Taxpayers

United, 994 F.2d at 297 (plaintiffs pursuing ballot initiative

"have not challenged they are members of a suspect class");

Kelly, 608 F. Supp. at 1039 (statutory requirements concern-

ing referendum signatures "do not involve . . . suspect classifi-

cations"). Therefore, as no fundamental right is implicated

and as there is no presence of discrimination against a suspect

class, strict scrutiny is not appropriate in this case and the

Defendants’ decision to verify some signatures and not others

in accordance with § 6-203 will pass muster if it is reasonably

related to a legitimate government interest. Taxpayers United,

994 F.2d at 297 (citing Moore v. City of E. Cleveland, 431

U.S. 494 (1971)).

In this case, the district court correctly found that there is

a rational relationship between separating those signatures

which meet 6-203’s requirements from those which do not

22 KENDALL v. BALCERZAK

and that there is a legitimate governmental purpose of detect-

ing fraudulent or otherwise improper signatures upon a refer-

endum petition. States have a legitimate interest in

safeguarding the fairness and honesty of all elections and

have an interest in ensuring that the State and affected local

jurisdictions should not incur the considerable administrative

responsibilities attending a referendum unless there is a

proven interest by a reasonably large segment of the elector-

ate. See Burdick, 504 U.S. at 433 ("Common sense, as well

as constitutional law, compels the conclusion that government

must play an active role in structuring elections . . . if they are

to be fair and honest and if some sort of order, rather than

chaos, is to accompany the democratic process."); Taxpayers

United, 924 F.2d at 297 ("[A] state has a strong interest in

ensuring that its elections are run fairly and honestly."); How-

lette, 485 F. Supp. at 28 (recognizing local government’s

"compelling interest in preventing electoral fraud" and in "dis-

couraging unnecessary or capricious referenda"). Moreover,

since Kendall has not alleged that any fundamental right or

suspect classification is involved, it is irrelevant that Mary-

land could have chosen a better method of protecting its inter-

est in guaranteeing an honest referendum system. See

Taxpayers United, 994 F.2d at 298 (citing Schweiker v. Wil-

son, 450 U.S. 221 (1981) ("The equal protection obligation

. . . is not an obligation to provide the best governance possi-

ble.")).

Therefore, because the requirements of EL § 6-203 pass a

rational basis review, the district court correctly concluded

that Kendall’s right to equal protection has not been denied.

The district court also correctly found that Kendall was not

denied his right to substantive due process. We have noted

that "while liberty interests entitled to procedural due process

protection may be created by state law as well as the Constitu-

tion itself, those entitled to substantive due process protection

(whatever the procedures afforded) are ‘created only by the

Constitution.’" Hawkins v. Freeman, 195 F.3d 732, 748 (4th

KENDALL v. BALCERZAK 23

Cir. 1999) (quoting Regents of Univ. of Mich. v. Ewing, 474

U.S. 214, 229 (1985)). As discussed above, application of EL

§ 6-203 to the referendum process did not violate a fundamen-

tal right created by the Constitution—the right to referendum

does not implicate the right to vote and is a right created by

the State, not by the Constitution. Therefore, the district court

correctly found that Kendall had failed to state a claim that his

right to substantive due process has been violated.

Finally, the district court found that Kendall failed to state

a claim that his right to procedural due process had been vio-

lated. Kendall challenges the procedures used by the County

Board in re-verifying the 2,603 signatures on the HCCOG

petition that had been initially validated and certified on Janu-

ary 22, 2009. In order for Kendall to succeed on his proce-

dural due process claim, he must show "(1) a cognizable

liberty or property interest; (2) the deprivation of that interest

by some form of state action; and (3) that the procedures

employed were constitutionally inadequate." Iota Xi Chapter

of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th

Cir. 2009). Here, Kendall possesses a state-created right to

petition legislation to referendum, and that right was deprived

when the County Board invalidated his signature on the

HCCOG petition. Therefore, the question is whether the pro-

cedures employed by the County Board were constitutionally

inadequate. Procedural due process provides merely "a guar-

antee of fair procedures—typically notice and an opportunity

to be heard." Wolf v. Fauquier County Bd. of Supervisors, 555

F.3d 311, 323 (4th Cir. 2009).

In this case, an email was sent on the evening of March 11,

2009 to several persons involved in the referendum process

stating that the County Board "desires you to be present

tomorrow evening at 5:30 PM at its meeting." At the meeting

on March 12, 2009, Balcerzak stated that the County Board

was reversing its January 22, 2009 decision certifying the first

2,603 signatures. Nordaas explained that the County Board

found, after review of each signature on the petition, that it

24 KENDALL v. BALCERZAK

had not validated each signature in accordance with the man-

date set forth in Doe, and that upon advice from the Attorney

General’s office, the County Board re-verified the signatures

on the petition submitted on December 30, 2008, and found

that the total number of signatures fell below the 2,500 signa-

tures necessary to qualify HCCOG for a thirty-day extension

to secure the additional signatures. According to the Board, a

written decision was presented at the meeting where members

of HCCOG spoke and the decision of the Board was

explained.

The district court found that the County Board’s actions

appear to have complied with the notice requirement of Mary-

land election law. Maryland law provides that once the local

election authority has verified and counted the signatures sub-

mitted on a petition for referendum, the chief election official

shall:

(1) determine whether the validated signatures con-

tained in the petition are sufficient to satisfy all

requirements established by law relating to the num-

ber and geographical distribution of signatures; and

(2) . . . determine whether the petition has satisfied

all other requirements established by law for that

petition and immediately notify the sponsor of that

determination, including any specific deficiencies

found.

Md. Code, E.L. § 6-208(a).

State law further provides that within two business days of a

determination that a petition is deficient, the chief election

official of the election authority must notify the petition’s

sponsor of the determination. Md. Code, E.L. § 6-210(b). In

this case, the district court noted that it appears that members

of the HCCOG received notice of HCBE’s final determination

KENDALL v. BALCERZAK 25

regarding its petition on March 12, 2009, the same date as that

provided on the written decision.

Maryland law does not require, nor did the County Board

provide, notice to anyone associated with HCCOG that it was

considering invalidating signatures on the HCCOG petition

prior to making that determination. But, as the district court

found, the fact that the County Board failed to provide notice

to Kendall that his signature was being invalidated does not

give rise to a due process violation. As the Seventh Circuit

reasoned in Protect Marriage Illinois v. Orr, 463 F.3d 604,

608 (7th Cir. 2006):

[W]hat is required in the name of due process

depends, as the Supreme Court made clear in Mat-

thews v. Eldridge, 424 U.S. 319, 335 (1976), on the

costs as well as the benefits of process. The cost of

allowing tens of thousands of people to demand a

hearing on the validity of their signatures would be

disproportionate to the benefits, which would be

slight because the state allows the organization

orchestrating a campaign to put an advisory question

on the ballot, in this case Protect Marriage Illinois,

to challenge the disqualification of any petitions.

We agree with the district court that, in this case, as in Pro-

tect Marriage Illinois, the costs of allowing thousands of peo-

ple to demand a hearing on the validity of their signatures

would be disproportionate to the benefits. Moreover, Mary-

land provides a procedure by which "a person aggrieved by

a determination" that a petition is deficient may seek judicial

review in the circuit court for the county in which the petition

is filed. Md. Code, E.L. § 6-209(a)(1).

Apparently, HCCOG timely filed a Petition for Judicial

Review of the County Board’s final determination in the Cir-

cuit Court for Howard County seeking, in part, a declaratory

judgment that the final determination be declared invalid.

26 KENDALL v. BALCERZAK

Kendall, along with two other individuals, also filed a Com-

plaint for Declaratory Judgment and Other Appropriate Relief

in the Circuit Court for Howard County. According to Ken-

dall, that case was unrelated to this one, and Kendall voluntar-

ily dismissed that state court action after the County Board

filed a motion to dismiss.

Crediting Kendall’s assertion that the lawsuit he filed was

unrelated to this once, then it appears Kendall did not file any

challenge to the County Board’s final determination in state

court. For whatever reasons, Kendall chose not to pursue that

course. As the Maryland Court of Appeals noted in Doe, a

registered voter may bring the action for judicial review when

a determination is made that results in aggrievement. Doe,

962 A.2d at 353.

We find that there was adequate process available to Ken-

dall to provide an opportunity to be heard. "[A] procedural

due process violation cannot have occurred when the govern-

mental actor provides apparently adequate procedural reme-

dies and the plaintiff has not availed himself of those

remedies." Elsmere Park Club, L.P. v. Town of Elsmere, 542

F.3d 412, 423 (3rd Cir.2008).

Therefore, as the County Board provided adequate notice

under the circumstances of the decision to invalidate the peti-

tion signatures and as there were adequate opportunities for

review of the invalidation of Kendall’s petition signature in

state court, the district court was correct in finding that there

was no violation of Kendall’s right to procedural due process.

VI.

Therefore, based on the foregoing, we affirm the district

court’s dismissal of Kendall’s amended complaint for failure

to state a claim upon which relief can be granted. Kendall has

failed to state a claim for a denial of any of his constitutional

KENDALL v. BALCERZAK 27

rights, and therefore his § 1983 claim was properly dismissed

by the district court.

AFFIRMED