Sen. Ben Kramer has decided to take action regarding the Planning Board. Beyond filing a bill to study removing its functions back to the county, he has proposed the Montgomery County Planning Trust and Transparency Act of 2023. It would take major steps towards ethics compliance and allow the county executive to appoint the Board Chair.
This Act’s summary description:
FOR the purpose of altering the appointment process, salary authorization process, and terms for commissioners appointed to the Maryland–National Capital Park and Planning Commission from Montgomery County; requiring the County Executive of Montgomery County to appoint one member of the Commission who shall serve as the chair or vice chair of the Commission and chair of the Montgomery County Planning Board; requiring certain public hearings and acceptance of public testimony on each appointment to the Commission from Montgomery County; prohibiting the chair of the Board from engaging in certain employment; authorizing and establishing procedures for the Montgomery County Executive or Montgomery County Council to discipline a commissioner from Montgomery County under certain circumstances; prohibiting a commissioner from Montgomery County from engaging in certain political activities while the commissioner serves on the Commission; prohibiting a former commissioner from Montgomery County from working for certain compensation for a certain period of time after the commissioner leaves office; requiring a commissioner from Montgomery County to complete certain training at certain times; requiring the Board to publish agendas of open meetings along with certain other materials on its website at certain times; requiring the Board to approve meeting minutes in a certain manner under certain circumstances; and generally relating to requirements for the members of the Maryland–National Capital Park and Planning Commission from Montgomery County and meetings of the Montgomery County Planning Board.
After losing by 77 votes four years ago, David Blair came up 32 votes short against Marc Elrich this time. Some speculated Blair would go to the courts to try and see if he could get more ballots counted, but he has sensibly chosen not to go that route. It would almost certainly have been a losing battle legally and in the public eye.
Here is the press release:
Rockville, Md., August 24, 2022 — David Blair released the following statement on the 2022 Montgomery County Executive Democratic primary election:
“Today, the Board of Elections certified the recount results of the primary election and my bid for County Executive came up 32 votes short. Earlier today, I called Marc Elrich to wish him the best over the next four years.
While we didn’t win, no doubt we pushed the conversation forward in key areas such as early childhood education, career readiness, environmental progress, affordable housing, economic development, public safety and much, much more. I wish a heartfelt thank you to our campaign team, our volunteers, and our many, many supporters. Their energy, dedication, and vision for a better Montgomery County has been truly inspiring.
I also want to acknowledge and thank the Board of Elections staff and volunteers who ensured every vote was counted and counted accurately.
While I may have come in second place in the primary, I’m blessed in life with an incredible wife, family and friends that I adore, more success than I deserve, and a deep desire to give back to the community that I call home. No doubt whatever I do next will be focused on improving the quality of life for those who call Montgomery County home.”
The Board of Elections has reported the recount results from the early vote as well as all but one of the election districts. David Blair has gained two votes and Marc Elrich has gained one vote. This is bad news for Blair as these were the two sections of the recount most likely to benefit him through closer examination of overvotes—ballots that contained more than one vote for county executive.
In the initial count, these ballots from the early and Election Day vote are run through the counting machine without closer examination. Overvotes are tallied but counted as invalid. But once in a while, closer examination can reveal that the intent of the voter is clear despite an overvote. The ballot may have an “x” through the vote for one candidate that indicates that the voter didn’t mean to vote for that person.
These sorts of ballots would have allowed Al Gore to win the 2000 presidential election.
But changes in how we vote since then have reduced the number of these ballots. During early and Election Day voting in Montgomery, voters must feed their ballots into a machine that gives voters a chance to correct mistakes if there are any overvotes. Some voters cast their ballots on machines (that create a paper record and ballot) that do not allow overvotes. The result is that fewer early and Election Day ballots contain these sorts of problems, which is why only three ballots changed..
The potential for these problems is far greater in mail-in ballots but these ballots were already assessed as they were counted. The Board of Elections has already ruled on any ballots with overvotes, following the extremely detailed set of guidelines from the state. Even though these ballots almost certainly contain a higher share of overvotes, the potential for change is quite low.
The addition of the newly discovered 102 provisional ballots (not all Democratic) has cut County Executive Marc Elrich’s lead to 35 votes. The Board is certifying the election today. David Blair will have until Tuesday to select the type of recount he wants.
Despite the very tight margin, I expect little change in the final tally.
The Board of Elections has found an additional 102 provisional ballots that it failed to count—enough to change the outcome of the county executive race. But David Blair would have to win an outsized share of them to overtake Marc Elrich’s 42 vote lead. The ballots are from four precincts in Germantown and four in Wheaton. The Board will count the ballots and certify the election on Saturday. Then it’s on to the recount.
Here is the press release from the Board:
For Immediate Release: Thursday, August 11, 2022
MONTGOMERY COUNTY BOARD OF ELECTIONS ACTING DIRECTOR RELEASES STATEMENT ON ADDITIONAL PROVISIONAL BALLOTS TO BE COUNTED
Montgomery County’s Acting Election Director, Alysoun McLaughlin, tonight released the following statement:
“Our precertification audit identified additional provisional ballots to be counted and the Board of Elections will be unable to certify the election as scheduled at its meeting tomorrow afternoon.”
“Before asking the Board to certify any election, our staff conducts a comprehensive precertification audit. That audit includes an inspection of a random sampling of ballot envelopes and a reconciliation of the total number of voters who cast a ballot against the number of ballots scanned.”
“Today, we pulled our random sample of empty provisional ballot envelopes for audit and were unable to locate one of the randomly selected envelopes where it should have been. In addition, we were unable to resolve a discrepancy between the number of provisional ballots that our staff had recommended that the Board accept, and the number of ballots scanned.”
“Together, these two pieces of information prompted a visual search of folders where provisional ballots had been stored prior to the canvass. Those folders contained 102 unopened, sealed ballot envelopes that were never removed from their folders and presented to the canvass from the following precincts:
Precinct 06-10 – 1 ballot
Precinct 06-11 – 1 ballot
Precinct 06-13 – 14 ballots
Precinct 06-14 – 7 ballots
Precinct 06-15 – 15 ballots
Precinct 13-56 – 12 ballots
Precinct 13-57 – 10 ballots
Precinct 13-58 – 30 ballots
Precinct 13-59 – 12 ballots
“I apologize for this error and for not identifying it until today, or the remaining ballots could have been counted earlier. I want to emphasize that Maryland’s comprehensive precertification audit was designed to identify issues like this before an election is certified to ensure the accuracy of the results. It worked as intended.”
“I will finish reviewing the rest of the audit to ensure that there are no further discrepancies before I ask the Board of Elections to certify the results of the election. The Board will meet at 3:30 p.m. on Friday, August 12, and we will discuss the findings of our audit and the schedule for canvass and certification.”
Del. Jheanelle Wilkins lamented yesterday that Montgomery County has ended its 2022 0.4% cap on rent increases:
Today, May 15, marks the end of Montgomery County’s limitation (.4%) on rent increases. Unlike most areas across the country, MoCo residents have been able to avoid sky-rocketing rent increases. I fear for what’s next as this limit lifts.
Takoma Park has its own rent cap, which has risen from 2.6% last year to 7.3% this year, an increase that Del. Wilkins described as “pretty high!”
At the height of the pandemic, temporary controls on top of the freeze in evictions might have made sense except that there was no evidence that rents were going up. (Freezing evictions made sense as so many had their income temporarily disrupted, we wanted people to stay home, and how on earth were people supposed to move?)
Since then, Montgomery County’s cap has had the effect of reducing rents in real terms because the cap was set far below the current inflation rate. While the cap was set at 0.4% starting in February 2022 (and 1.4% prior to that), inflation has been running at 7.3% in the D.C. metro area. Even if a landlord raised rent by the full 0.4%, they saw a 6.4% decline in real income.
Rent stabilization should be the standard everywhere. MoCo’s successful rent limit experiment demonstrates that stabilization works! While rent has risen all around us, MoCo residents have had this strong protection.
Many oppose rent control on liberty and freedom grounds. After all, rent control is the government forcing people to sell the right to use their property at arbitrarily low prices to whoever happens to occupy it. Though this weakening of property rights is promoted as a transfer from the wealthy to the poor, there is no guarantee the rent-controlled units are occupied by the poor or that their landlords are necessarily rich.
Of course, many renters have salaries that are not keeping up with inflation. But that’s not the landlord’s problem. Banks don’t cut landlords or other mortgage holders a break when their income isn’t enough to pay the mortgage. Landlords aren’t automatically granted an extra big rent increase when their tenant gets a major salary bump.
If we maintained the cap for additional years, as Del. Wilkins supports, the gap between what are now effectively rent stabilized and market rate units would only grow. The more we require landlords to rent at artificially low rates and limit earnings potential, the less incentive there is to build housing. Even if laws exempt new housing, developers are understandably reluctant to build in areas that are willing to adopt controls on existing housing. The same controls could be extended to their property.
The longer rent control or stabilization stays in place, the more it distorts markets. People don’t want to leave rent-controlled apartments because they are unusually cheap. They become an even better deal as the decline of new building results in even higher housing prices.
The combined attack on property rights and on new housing eventually led both Massachusetts and New York—not exactly known as right-wing hotbeds—to eliminate or to drastically curtail rent stabilization and control. Since the value of rental buildings is heavily tied to income generated by the rent, avoiding rent control also prevents denuding the tax base–important to remember if you want the county to keep up the schools or to pay for expensive social programs.
Del. Wilkins is right that prices may swing up precisely because they have been kept artificially low. We already have measures in place designed to assure that new projects provide social benefits, such as MPDUs, at financial cost to developers. Let’s avoid shrinking the housing supply through long-term price controls.
Jane Lyons, a lobbyist for the Coalition for Smarter Growth, failed to register as a lobbyist during 2020 despite conducting paid lobbying activities on behalf of the organization.
The evidence appears on the Montgomery County Ethics Commission website. Timestamps on the reports reveal that they were not submitted until the end of July 2021, well after the filing deadline.
Jan 1-June 30, 2020 Report Timestamp
July 1-Dec 30, 2020 Report Timestamp
But she need not worry. It turns out that Montgomery County’s lobbying laws have no teeth. According to Robert Cobb, Staff Director and Chief Counsel of the County Ethics Commission, there is no real penalty for failing to register or to report earnings:
Typically, we will have no idea if a registration is made late because we normally do not have insight as to when (or even if) the criteria for registration has been met. If someone registers for a prior year, that is likely to suggest non-compliance with the lobbying requirements. We have not sought to penalize entities when they subsequently register after having been notified by the Commission of registration requirements. We have emphasized obtaining compliance.
Cobb goes on to explain why they do not enforce penalties:
[A] program of aggressive seeking of penalties for non-compliance would affect the non-profit communities the most. Non-profit enterprises occasionally engage in lobbying activity and trip the registration requirements without registering. This may be a consequence of inadvertence or lack of sophistication in meeting regulatory requirements. Nonetheless, we have again focused on obtaining compliance rather than instituting punitive measures.
Except that Lyons cannot plead ignorance of the law because she had filed reports in 2019 when she had also acted as a paid lobbyist.
From the way Cobb tells it, lobbyists have little to fear:
In theory there could be a situation where an entity repeatedly fails to register and is intransigent towards efforts to obtain compliance that Commission staff or the Ethics Commission itself believes warrants further action including imposition of a penalty. This would require compelling evidence of noncompliance and persistent reluctance to register.
In other words, the Commission doesn’t even engage in public sanction for failure to comply, let alone impose a meaningful monetary penalty. If lobbyists like Lyons who clearly know better can avoid even the slightest sanction by filing whenever, it is hard to see how public interest in knowing who is being paid to lobby in a timely fashion is being served.
Where the Proposed Legislative Map Divides Gaithersburg
The portion of the Legislative Redistricting Plan for Montgomery County takes a status quo approach. However, it still might violate the Maryland Constitution.
What’s Not a Problem
The major change from the current arrangement is that district 9A, centered in Howard County, now takes in a portion of northern Montgomery County around Damascus. This inclusion of a portion of a ninth (!) legislative district reflects Montgomery’s growth.
It also not so coincidentally happens to aid Democratic Sen. Katie Fry Hester who exchanges a bit of very Republican Carroll County for this bit of Montgomery County. Damascus may be among the more Republican areas of Montgomery, but it is probably friendlier turf for her than the portion of Carroll she lost.
None of this should pose a problem for the plan.
What is a Problem
Instead, the potential problem centers on the new version of District 17. When drawn after the 2010 Census, the district included all of Rockville and Gaithersburg. The new version doesn’t. The dark black lines on the above map show my rough look at where the proposed legislative district boundaries cut into the City of Gaithersburg.
Over the past decade, Gaithersburg annexed areas around Quince Orchard and Shady Grove North that are not in the new D17. Larger areas of northeast Gaithersburg just west of Washington Grove are also outside D17. Most of the excised portions are in D39 but the Shady Grove North bit is in D19.
This invites a constitutional challenge because Article III, Section 4 of the Maryland Constitution states that that legislative district boundaries must give “due regard” to “the boundaries of political subdivisions.”
The Maryland Court of Appeals gave life to this provision when it invalidated the 2001 map, in part for violating too many boundaries. In particular, more districts straddled the Baltimore City and County boundary than necessary.
The Court made clear the importance of this requirement in its decision, writing: “Non-compliance with a state constitutional requirement is permitted only when it conflicts with a federal requirement or another more important Maryland constitutional requirement.”
The State might argue that hiving off part of Gaithersburg was needed so that the district was not overpopulated. But this feels like a dud. After all, the state could have just split Rockville and Gaithersburg into separate districts that included all of each municipality.
The Legislature has a couple of options short of completely redrawing the plan. First, it could redraw the map to include the currently excluded parts of Gaithersburg. Except that this change might well make the district exceed the acceptable population deviation of +/- 5%. The district is already 2.5% larger than ideal.
If this doesn’t make D17 too large, it would solve the problem and make it difficult to challenge the map on this basis. My guess is that the district would end up overpopulated, as the line drawers would otherwise have done this in the first place.
If it does make it too large, the State could try to justify the deviation as desirable to adhere to municipal boundaries. But this faces the same problem as the proposed map in that one could have just put the two big municipalities into separate districts instead.
The State could roll the dice with the proposed map as it stands. Beyond explaining that the portions sliced off Gaithersburg are small and partially not in the current districts, the State could argue that this change was needed to preserve the cores of current districts. The Special Master argued that this was one reason that the 1992 Plan, which was upheld by the Court, did not violate the Maryland Constitution.
This argument seems unlikely to fly, however, because the Court of Appeals explicitly rejected it in 2001, stating: “The premise on which the Special Master proceeded, that the due regard requirement may be subordinated to achieve a ‘rational goal,’ and the State’s argument that the provision must give way to ‘more important considerations,’ also are wrong.”
The Court goes out of its way to make clear that this provision of the Maryland Constitution limits the state’s power even though the “due regard” provision is less strongly worded than similar provisions in other states. In short, it’s there for good reason, such as limiting partisan gerrymandering, and the State cannot ride roughshod over it.
The Court might still uphold it as a de minimis (i.e. trivial) violation of the provision. It could also rule that violations of municipal boundaries are less serious than the violations of county boundaries. Baltimore City is unusual in that it is the only municipality that is also a county equivalent, so the Court could distinguish these questions about due regard for political boundaries from those at issue in its 2001 decision.
Still, it’ll make the inevitable legal challenge to the Legislative Redistricting Plan a lot more interesting if this remains in the final plan. As in 2001, a victory for plan opponents could result in a court-drawn plan because time is short before the primary.
As we roll out the big effort to vaccinate everyone, there has been some confusion. Here’s some information that will hopefully help you sort out what’s going on and why.
State Announcement Jumped the Gun
Governor Larry Hogan announced that people 75 and older in Priority Group 1B would be eligible to receive the vaccine beginning this past Monday. Hogan notified the counties around two hours before the announcement.
The problem, however, is that many counties have not finished vaccinating the people in Priority Group 1A, which includes healthcare providers who could easily become vectors of spreading the virus. As Adam detailed yesterday, Montgomery has received comparatively little vaccine but been vaccinating at a high rate.
Each group is also divided into three tiers. In 1B, Tier 1 includes people 75 and over. Some thought that everyone in Tier 1B would become eligible at once but the county is starting with Tier 1. If you are a Montgomery resident in this tier, you can now preregister for an appointment.
The Governor’s announcement has preceded availability here in Montgomery. This naturally created confusion and unhappiness among some that residents over 75 who thought that they could get the vaccine or even cannot be legally barred from receiving it.
Appointment Software SNAFU
The State has mandated that all county governments use the same appointment software, which was originally designed for the flu vaccine. Flu vaccine is usually plentiful, but we unfortunately have to ration COVID-19 vaccine and have eligibility requirements.
Designed for a situation with plenty of vaccine and the desire to vaccinate as fast as possible, the state-mandated software spits out offers for appointments as soon as they are available and doesn’t take into account eligibility.
This has resulted in people in 1B who thought they were eligible making appointments and then getting turned away because they weren’t. Even though Montgomery is still trying to finish vaccinating 1A, the county began on Thursday to allow anyone who is 75 and over (i.e. Tier 1 of 1B) and showed up for an appointment to get the vaccine.
Councilmember Email Blasts Exacerbated Confusion
Email blasts from some county councilmembers compounded the problem created by the Governor’s announcement by indicating that the county was moving to 1B now and urging people to sign up in all tiers.
Hospitals v. County Vaccination Centers
For whatever reason, 40-50% of people working in hospitals have decided not to get the vaccine. As a result, hospitals have extra. Rather than let it go to waste, they have sensibly been vaccinating people 75 and over, so hospitals have operated differently from county centers.
Ready for More Vaccine
I have heard that vaccination centers have far more people ready to do the vaccinations than people to receive it. While this may seem bizarre, it’s good news because it means that Montgomery may be better prepared for mass vaccinations as more vaccine becomes available.
