Kenneth McGhie
General Counsel,
District of Columbia Board of Elections and Ethics
441 4th Street NW 2nd floor
Washington, DC 20001

Dear Mr. McGhie,

As you know, on July 6, 1988 we submitted 1815 petition sheets in support of Initiative 59, and the Board of Elections and Ethics set aside all petitions circulated by Tanya Robinson and James Whitehall. As you also know, we strongly believe those petitions should be counted as valid. Because your office will be responsible for litigating any challenge to the Board's decision to invalidate the petitions in question, I would like to present our lay perspective regarding the legal validity of the petitions circulated by Ms. Robinson and Mr. Whitehall, and encourage you to advise the Board to include those petitions.

In the unlikely event that the Board insists on invalidating the petitions in question, thereby forcing legal action, the Initiative 59 Campaign will be represented by one or more of several lawyers who have already indicated a willingness to represent us pro bono. Therefore nothing in this letter, written without the assistance of counsel, should be construed as binding the Initiative 59 Campaign to any legal theory or position. Any legal citations contained here are included merely to draw your attention to information gleaned from a layman's reading of cases which seem germane to the issue of the validity of Ms. Robinson's and Mr. Whitehall's petitions.

FIRST, in Orange v. District of Columbia Board of Elections and Ethics, 629 A.2d 575 (1993), the court held, "since the Board's voter records are publicly available throughout the petition period, that period provides adequate time for the candidate's supporters to verify that each signer is registered at the address listed in the petition." Id., 580. Here an important distinction from the facts presented in Orange, is that the Initiative 59 Campaign, at considerable expense, and in good faith, did obtain a copy of "the Board's voter records" -- which contained the assurance that, "tape copy provides all voter records in the current registry" (emphasis in original, receipt attached, for your convenience), which was used expressly "to verify that each signer (and circulator was) registered at the address listed in the petition." Moreover, according to the Board' voter records, both Ms. Robinson and Mr. Whitehall were indeed listed at precisely the addresses on their Circulator's affidavit.

Although our concern is simply to qualify Initiative 59 for the ballot, rather than to take issue with the accuracy of records supplied to the public by the Board, at the time we submitted the petition on July 6th, we also submitted a letter advising the Board of certain inconsistencies discovered while using the voter records obtained from the Board. For your convenience, a copy of that letter is attached.

SECOND, in Orange the court addressed a situation involving "hundreds or thousands of challenged signers [which] would impose severe burdens on the Board." Id., 581, see also, id, footnote 7. In our case -- where the Board seeks to invalidate thousands of unchallenged signers purely on the basis of, if not the Board's less than optimal record keeping, a mere technicality -- the most "severe burden" that might be placed on the Board would be to determine whether or not two (2) circulators are "valid registered D.C. voters."

It is obvious, from Ms. Robinson's voter's registration and change of address forms, currently on file with the Board (copies attached for your convenience), that:

1) there is absolutely no question Ms. Robinson has been continuously registered as a D.C. voter since August, 1983;

2) her voter's registration number has remained unchanged;

3) the signatures on Ms. Robinson's voter's registration and change of address forms is the same as the signatures on her circulator's petitions,

4) the address listed on the public record of registered voters which we obtained from the Board, is "1250 Owens Place, NE," the precise address which appears on Ms Robinson's original voter registration card.

5) Ms. Robinson's change of address form clearly lists the address at which she gets her mail as "1250 Owens Place, NE," as her last place of residence.

Based on the foregoing -- without further burdening itself -- it would certainly be reasonable for the Board to conclude that the "Miss Tanya Robinson" who executed the Circulator's Affidavits which the Board now seeks to ignore, is, and at all times since August, 1983, has been a "valid registered D.C. voter."

In its' effort to disenfranchise Ms. Robinson, and the thousands of unchallenged signatures contained on her petition sheets, the Board merely relies on the technicality that her Circulator's Affidavits do not list the "residence address of the circulator," and/or, perhaps, the fact that Ms. Robinson's change of address form, dated December 30, 1997 -- changing her residence address from "1250 Owens Place, NE" to "1000 7th Street" -- apparently fell through the cracks of the Board's public record keeping.

We note that in Harvey v. District of Columbia Board of Elections and Ethics, 581 A.2d 757 (1990) the court held that,

"the Board's verification process [regarding signature requirements was] cast in absolute terms (and) precludes a candidate from proving by other means that such persons are in fact duly registered. Accordingly, the (Board's) challenges based on noncompliance with [the signature requirement] must be dismissed" [brackets substituting, parenthesis added].

The Board casts Ms. Robinson's address "in absolute terms, " as "1000 7th Street," while completely ignoring her signature, voter's registration number, previous registration at "1250 Owens Place," and the fact that it provided us with a voter's registration list identifying her "residence address" as "1250 Owens Place." Thus, the Board's disqualification of Ms. Robinson's sheets is based on nothing more than an irrational example of nit-picking which does nothing to further any "state interest of compelling importance." Orange, at 579, citing Norman v. Reed, 502 U.S. 279, ---.

In the case of Mr. Whitehall, he first registered as a DC voter on November 3, 1997, correctly listing his address as "1401 N Street, NW," but mistakenly identifying his unit number as "Apt. 7." See, Attachment 3, hereto. Actually, Mr. Whitehall was residing at 1401 N Street, NW, Apt. 707. When the Board sent Mr. Whitehall's voter registration card to "Apt. 7" it was returned as "undeliverable." Nonetheless, the voter registration database purchased by us from the Board also indicated that Mr. Whitehall was registered at the 1401 N Street address.

When, after many weeks, and Mr. Whitehall had not received his voter registration card, he contacted the Board and was informed of his mistake. Immediately upon being informed of the confusion, Mr. Whitehall, in the company of Ms. Winifred Gallant, who also resides at 1401 N Street NW, Apt 707, personally visited the Board's offices at 441 4th Street to rectify the error.

On July 6th we submitted nearly 32,000 signatures, of which, by our independent verification -- based on the database obtained January 12, 1998 -- nearly 20,000 are valid. Because we have such a large number of signatures, the Board is proceeding with the signature validation process

The Board is suggesting that we not be concerned with Ms. Robinson and Mr. Whitehall at the moment, because we may qualify without the signatures they collected. However, according to our calculations, between them, Ms. Robinson and Mr. Whitehall turned in more than 3,000 valid signatures. Simple math suggests that without counting their signatures, we will be very close to not qualifying.

Primarily, our contention is that, in good faith, and for the express purpose of insuring that circulators and signatories to our petitions were actually qualified DC voters, we purchased what the Board represented as a VAILD voter registration database. Now, notwithstanding the fact that the signatures submitted are VALID according to the database it supplied, the Board contends that two persons, listed as VALID on its' own database, should be disqualified.

We believe that it will be most expedient and efficient for all concerned if Initiative 59 qualifies on the first count, thus sparing everyone the time-consuming effort of challenging signatures invalidated as "I" and "M" during the first count, and, if the first count still proves insufficient to qualify the measure, then mounting a civil action to qualify Ms. Robinson and Mr. Whitehall as qualified voters.

With all due respect, we feel that most courts will agree that a combination of an a outdated voter registration database -- sold by the Board as "up to date" -- identifying both Ms. Robinson and Mr. Whitehall as qualified DC voters, at the "residences" noted on their Circulator's Affidavits, does not justify disenfranchising them.

As suggested in our letter to the Board on July 7, 1998, we certainly hope the Board will quickly implement policies and practices which will insure accurate, up to date accurate voter registration information to everyone interested in participating in the democratic process.

In the meantime, we request you advise the Board to include the petition sheets submitted by Ms. Robinson and Mr. Whitehall in the first count, as this will save us all considerable time and effort.

On behalf of the Initiative 59 Campaign, I remain,

Sincerely,

Wayne Turner

Initiative 59 Proposer