DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
REGULAR BOARD MEETING

Wednesday, August 5, 1998
One Judiciary Square
Suite 280
441 Fourth Street, N.W.
Washington, D.C. 20001

The meeting convened, pursuant to notice, at 11:00 a.m.

BEFORE:

LENORA COLE ALEXANDER, Board Member

STEPHEN G. CALLAS, Board Member

ALSO PRESENT:

ALICE P. MILLER, Executive Director

KENNETH J. MCGHEE, General Counsel

CECILY COLLIER-MONTGOMERY, Director of
Campaign Finance

MILLER REPORTING Co., INC.
507 C STREET, N.E.
WASHINGTON, D.C. 20002
(202) 546-6666


C O N T E N T S


ITEM .................................................................. PAGE

 

 

1. Adoption of Agenda .......................................................................... 3

2. Public Matters ................................................................................... 3

3. Board Matters .................................................................................... 3

4. Executive Director's Report ............................................................... 4

A. Petition Verification Report for Initiative
Measure No. 59: "Legalization of Marijuana for
Medical Treatment Initiative of 1998" ................................................... 4

B. Relocation of Polling Place for Precinct
No. 68 .................................................................................................. 57

C. September 15th Primary Election Planning
Activities ............................................................................................. 58

5. General Counsel's Report ................................................................ 60

A. Allegations of Forgery on Nominating
Petitions Supporting Candidacy of
Joseph Agubuzo for the Office of
At-Large Member of the Council ......................................................... 60

B. Proposed Subpoena Regulations ..................................................... 63

C. Litigation Status ............................................................................... 63

6. Campaign Finance Report ................................................................ 64

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P R O C E E D I N G S

MS. ALEXANDER: Good morning. We'll call to order the monthly meeting of the District of Columbia Board of Elections and Ethics. And the meeting is, for the record, the meeting is being held on August 5, 1998, and it is now 11:00 in the morning that we are convening.

I want to note, too, that Mr. Wilson is unable to be with us this morning. He's out of town. So, therefore, I will be acting as the chair, and we have with us also Mr. Stephen Callas, the second board member.

Do I have a motion for the adoption of the agenda?

MR. CALLAS: I so move, Madam Chairperson.

MS. ALEXANDER: All in favor?

[Chorus of ayes.]

MS. ALEXANDER: Thank you.

Are there any other public matters to come before us this morning other than those that are included on the agenda?

[No response.]

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MS. ALEXANDER: Hearing no response, we'll move on.

Are there any board matters other than those appearing on the agenda that we must respond to this morning? There are none?

MR. CALLAS: There are none.

MS. ALEXANDER: Thank you. We'll move on to the executive director's report. Ms. Miller, may we hear from you?

MS. MILLER: Thank you, Madam Chair.

The first item under my report is the petition verification report for Initiative Measure No. 59, which was the Legalization of Marijuana for Medical Treatment Initiative of 1998. I have prepared a report on the results, and the report is available. I have provided copies of the report to the board, and I will read into the record what the findings have entailed.

Based on the analysis of the board's staff, including the review of the voter registration status of the petition standards and the conduct of the random sample, which was done to

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verify the signatures on the petitions in each ward from the group of registrants that was accepted, the analysis has shown that the petition does not contain a sufficient number of verified signatures for the petition to be accepted with the 95 percent confidence level for certification for the ballot.

As you all know, this is a very lengthy process, and the staff has been working tediously for the past 30 days, the time allotted to verify the signatures on the initiative, and I'll give you a little bit of background just briefly. The petition contained 1,815 pages. It was filed on July 6. The staff has spent the past 3 to 3 and a half weeks reviewing the petition and checking the voter registration status of every petition entry to determine how many registered voters were contained on the petition.

After that process, the petitions were sorted by ward and listings, from which the random sample of 100 registrants were drawn, according to the board's regulations. 800 randomly-selected petition signers were then checked against original

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signatures on file for voter registration records to determine if the signatures were, in fact, bona fide signatories.

As you know, the requirement for certification of the initiative measure is that the measure must contain 5 percent of the registered voters of the District of Columbia, and the 5 percent determination is based on the number of registrants 30 days or more prior to the time the petition is filed. That also includes 5 percent registered voters from five of the eight wards.

In the case of Initiative No. 59, the petition was found to be sufficient in five of the eight wards. Those wards were 1, 2, 3, 6 and 8, and it was found to be below the minimum in wards 4, 5 and 7. All that was needed was the sufficiency in five of the eight wards to forward the petition on to the next step.

The total number of registrants on the petition, 17,092, exceeded the city-wide minimum of 16,997, and it was at that point that we forwarded the petition on to the chief of the data management

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division, Mr. Herbert Bixford, and he performed the services of drawing the random sample for the board. It was his determination to consider whether or not the statistical calculations, based on the number of verified registrants in each ward and city-wide, the petition could be validated and whether or not the signatures on the random sample met the statutory requirements, and in this case, it was determined that it did not meet the 95 percent confidence level needed to certify the measure for the ballot.

That being the case, my report, which is here and is available to anyone, includes the statistical analysis, and Mr. Bixford is here with us today, and he can put on the record what his findings entailed.

MS. ALEXANDER: Mr. Bixford?

MR. BIXFORD: Should I?

MS. MILLER: Please, come forward.

MS. ALEXANDER: Please state your name and position for the record.

MR. BIXFORD: My name is Herb Bixford. I

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am the director of the data services division of the Office of Planning, and I did perform the random sampling of signatures from this petition. The staff of the Board of Elections and Ethics then did a signature check based on this random sample, returned those results to me and, using certain statistical formulas, I determined that for the city as a whole, there were not sufficient signatures at the 95 percent confidence level.

MS. MILLER: Okay; a copy of his report i contained with the report that I have prepared, and if anyone has any questions for the statistical sampling, I would ask that they be addressed specifically to Mr. Bixford, because he is the one responsible for those services.

I'll open it up to anyone who has any questions.

MS. ALEXANDER: Okay; does anyone have any questions for Mr. Bixford?

[No response.]

MS. ALEXANDER: Hearing none, we'll move forward.

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Thank you.

MR. BIXFORD: Okay; thank you.

MS. ALEXANDER: Thank you.

MS. MILLER: At this point--yes--the board needs to move that--well, first, the board needs t adopt the report that I have provided and accept the report as reflective of what the results were for the review of Initiative Measure No. 59.

MS. ALEXANDER: Do I hear a nomination to accept the report?

MR. CALLAS: Madam Chair, I move that the report be accepted.

MS. ALEXANDER: And I guess I have to second it.

VOICE: Are you going to hear from the petitioners with regard to accepting-.

MS. MILLER: We're just accepting the report as prepared.

MS. ALEXANDER: And hearing no comments, all in favor.

[Chorus of ayes.]

MS. ALEXANDER: So moved; thank you.

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Okay; Alice?

MS. MILLER: At this point, the board needs to move the petition as insufficient for certification to appear on the next regularly-scheduled city-wide general election ballot, pursuant to D.C. Code Section 1-1320(p)(2), that it does not meet the 95 percent confidence level needed for certification. I do understand that there will be some comment, and this might be the time to hear the comment, before the board moves the motion that I think needs to be made.

MS. ALEXANDER: All right; do we have any comments from opponents of the initiative?

[No response.]

MS. MILLER: No opponents?

MS. ALEXANDER: Okay.

MS. MILLER: The proponents.

MS. ALEXANDER: All right; do we have any comments from the proponents of the initiative?

MR. TURNER: Let me introduce myself. My name is Wayne Turner. I am a D.C. voter, No. AC0002464. live at 409 H Street, N.E., and I am

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the sponsor of Initiative 59, and I am the representative today. I have two attorneys today whom I would like to bring forward to place comments and fact-findings in the record; is that okay?

MS. ALEXANDER: Sure.

MR. TURNER: All right.

MS. WILKINS: Good morning, ladies and gentlemen of the board. My name is Lisa Wilkins. I'll provide you with a card. I am an attorney with Walker, McGeffen and Schoenberger here in the District of Columbia, and I am serving as pro bono counsel for Initiative 59 today. Also with me is Matt Watson.

MR. WATSON: Co-counsel.

MS. ALEXANDER: Okay; thank you. You may proceed.

MR. WATSON: If we could present to the board briefly what the issues are here, the issue is to the signatures which have been counted and verified. The question is whether or not the Board of Elections staff has properly excluded certain of

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the petitions that were submitted with a substantial number of signatures. It is our understanding that the two sets of petitions by two different circulators were not accepted and not counted. One is by Tanya Robinson, and the other is by James Whitehall, the petitioners.

It is our understanding that these have been not counted for two distinct reasons. With regard to the Tanya Robinson petitions, Ms. Robinson listed on the circulating petitions her mailing address, which is provided to the Board of Elections. I think the staff can make available, or otherwise, we can make available-

MS. MILLER: The petition?

MR. WATSON: What?

MS. MILLER: Did you want the petition?

MR. WATSON: If we can show a petition.

MS. MILLER: The registrar, Kathy Fairly, is here. If she can provide us with one petition that was circulated by Tanya Robinson-

MS. WILKINS: If I may, Ms. Miller, I also have extra copies of the package of exhibits that

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both Mr. Watson and myself will be referring to, I can make those available.

[Pause.]

MS. MILLER: Okay; you can proceed. She has both the petitions.

MR. WATSON: You have the petitions there. You will note that Tanya Robinson there lists an address of 1250 Owen Place, N.E., Apartment No. 1, which is the address listed on the Board of Elections records of the registration. If you will look in the materials that were passed to you, there is, in tab five, copies of her registration card with the Board of Elections.

[Pause.]

MR. WATSON: You will note there that the most recent registration there, it lists the address where she lives and the address where she gets her mail, and the address where she gets her mail is a residence that she previously occupied there. We believe that that meets the requirements of the Board of Elections in terms of circulating a petition.

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The function of indicating the address of the person circulating petitions is so that the Board of Elections can verify that the person is a registered voter and is properly qualified to be circulating petitions. It is also a process which the courts have ruled in various things that the board can't be put to an onerous administrative burden. That's a process, then, that basically, the address of the residence to show up within the four corners of the documents that the board has. It's not a situation where one comes in afterwards to show that you are the person registered.

If you will notice on the registration card, it specifically gives the listing of where the person is registered as well as the fact that the petitioner which shows up in these records had secured from the Board of Elections tapes of the addresses listed in the Board of Elections records, and that is the address which appears on the tape.

We would submit that the requirements of the statute have been met in terms of providing an identification of the registered voter, providing

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the identification as it exists on the Board of Elections records as well as on the printout of the statement of the registrant as well as in the card itself.

There is no reason to exclude this. We would also suggest, and there are several thousand petition signatures there, that to do otherwise is not to disenfranchise the rights of the circulator but to disenfranchise the rights to petition their government of several thousand District residents. If these are not accepted because of a difference, which I don't think an individual should be required to carefully parse the language as to what is their mailing address for District registration purposes and what is their residence address for District registration purposes, that to base it on this very technical interpretation would be to disenfranchise.

Now, we have here Ms. Robinson herself if you would like to, for the record, get testimony as to where she lives and the process in filing the registration to vote, but I think that all appears

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in the records.

MS. WILKINS: You have an affidavit there.

MR. WATSON: And there is an affidavit there.

The situation is slightly different with regard to Mr. Whitehall's registration. There again, if you will go to tab six, you can see the situation that existed here, that the Board of Elections received a registration application from Mr. Whitehall, which had an error made by Mr. Whitehall in that in his haste in doing it, it listed apartment number 7 as opposed to apartment number 707. There is an affidavit which follows that which indicates that Mr. Whitehall came in to attempt to make this correction when it appeared, and I think there is no dispute within the Board of Elections that he did actually come in, although that change appears never to have been made on the Board of Elections records.

In fact, if you note, on the petitions, it then lists the apartment number as the erroneous apartment number which is on the Board of Elections

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records which has not been changed as his address for soliciting the petitions. The only current error here would be whether it's apartment number 7 or apartment number 707. There is no question that he lists his street and number of 1401 N Street, where he actually does live.

Again, this is a situation not about the extent of violating Mr. Whitehall's rights but thousands of District registered voters who have signed petitions. We understand that those petition signatures have not been counted and not in any way been added to the number in the executive director's report. However, it our contention that the only requirement is that the Board find that there is a sufficient number of signatures, not the actual number of signatures.

Since there is a number of signatures that has been counted, which is over the level required but in the statistical sampling falls below the 95 percent confidence level, if the Board of Elections takes notice of the additional petitions which are here today and the number of signatures there, the

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board can administratively determine that that is a sufficient number when added to the others to give a sufficient number of signatures to have the confidence, and we request that the board then make the determination that the number of signatures received exceeds the minimum number and that it be certified to the ballot.

MS. WILKINS: And if I may just make some further comments, picking up on what Mr. Watson has stated, let me note briefly that in addition to the six tabbed exhibits that bear the yellow cover sheet, there is an additional piece of paper at the back which we received this morning which is a further affidavit of Ms. Winifred Gallant, also present today and available to testify if necessary, which addresses her knowledge of having accompanied Mr. Whitehall to the offices of the board to make the correction when he became aware of the apartment number discrepancy in the address of the records of the board.

She was present on that day, but, as Mr. Watson stated, there really isn't any dispute about

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that, we don't believe, among the members of the board, but I'd just note that that's also been provided.

As Mr. Watson stated, I think the fundamental truth in this case which distinguishes it, perhaps, and makes it a little unusual, perhaps, from other cases that may have come before this board before is that the addresses provided by the two circulators, Ms. Robinson and Mr. Whitehall, on their circulated certificates are, in fact, addresses in the records of the Board of Elections.

This is not a case where they have provided an address that the Board of Elections has never received, has never received notice of, has never been provided by that circulator. The problem is this technical issue of when the address corrections that the circulators themselves as qualified registered voters provided to the board came into what part of the board records.

These are two circulators who are real people and who are present here today to tell you

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that they are who they say they are; that they reside where they say they resided; that they signed those certificates and circulated their petitions. To continue to exclude from the overall number of petitions submitted by Initiative 59 in this case on the basis of this technicality works the disenfranchisement of more than 6,000 registered voters of the District of Columbia, and the problem here is that this petition has qualified on all other counts leading up to the statistical analysis, as Ms. Miller pointed out in her presentation and the report, that as to the sufficiency city-wide; as to the sufficiency of numbers of signatures on a ward-wise basis, the petition has qualified and went to the next level of statistical analysis.

At that level of analysis, the petition was deemed to have failed because it fell within the margin of error for statistical analysis, because the total number of signatures was insufficient to overcome that margin. We submit that the total number of signatures associated with

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this petition and that should be recognized by the board include 6,000 more signatures than those considered when Mr. Bixford did his statistical analysis and that therefore overcomes the margin of error.

I submit to you that it is this board that is invested with the power and authority to perform this oversight function. Errors happen. Records don't get put into the computer the day that a citizen comes down and files his change of address form to correct something. Typos can happen, and in our review of the proceedings in this case, it appears that there may well be some typos. These things happen.

The point is that this board is vested with the power and authority to hear the evidence of registered electors in the District of Columbia who come forward and say we understand there is a problem; here I am. Here's the evidence of my best efforts to supply this board with my residence address. Here is the evidence of my best efforts to function as a circulator and to execute a proper

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certificate. You should accept my petition signatures. That's our position here today. Rather than rely on human fallibility, which can occur and does occur in recordkeeping, this board should consider the evidence presented and make the determination that those minor discrepancies are explained by the evidence or overcome by the evidence and, therefore, the petitions collected by Mr. Whitehall and Ms. Robinson should be accepted for inclusion in the overall petition.

This is a matter of some urgency. As Mr. Watson pointed out, what we are seeking is that this board make a determination today that on the basis of the evidence presented, number one, the petitions circulated by Mr. Whitehall and Ms. Robinson be accepted for inclusion within the overall petition and, two, that this board take notice that that acceptance will result in the inclusion of some 6,000 petition signatures, which will move this petition beyond the margin of error in the statistical analysis, the only remaining qualification hurdle that this petition needs to

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meet to qualify for the November ballot, and that, therefore, this board has the authority to go ahead and certify this petition for inclusion on the November ballot on that basis.

The organizers of Initiative 59, I'd like to point out, sought to avoid just this deadline problem of running up into August with questions about the sufficiency of their petition. They filed their petition a month early. They sought and obtained, at considerable expense and time, the records of the board so that they could perform oversight and good faith efforts on their part to ensure that the petition that they submitted was accurate and could be verified and would meet all of the qualification standards.

And I think that their efforts, the success of their efforts, is borne out by the fact that at every level of analysis leading up to the statistical analysis that Mr. Bixford performed, the petition met all of the guidelines and requirements of this board.

[Pause.]

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MS. WILKINS: The remaining arguments, which I won't restate, because I've already provided them to Mr. McGhee, General Counsel, in my letter, which is part of your package, dated July 30, really go to the facts of this matter. Mr. Watson has already done a perfectly good job of presenting those facts to you and walking you through the technical issues of the two certificates, and we addressed questions. So, I'm not going to repeat those. They are also contained in my letter to Mr. McGhee.

But I would note that Mr. Turner, who is the proponent of the petition, is present here today and is available to answer any questions from this board and I'm sure would also like to make some comments, particularly with regard to the urgency of this matter and why it's so important that Initiative 59 be on the ballot in November. And also available today to be questioned by this board, if necessary, are Mr. Whitehall, who submitted an affidavit; Ms. Robinson, who submitted an affidavit; as well as Ms. Gallant, who also

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submitted an affidavit in support of James Whitehall's affidavit.

MR. WATSON: If I could say one further thing we should probably make clear is that there is a question as to whether or not Mr. Whitehall should be considered on the active registration list, because as I understand it, because of the error on the apartment number, this was sent to that apartment and was returned by the Post Office, and by the procedures of the Board of Elections, an individual is then placed on an inactive list. However, I think there is no question, and the board staff will agree, that Mr. Whitehall did physically appear at the Board of Elections after that time period, when he restated and gave the proper address.

So, whether or not the board actually picked it up and put it onto the active list, he must be deemed to be again on the active registration list by the fact that he appeared and swore at that time to the proper address, after the Post Office had returned it.

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While the board is correct in putting onto an inactive roll when the Post Office returns a card mailed to the voter, the board must then put him back onto the active role when the elector comes in and again acknowledges where he does live and what the correct information is. So, at least by--as of December 8, Mr. Whitehall, then, did become again an active registered voter, and I think the board must recognize this whether or not that change was actually made on the roll.

MS. MILLER: Let me address that, and the registrar is here and can probably do a better job than I can, but I will just address the information that I have before me, and that is that I am looking at a registration application for James John Whitehall, showed at 1401 N Street, N.W. That card was returned, which is the voter's card. The voter card was returned. It was received back in our office on November 17.

The date on this application is November 3. Apparently, after it was returned back to our office, we then sent him a canvass card, because it

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was returned. The canvass card was returned back to our office from the address of 1401 N Street, N.W. on February 9, indicating that the attempted, not known by the Post Office, which then placed him on the inactive list, and nothing, to my knowledge, has been done to correct or further update that information that we have from the Post Office.

He is registered from 14--or attempted to register from 1401 N Street, which is the information that we have on the return, and it's my understanding that that is the address that was used on the petition as well.

MS. FAIRLY: That is the address that's on |the petition.

MS. MILLER: So, the 1401 N Street, which is the address that we got back from the Post Office, is the same address that appears on the initiative petition, which placed him in the inactive status. There is no conflict of apartment number or anything with respect to that. It is 1401 N Street, which is what places him on the inactive status on our records, and Ms. Fairly can

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comment further on that if need be.

MS. FAIRLY: That is correct; yes, 1401 N Street, N.W.; it was returned from 1401 N Street, N.W.

MR. WATSON: The Post Office does seem to have returned it there. However, that only creates a rebuttable presumption that he is not a resident there, and there has been evidence, and we can put forth evidence here as to who he resides with and, in fact, you have at the time the leaseholder of that apartment indicating a" well that he does reside there.

MS. MILLER: Well, he is on our inactive status, and by law, the law specifically states that we cannot accept inactive voters for purposes of petitions. So, by him being on our inactive status, that, therefore, would eliminate any petition that would have been circulated by Mr. Whitehall.

And I do want to say one other thing with respect to the 6,000 purported names that may be on the petitions with respect to these two

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circulators, just for the record, there is no indication of what the real numbers are. There may be 6,000 names, but we have no idea, nor have we done any investigation, to determine how many of these people would be qualified to go forward; how many of them would be duplicates; how many of them |would be eliminated for one reason or another.

So, I don't know what the real number is, but I do want to put that on the record: there has been no determination made as to the eligibility of the signatories with respect to those petitions that were circulated by either Tanya Robinson or James Whitehall, and I will ask the registrar if she will put her name on the record and her position and then comment as to the Tanya Robinson.

MS. FAIRLY: For the record, Kathy Fairly, registrar of voters.

When we went through the petition, we actually rejected the papers that were circulated by Tanya D. Robinson. Her residence address on the |board's record is 1000 Seventh Street, N.W.,
Apartment 1. The petition page shows that she

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signed this affidavit saying that she lived at 1250 Owen Place, N.E. What we do is we compare what's on the board's records of the residence address, and that's what's in the D.C. Code as well as in the board's regulations, that the address must match what's on the board's records at the time of circulating the petitions

MS. MILLER: And one other comment, Mr. Watson, and you know I have all the respect in the world for you, so, with respect to the records that the circulators obtained and the proponents of the measure obtained from the board or from share, those records were obtained in January. I think it's important that that go on the record. This petition was not issued until February, and so, at the time the record was obtained, the January record reflecting the voter information from January, it was 30 days prior to that, which means lit's information on there from December.

The petition, again, was not issued until February. Those records change daily and are updated with share at least once every 30 days. It

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would have been wise to try to get a more current listing or, at least, if they couldn't purchase another one, to check back with the board to determine what addresses had listed on our records.

MS. ALEXANDER: So, there was sufficient time and availability for them to-

MS. MILLER: Well, they had 6 months to circulate.

MS. ALEXANDER: Okay.

MS. MILLER: So, they filed in 5 months. So, they had yet another month to file, but they took advantage of the filing to try to get on the November ballot, and we understand that and appreciate that. There's nothing wrong with that. But the information that they were using, unfortunately, was old information.

MS. ALEXANDER: And the instructions on the petition clearly state that at the time this petition is circulated, the circulator must reside at the address listed on his or her voter registration record.

MS. MILLER: That is correct.

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MR. WATSON: If we could respond to this twofold, one is that the changed address that creates the problem with Tanya Robinson was submitted in December of 1997. So, it's not clear as to why a lady that's been in January did not pick that up, we're not familiar with what later listings show. However, it should say two things: number one, the board itself can look to the function of this listing of name and address of the circulator, and the purpose of listing the name of the circulator is so that the Board of Elections can, with a not onerous burden, determine that that circulator is the person who is registered to vote in the District of Columbia.

I think there is no question that test is met, because what the test is there is whether or not that circulator's name appears there with the address of the circulator as listed. One reason for listing addresses is so that you can identify that it's this Tanya Robinson and not another Tanya Robinson who could well be registered.

There is no question that on the board's

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own registration card, it lists the address where one gets mail, which is listed as the 1250 Owen Place, N.E., Number 1, which is the location where she gets mail, which is, in fact, where the Board of Elections would mail out a canvass card to ascertain that she is still a registered voter.

If the board is to impose a requirement that even though the address is listed there, so it can be identified, that this elector has to have made what's a very narrow legal interpretation as to what their address is for Board of Elections purposes, it would have the effect of disenfranchising many people.

Now, I would say it would be a different position if the 1250 Owen Place did not appear on the Board of Elections records, because then, one would have to get extrinsic evidence, which should not be necessary in validating the petition. However, that's not the case here. The address does appear on the Board of Elections record and, I dare say, should probably continue to appear there in the printout of registered voters, because if

33




someone purchases a list of registered voters for the purpose of mailing to the registered voters, one would mail to them, then, at their mailing address, and I think it would be inappropriate to list differently other than the mailing address, which is, I assume, why the January listing shows the mailing address, because--

MS. FAIRLY: Indulge me for a minute.

MR. WATSON: Sure.

MS. FAIRLY: Actually, we didn't receive this until January. She did fill it out on the 30th of December. It was received in the Board's office on January 6, 1998. Therefore, it would not have been reflected in any data that we gave out to the public or even to share. We would not have given this information to share until January 31. It would not have been available for purchase until sometime in February.

MR. WATSON: We would have to verify that. I think it doesn't really matter when the information was given to the board. I certainly would hope that if share lists the lists, what they

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are listing is a mailing address.

MS. MILLER: Do you know what they list? Is it the mailing address or the residence address?

MS. FAIRLY: I'm not sure.

MR. WATSON: It would seem to me that it would be inappropriate for the board to sell to people a list of addresses--

MS. FAIRLY: If it's the mailing labels, it's mailing address. If it's a listing--

MS. MILLER: It's the residence.

MS. FAIRLY: If it's a residence address--

MS. MILLER: It would depend on what the request is.

MR. WATSON: I think, as we can see here, even among people very knowledgeable, there is a question as to what address should be used for this individual, as to the fact that if it's a label address to be mailed, it's the mailing address, which the board has. If it's an address of how we lawyers define residence, it's a residence address. That is, I would submit, a burden that should not be put onto a citizen, and even more than that is

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not something that should cause the disenfranchisement of a substantial number of voters to petition, in effect, to petition their government, a constitutionally-permitted, a constitutionally- encouraged, activity to come to petition that government, that what one would have to say here, that an individual, in good faith, signs this petition by a petitioner who is, in good faith, circulating it, who there is absolutely no question is a qualified elector in the District of Columbia, was not accompanied by a lawyer in filling out the form as to her address but rather listed the address, which appears in certain Board of Election records, and that would be a disenfranchisement of a group of people, and we have few enough rights in the District as it is to even further burden, and I think inappropriately.

MR. CALLAS: Madam Chair, Dr. Alexander, it seems to me that when these petition forms are circulated, it's important for those who want to solicit signatures should be shown the form, because, as Dr. Alexander has quoted, let me repeat

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it: residency of circulator: at the time this petition is circulated, the circulator must reside at the address listed on his or her voter registration record. End of quote.

And as the record shows, Tanya Robinson's address on the registration form is 1000 Seventh Street, N.W., Apartment 1, and the address on the petition form is 1250 Owen Place, N.E., and it's important that this be shown to prospective circulators, but we have an obligation to adhere to the rules, and although, Mr. Watson, you have presented an eloquent case, I think it's important to adhere to the rules and regulations.

MR. WATSON: If I could say, I guess I would differ with you as to whether or not it does even comply with the record there. It says it must be at an address which appears on the registration card, and if you look at the registration card, the 1250 Owen Place, N.E. address appears on the registration card. Now, it appears in line four and not in line three, but even strictly construing what the requirement is there, it merely says that

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it is to have the address which appears on the registration card, and the address does appear on the registration card.

MS. MILLER: The statutory provision, 11320(h), provides that each petition sheet for initiatives shall contain an affidavit, made under penalty of perjury in a form determined by the board, which we have done, and signed by the circulator of that petition sheet, which contains the following: the residence address of the circulator, given the street number, and the residence address, made under penalties of perjury on this petition form, clearly states the address which is different from the address that appear on our records.

It is an unfortunate situation. I will give you that. But it nonetheless is the affirmation that has been made by the circulator, and it's done under penalties of perjury, and it lists a residence address as the address which is different from the address that we have on our records.

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MS. ALEXANDER: And the form clearly says address where you live place where you live. I assume residency is the place where you live.

MR. WATSON: If I can say, that's guise a burden to put on a voter, merely a voter. If it did say, for instance, that it asked on the registration form for your residence address, then, it might be clear. But the registration form doesn't ask for that. The registration form says address where you live and address where you get your mail, if different from number three. Now, what one is saying, then, is that we have a test, a poll test, put on a voter in terms of circulating petitions that they must then be able to make the legal determination that residence is not either of these addresses for these purposes but is just one address.

If that is the case that one wants to enforce strictly what is on there, I think one has to have, then, the same language, so that one can go back to their registration card and say this is the address listed as my residence address. But

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it's not. It has to--the address here is the address where you live. And, in fact, I believe that the card doesn't use the term residence in any- --

MS. MILLER: It doesn't, because it was crafted sometime back by a group of people that was--it's a user-friendly card; that's the whole idea, okay, for it to be user-friendly and easy enough to understand.

MS. ALEXANDER: And, you know, the place where you get your mail can be a P.O. address.

MS. MILLER: And it does say on the affidavit address, including ZIP Code; printed name, voter registration, address including ZIP Code, and address here is--she has 1250 Owen Place, N E which is the same address that appears on the--I mean, it's different from the address that we have on our records.

MR. WATSON: Well, no, it is different than the address that you have in line three of your records. You have, in line four of your records, that address, and I think-

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MS. MILLER: We have it as a mailing address.

MR. WATSON: And I think the question the board has to look to is whether or not the address listed appears in the Board of Election records. The purpose of the listing of these addresses is not to see if the solicitor of the petition can follow instructions. It is not to see if the solicitor of the petition has sufficient understanding as to the meaning of these words.

The purpose of this is to ensure that only a qualified elector solicits petition signatures. The question is whether or not the filling out of that meets the purpose. Otherwise, you know, for instance, the board could not have a requirement that there be good penmanship when listing the name and address.

MS. MILLER: There is a legibility requirement, though.

[Laughter.]

MR. WATSON: The question is is there, in the board record and
in the four corners of the

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record, sufficient information to verify that from the four corners of the petition, you know that this is the person who circulated it, and this is the person who is qualified and entitled to do it. Otherwise, we're putting what should never exist in this country, either a literacy test on your rights to exercise your rights as an elector or a poll tax, which it would be if one has to go out and get outside counsel in order to do this.

MR. CALLAS: And, Mr. Watson, we were simply--the regulations call for a similarity of addresses, not different addresses, because one address appears on the registration form, 1000 Seventh Street, N.W., Apartment 1, and on the petition form, there is a different one, not the same one: 1250 Owen Place, N.E.

MR. WATSON: But the 1250 is on the registration form in a different box.

MR. CALLAS: Well, but it's in a different box.

MS. ALEXANDER: And with a different meaning.

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You know, I suppose we could sit here all day long and go around and around and around, get into arguments about residency, addresses where you receive your mail, domiciliary and everything else, and I certainly appreciate the cogency of the arguments that both you, Mr. Watson, and Ms. Wilkins have presented.

MR. WATSON: I think it would be worthwhile probably for you to consult with your counsel as well as I think we should have a summation from the proposer.

MS. ALEXANDER: Right; that's what I'm going to ask for at this present time. Can we have a summation?

Do you want to give your name for the record, please?

MR. TURNER: My name, once again-

MS. ALEXANDER: Once again.

MR. TURNER: --is Wayne Turner, of 409 H Street, N.E., Washington, D.C. Steve Michael, my partner, was the original sponsor of this initiative, and he died,

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and I am the sponsor now, and this initiative is about democracy and enfranchisement of the people of the District of Columbia. This petition was circulated by D.C. residents; we turned in a gross of 32,000 signatures, fulfilling Steve's dying wish that this initiative be voted on by the people of the District.

Now, if we have to go to court for this, then, I think it's fairly clear that any court here in the District will rule in our favor and have these petition sheets reinstated, because Tanya is a real person. Wave, Tanya; and so is James Whitehall. These are real people, real D.C. voters who are here petitioning our government to place this on the ballot.

Now, if we go to court, and if we win, we have a huge delay. We turned in our sheets a full month before our 180 days so that we could make that November 3 ballot. We got the 32,000 signatures, and we self-verified, so we knew exactly how many we had. If we go to court and go back and forth and back and forth and, based upon

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the precedent-setting cases that I've reviewed and our attorneys have reviewed and I believe your own general counsel has reviewed, it is a very, very-it is very, very likely that we will win.

Now, in the meantime, what this board would be saying is that based upon a restrictive reading of regulations which are in conflict with another set of regulations which say you have to be a real D.C. voter in order to circulate--now, I have two living, breathing human beings here who are real D.C. voters who circulated these petitions.

Now, if we wind up going to court, my lawyers here are pro bono for me, but they will not be when we win and have to, you know, resolve this battling it out in court. The purpose of the board is to look at these questions; to make determinations; to extend the franchise for people who are volunteering and petitioning their government and participating in the democratic process, and I would say before you actually make a ruling, you should--I would recommend that you do

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hear what your own general counsel has to say regarding what power do you have?

Do you have the discretionary power as a board, whose vested interest is, you know, protecting the democracy--that's what your job is here--and I think that it would be not only wrong to disenfranchise, say Tanya and James Whitehall, that their work didn't count; their signatures don't count, and not only would that be wrong, but the purpose of the statute for the listing of addresses is as a means--it's a tool. It's a tool for the staff here at the board to determine are these real people? Which Tanya Robinson is this?

This is a tool. It's not the end. It's a means to the end. What are you trying to determine? You're trying to determine that these people are real D.C. voters. Well, they're here, and they have signed affidavits saying that they are D.C. voters, and they were living--you know, while they were circulating. So, that's the determination that you need to make and you have the power to make.

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You know, to depend upon a registry of records, and I'll give you an example. We found someone who signed our petition. His last name is H-E-N-S-O-N, Henson. He's listed in your registry as Henso. Someone had left off--well, you know, you've had plenty of time. I'm giving an example here, all right?

MS. MILLER: Just want to let her put it on the record. Just let her put it on the record.

MR. TURNER: Fine.

MS. FAIRLY: For the record, there's H-E-N-S-O printed on his voter registration card. I also have the original for the board.

MR. TURNER: So, his signature wasn't counted. But is that a real person? I mean, here's-

MS. FAIRLY: We can only work with the records.

MR. TURNER: That's right.

[Laughter.]

MR. TURNER: That's right; this is what your responsibility is as a board. Your

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responsibility is to say, you know, is enforcing the rules and regulations but also exercising your own discretionary power so that we don't, every time we have an initiative, it doesn't have to go up for a court battle.

MR. CALLAS: In effect, Mr. Michael, you're stressing-

MR. TURNER: My name is Wayne Turner. Steve Michael is dead.

MR. CALLAS: I'm sorry, Mr. Turner.

MR. TURNER: I also thank the board members for their kind eulogies or comments.

MR. CALLAS: Mr. Turner, it seems to me that you're stressing the human factor, and we're stressing the legal factor, and that's what we have to go by. We're a board of laws and not men, so to speak.

MR. TURNER: But, sir, I am urging the legal factor, too. Is Tanya Robinson and James Whitehall, are they D.C. voters?

MS. ALEXANDER: But the issue is not whether they're D.C. voters. We're talking about

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residency today, not whether or not they're voters.

VOICE: And I testified-

MR. TURNER: Winnie, Winnie, please.

MS. ALEXANDER: Mr. Turner has the floor now. We'll give you a moment.

MR. TURNER: You do have affidavits from both of these individuals saying that yes, they were living at the addresses, you know, you know, you know, that are listed in your records. I mean, I'd like--does Ken McGhee have any guidance on this issue? Otherwise, and I'll tell you, we have operated in good faith. We did not file in court when these two circulators were first set aside immediately, although we thought that maybe we should, because instead of always going to court, we do have the power to present evidence here, and it is your responsibility and your ability to determine are these people voters or not, which is the purpose of the regulations.

The purpose of the regulations regarding the addresses is to determine whether or not these people are genuine D.C. voters.

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MR. CALLAS: But, as Dr. Alexander has pointed out, Mr. Turner, it's a matter of address and not whether they're D.C. residents.

MS. ALEXANDER: Or legitimate voters.

MR. CALLAS: But you've made a very eloquent presentation, Mr. Turner.

MS. ALEXANDER: And we appreciate your reminding the board of its responsibilities that we try to carry out every month. When we come up here as board members, we try to carry it out. But we appreciate so much what you have had to say, and we take it all into consideration.

Now, is there another person in the audience who had something they wanted to address to the board?

MS. GALLANT: You have my affidavit.

MS. ALEXANDER: Can you come forward and give your name for the record, please?
MS. GALLANT: Yes.
MS. ALEXANDER: Name and address for the record, please.
MS. GALLANT: My name is Winifred Gallant,

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and I've lived at 1401 N Street, N.W. for the last 8 years, and I just--referring to my affidavit, I again apologize--that this gentleman here has been a resident there since his first and before his first application for voter registration, and he continues to use it as his primary address. And I am just confirming that that is the fact.

MS. ALEXANDER: Thank you so much for your confirmation.

MS. GALLANT: Thank you, and that's what I have-

MS. ALEXANDER: And we have your affidavit here.

MS. GALLANT: And I said Ms. Fairly would remember our presence in her office.

Thank you.

MS GALLANT: Thank you.

MS. ALEXANDER: Thank you so much.

MS. GALLANT: I appreciate you all.

MS. ALEXANDER: I think the board has sufficiently heard all of the arguments, and have we heard everyone who wishes to speak to this

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issue?

[No response.]

MS. ALEXANDER: Have we heard from everyone?

[No response.]

MS. ALEXANDER: So done. We appreciate your time, your preparation from all of the parties who were involved in this.

Do I have a motion?

MS. MILLER: There is a motion on the floor, Madam Chair, that the board move to reject the initiative petition as numerically insufficient for certification for the ballot.

MS. ALEXANDER: Okay; do I have a second?

MS. MILLER: You have to move it first.

MR. CALLAS: I so move, Madam Chair.

MS. ALEXANDER: You so move.

Do we have a second?

MR. CALLAS: Second.

MS. ALEXANDER: All in favor?

[Chorus of ayes.]

MS. ALEXANDER: There are the results.

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