IN THE SUPERIOR COURT
FOR THE DISTRICT OF COLUMBIA
CIVIL DIVISION


WAYNE TURNER
409 H Street, NE
Washington, DC, 20002
                   Plaintiff,

                  v.                 Civil Action No. 98CA006077

DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
441 4th Street, N.W.
Washington, D.C., 20001
                     Defendants.

PLAINTIFF TURNER'S AFFIDAVIT CONCERNING ISSUES TO BE PRESERVED

I, Wayne Turner, hereby state under penalty of perjury, that I am the named Plaintiff in the above entitled action, and that the following is true and accurate to the best of my knowledge and recollection:

1. The DC Code requires that a challenge to a decision of the D.C. Board of Elections and Ethics ("the Board") must be raised before the D.C. Superior Court within ten days of the contested decision.

2. The Petition for Mandamus in this matter challenges the manner in which the Board dealt with the petitions of one circulator, Tanya Robinson. I intend to file a Motion for Summary on this discrete issue early next week.

3. Matt Watson, who represents me in this action, is confident that the Court will grant my Motion for Summary Judgment. Because of the time constraints related to putting Initiative 59 on the November, 1998 ballot, I have no desire to preclude expedited action. However, in light of the time constraints for noting exception to a decision of the Board (supra, ¶ 1), I also want to preserve my right to judicial review of two separate issues which have become apparent since the pending Petition for Mandamus was filed; namely, (1) the manner in which the Board administrated the tabulation of signatures on petitions for D.C. Initiative Measure No. 59, and (2) the policies by which the Board makes voter information available to, or withholds information from, the public.

4. On December 9, 1997, Steve Michael, the measure's original sponsor, submitted to the Board a proposed initiative measure to legalize marijuana for medical purposes in the District of Columbia. On January 9, 1998, the Board accepted the measure as a proper Subject of Initiative, and approved a short title and summary statement On February 11, 1998, the Board assigned it the number of Initiative #59, and authorized the proposer to circulate petitions for signatures, pursuant to D.C. Code S 1-1320.

5. On May 25, 1998, Mr. Michael died from AIDS. With Mr. Michael's death, Plaintiff Wayne Turner replaced him as proposer of Initiative 59.

6. D.C. Code Sec 1-1320(1) provides that, to qualify for the ballot, proponents of an initiative must gather the signatures of 5% of the registered electors of the District of as well as 5% of the voters in each of five of the eight city wards within 180 days.

7. According to the Board, as of May 31, 1998, 5% of qualified registered DC voters amounted to a total of 16.997.

8. Both to insure that all the circulators of the Initiative 59 petitions were qualified registered D.C. voters, and to ascertain the number of qualified registered D.C. voters who actually signed the petition, on January 13, 1998 the Initiative 59 Campaign PURCHASED from the Board of Elections and Ethics a computer tape. A document provided with the computer tape assured that the computer record, "provides all voter records in the current registry." (emphasis in original).

9. The computer record obtained from the Board was on a nine track tape. Nine track tape is a format which is virtually obsolete. Converting the nine track tape to a usable format cost approximately $300, consumed two weeks, and required locating a nine track computer in Virginia.

10. Much to his consternation, during the process of using the voter records provided by the Board (supra, ¶¶ 8 & 9), Plaintiff discovered that those records contained inaccuracies, some going back at least to October, 1997.

11. On July 6, 1998, more than 30 days prior to the expiration of the 180-day limit (supra, ¶ 6), Plaintiff submitted to the Board 1815 signed petition sheets containing approximately 32,000 signatures in support of Initiative 59.

12. On July 7, 1998, Plaintiff addressed a letter to Executive Director of the Board ("Director") Miller, generally informing her of inaccuracies discovered in the Board's record.

13. On or about July 8, 1998 Director Miller and D.C. Registrar of Voters ("Registrar") Kathryn Fairley informed Plaintiff that the petitions submitted by two circulators, Ms. Tanya Robinson, and Mr. James Whitehall -- a total of more than 6,000 signatures -- would be "set aside," and excluded from the Board's tabulation of signatures required to qualify Initiative 59 for the ballot.

14. Plaintiff provided the Board with undisputed evidence that, since August 23, 1983, there has not been a single moment when Ms. Robinson was NOT a qualified registered D.C. voter.

15. The Board's rationale for setting aside Ms. Robinson's petitions was that the "residence address" -- "1250 Owens Place, N.E." -- on Ms. Robinson's petitions did not match the "residence address" on the Board's "current list of registered voters." In fact, "1250 Owens Place, N.E." is precisely listed as Ms. Robinson's "residence" on the Board's computer tape (supra, ¶ 8) listing "all voter records in the current registry."

16. Similarly, Director Miller's rational for setting aside Mr. Whitehall's petitions was that he had been classified as "inactive." However, in fact, "1401 N Street, N.W.," the address listed on his petitions as Mr. Whitehall's "residence," is precisely the address listed as Mr. Whitehall's "residence" on the Board's computer tape (supra, ¶ 8) listing "all voter records in the current registry.".

17. Hence, of the 32,000 signatures submitted by Plaintiff, the Board actually tabulated only approximately 27,000.

18. Upon being informed of the decision of the Director and Registrar to "set aside" the petitions of certain circulators, Plaintiff importuned both Miller and Fairley to reconsider, pointing out that both Ms. Robinson and Mr. Whitehall were indeed on the Board's list of "all voter records" which Plaintiff had purchased from the Board.

19. Over several days Director Miller repeatedly assured plaintiff "not to worry," because the petition would prove sufficient even without the signatures collected by Ms. Robinson and Mr. Whitehall. Based on Miller's ardent "unofficial" assurances, Plaintiff did not immediately seek to scrutinize the accuracy of the Board's verification process on individual signatures.

20. Plaintiff did, however, continue to urge Director Miller to include the "set aside" signatures. Eventually, Miller claimed that whether to include those signatures was not her decision to make. Director Miller asserted that the decision to "set aside" the contested signatures had essentially been made by Mr. McGhie, because, as counsel for the Board, Mr. McGhie would have defend against any possible legal challenges to the Board's decision of the "set aside" signatures.

21. Consequently, on July 13, 1998, Plaintiff hand delivered a letter to Mr. McGhie's office.

22. Despite repeated telephone calls and personal visits to his office by Plaintiff, Mr. McGhie avoided responding to the issues raised in the letter.

23. Because of the Board's refusal to discuss the inclusion of Ms. Robinson's and Mr. Whitehall's petitions into the tabulation process, Plaintiff repeatedly requested of both Director Miller and Registrar Fairley that the signatures on those sheets at least be checked to determine how many were valid. Director Miller and Registrar Fairly, asssertedly upon the instruction of Mr. McGhie, adamantly refused to check those signatures.

24. Notwithstanding the Board's decision to improperly "set aside" the petitions, on or about July 22, 1998, Director Miller informed Plaintiff Turner that the Board had concluded it's numerical verification process, and determined that the petition contained the signatures of 17,095 qualified registered D.C. voters -- 95 signatures in excess of numerical sufficiency to qualify city-wide, and that the petition had easily garnered signatures of more than 5% of the qualified registered D.C. voters in five of the eight wards (supra, ¶ 6).

25. Director Miller advised Plaintiff the numerical figures were only an "unofficial result," and that final approval of Initiative 59 was dependent upon a "statistical analysis," which involved comparing 800 randomly selected signatures with the signatures on the corresponding voter registration cards.

26. As part of the Random Sampling, in her comparison of signatures of voters against signatures on the corresponding voter registration cards, the Registrar of voters, Registrar Fairly, initially determined that 28 of 800 signatures did not match. When Plaintiff first challenged Registrar Fairly on those 28 signatures, she eventually conceded that 18 of them actually did match.

27. Of the remaining 10 signatures which Registrar Fairly continued to insist did not match, Plaintiff believes that only one (1) is actually questionable as to the identity of the individual in question.

28. On July 29, 1998 Alice Miller declared that, at its meeting on July 5th, Board would reject Initiative 59 because the "statistical analysis" showed only 97% accuracy -- due to the narrow margin (95 signatures city-wide) a 99% accuracy rate was required.

29. The number of matching signatures (supra, ¶¶ 26-27) is crucial. If the statistical analysis had been conducted on the basis of only one, or even several -- rather than ten -- unmatching signatures, Initiative 59 would not have been rejected.

30. Likewise, the small margin (95 signatures city-wide) by which Initiative 59 exceeded its numerical minimum requirement is also significant. The Board tabulated 27,000 signatures, of which, by the Board's own questionable tabulation (infra, ¶¶ 38-49), 17,092 were valid. That is an accuracy rate of 63.3%. Assuming (supra, ¶ 23) that only 33% of the 6,000 signatures on Ms. Robinson's and Mr. Whitehall's petitions are valid, Initiative 59 would qualify for the ballot on November 3, 1998 with over 2,000 extra signatures.

31. At the Board's July 5th meeting Director Miller presented "Petition Verification Results for Initiative Measure #59: 'Legalization of Marijuana for Medical Treatment Initiative of 1998'" (hereinafter "Report"). This Report differed from previous Board Reports, in that a "Table C," previously entitled, "Petition for Initiative Measure #__ Verification of Circulator's Affidavit," had, without explanation, been omitted from Director Miller's July 5th Report.

32. Because Director Miller's Report made no reference to any petitions which had been "set aside," and, therefore there was, and is, nothing in the official record to indicate that any petitions were "set aside" The Board merely accepted the Director's and Registrar's untested representations in support of their argument that Initiative 59 should be rejected, because it had failed the statistical analysis.

33. Both Ms. Robinson and Mr. Whitehall were personally present throughout the entire July 5th meeting Board meeting. Mr. Matt Watson, representing Initiative 59 at the meeting, asserted that both Ms. Robinson and Mr. Whitehall were real people, entitled to be recognized as valid registered D.C. voters at the addresses indicated on the computer tapes purchased by Plaintiff, and informed the Board that they were prepared to answer any questions the Board might wish to ask.

34. Without asking Ms. Robinson or Mr. Whitehall any questions, the Board credited Director Miller and Registrar Fairley's representations and simply ruled that Initiative 59 be rejected because it had failed the statistical analysis.

35. Confident that the Board would recognize the validity of Ms. Robinson's and Mr. Whitehall's petitions, Plaintiff had not been greatly concerned with the accuracy of Defendants' signature verification process. With the Board's apparent refusal to dignify the existence of Ms. Robinson or Mr. Whitehall, however, a couple of hundred signatures improperly rejected during the Board's signature validation process would mean the difference between passing or failing the statistical analysis. Infra, ¶¶ 41, 44.

36. To determine whether, or to what degree, the Board's signature validation process was accurate Plaintiff requested from Registrar Fairley copies of petition sheets with the Board's written annotations. Plaintiff contends those petition sheets were clearly "public record.".

37. Initially, the Registrar refused to provide those petitions. At one point she. insisted that the sheets would only be provided pursuant to a Freedom of Information Act request.

38. Two days later Fairley finally supplied 679 sheets. On August 12th, she supplied an additional 749 sheets -- or a total of 1428 out of the 1815 sheets originally submitted on July 6th (supra. ¶ 11). At Plaintiff's request, the Registrar also supplied a computer print-out of a list of the names of signatories deemed "valid" by the Board's reckoning, all at a cost of $323.40

39. After reviewing the first 679 sheets, Plaintiff submitted to Director Miller approximately 335 names of Initiative 59 signers who, by his review, should have been counted as valid, but who were missing from Board's own computer print-out. Plaintiff requested in writing to review theses signatures with Board staff.

40. On August 12, 1998 Plaintiff and the Registrar together checked approximately 75 of the first 335 disputed signatures. Of those 75 signatures, the Registrar Fairley conceded that approximately 25 signatures, were, indeed, valid.

41. Most notable among the signatures conceded by Registrar Fairley was Steve Michael's, Initiative 59's original sponsor (supra, ¶ 4), who signed in February, (sheet 0001, line 01), died from AIDS in May, and was removed from the rolls in June.

42. Plaintiff's review of the second 749 sheets supplied by the Board (supra, ¶ 36), indicated that an additional 291 signatures had been improperly invalidated.

43. Incorporating by reference ¶¶ 36-40, Plaintiff contends that (a) 626 signatures had been improperly excluded during the Board's signature validation process, (b) out of a random 75 signatures mutually reviewed by Plaintiff and Registrar Fairley, to was agreed that 33% of those signatures had erroneously been invalidated, (c) given a constant 33% of erroneously invalidated signatures out of the 626 identified by Plaintiff, a total of 208 would be found valid, (d) an additional 208 signatures would be sufficient to pass the statistical analysis.

44. Additionally 16 signatures were found to be valid according to the Board's records. However, although those signatures were not marked "Illegible" on the Board's sheets, and notwithstanding the fact that Registrar Fairley agreed that those specific 16 signatures were identifiable as valid voters, Fairley insisted that they would be designated "illegible." Plaintiff contests Fairley's opinion with regard to the illegibility of those sixteen signatures.

45. Additionally two signers, Sherman Scott Sparks, and Ana Marlene Temes, signed with their middle names, and, despite the fact that these middle names appeared in the Board's records, Registrar Fairley ruled those signatures invalid. Plaintiff contests Fairley's opinion with regard to the illegibility of those two signatures.

46. Incorporating by reference ¶¶ 41-43, Plaintiff contends that, rather to agreeing to 25 signatures improperly invalidated, Registrar Fairley actually admits that 48 of the 75 signatures, or 64% were improperly excluded. Given a consistent 64% of 626 signatures, the Board would have improperly excluded at least 400 signatures. Far more than enough to have passed the statistical analysis.

47. Incorporating by reference ¶¶ 37-44, although it is clear that a certain number of signatures were improperly excluded due to errors in the Board's validation process, the precise number is a matter of speculation. There is no need to speculate as to the reason for the present need to speculate.

48. Registrar Fairley agreed to meet with Plaintiff again on August 13, to continue their review of the challenged signatures.

49. On August 13, 1998, when Plaintiff arrived at the Board's office to continue the review as agreed, Fairly informed Plaintiff that she refused to review any of the remaining disputed signatures, on the advice of Mr. Ken McGhie, General Counsel for the Board, since a petition for mandamus -- challenging, discreetly and solely, the rejection of Ms. Robinson's petitions -- is currently pending before DC Superior Court.

50. Plaintiff has endured considerable stress since the death of his beloved friend, Steve Michael. The manner in which the Board has handled the matter of verifying these petitions has caused Plaintiff not only considerable time, effort, and monetary expense, but also a great deal of unmerited emotional anguish.

Respectfully submitted,
___(signed)_________
Wayne Turner
409 H Street NW
Washington, DC 20002
547-9404


CERTIFICATE OF SERVICE

I hereby certify that on this 14th day of August, 1998, a copy of the foregoing PLAINTIFF TURNER'S AFFIDAVIT CONCERNING ISSUES TO BE PRESERVED was hand-delivered to Kenneth J. McGhie, Esq., 441 4th Street, N.W., Washington, D.C. 20001, counsel for defendant D.C. Board of Elections and Ethics.

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