WAYNE TURNER, )
)
Plaintiff, )
)
v. ) Civil Action No. 0006077-98
) Calendar 9
DISTRICT OF COLUMBIA ) Judge Ellen Segal Huvelle
BOARD OF ELECTIONS ) Next event:
AND ETHICS ) Initial Conference
) November 13, 1998
Defendant. )
Comes now the Defendant, District of Columbia Board of Elections and Ethics by and through its General Counsel, Kenneth J. McGhie, and hereby move pursuant to Superior Ct. Civ. Rule 56 for summary judgment in favor of Defendant and against Plaintiff on the ground that there is no genuine issue as to any material fact as set forth in Defendant's Memorandum of Points and Authorities attached hereto.
Date:
Respectfully submitted,
(signed)
Kenneth J. McGhie #385313
General Counsel
D.C. Board of Elections and Ethics
441 4th Street, NW, #270
Washington, D.C. 20001
202-727-2194
WAYNE TURNER, )
)
Plaintiff, )
)
v. ) Civil Action No. 0006077-98
) Calendar 9
DISTRICT OF COLUMBIA ) Judge Ellen Segal Huvelle
BOARD OF ELECTIONS ) Next event:
AND ETHICS ) Initial Conference
) November 13, 1998
Defendant. )
The District of Columbia Board of Elections and Ethics, Defendant in this action, by undersigned counsel, herein sets forth the Points and Authorities In Support of its Motion filed today.
I. Standard of Review
Summary judgment will be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law." Super. Ct. Civ. R. 56(c); Nader v. de Toledano, 408 A.2d 31, 41 (D.C. 1979), cert. denied, 444 U.S. 1078 (1980) (quoting Rule 56); see Dodek v. CF 16 Corp., 537 A.2d 1086, 1082 (D.C. 1988). Even when evidence is undisputed, summary judgment is inappropriate if different inferences can be drawn therefrom. International Underwriters, Inc. v. Boyle, 365 A.2d 779, 784 (D.C. 1991).
The burden is on the moving party to demonstrate the absence of any genuine issue of material fact. McCoy v. Quadrangle Dev. Corp., 470 A.2d 1256, 1259 (D.C. 1983). If the movant satisfies this burden, the burden shifts to the plaintiff to demonstrate that an issue of material fact exists. Tire and Beard v. Goodyear Rubber Co., 587 A.2d 195, 198 (D.C. 1991).
II. The Statutory Scheme
The initiative right was granted to the citizens of the District of Columbia by the 1978 Charter Amendments, D.C. Code, §1-281. It empowers the electors to propose laws, "except laws appropriating funds," and to "present such proposed laws directly to the registered qualified electors of the District of Columbia for their approval or disapproval." Id. "The initiative power, therefore, is a power of direct legislation' by the electorate." Convention Center Referendum Committee v. District of Columbia Board of Elections and Ethics, 441 A.2d 889, 896 (D.C. 1981) (en bane), quoting, 5 E. McQullin, The Law of Municipal Corporations
§ 16.49, 275 (3d rev. 1996 ed.). Accordingly, if the voters approve an initiative, it becomes an "act of the Council," D.C. Code §1-285, which becomes law if it survives the applicable Congressional review, pursuant to D.C. Code § 1-123(c).
The Charter Amendment, however, was not self-executing. Convention Center Referendum Committee v. D.C. Board of Elections and Ethics, 399 A.2d 550, 552-53 (D.C. App. 1979). Rather, it directed the City Council to "adopt such acts as are necessary to
carry out the purpose of [the] amendment." D.C. Code § 1-1320 ("the Act"), in 1979.
The Act provides that any registered qualified elector may propose an initiative for placement on the ballot by submitting to the Board of Elections and Ethics the text of the measure, a summary statement, and a short title. D.C., Code § 1-1320(a)(1). Upon receipt of the measure, the Board must determine whether the initiative is a "proper subject," i.e. whether it is a ''law appropriating funds," and whether it violates any of the additional limitations placed upon it by the Act. D.C. Code § 11320(b).
The Act further provides that if the Board refuses to accept an initiative, the proponent of the measure may file an action in Superior Court within ten days "to compel the Board to accept such measure," and the Superior Court "shall expedite consideration of the matter." Id. § 1-1320(b)(3). After it is determined that the measure is a proper subject, the Board has twenty days to "prepare a true and impartial summary statement" that expresses the "purpose of the measure," along with a "short title" that will allow the voters to readily identify it when it appears on the ballot. D.C. Code § 1-1320(c)(3).
Within five days of proposing the short title, summary statement, and legislative form, the Board must notify the proposer, and publish the language in the D.C. Register. D.C. Code § 1-1320(d). Any registered qualified elector who objects to the summary statement, short title, or legislative form, has
ten days to seek review in Superior Court "stating objections and requesting appropriate changes." D.C. Code § 1-1320(e). The Superior Court must expedite consideration of this matter as well. Id. Pursuant to this command, the trial court typically resolves such cases within a few days to ensure that the proponent of the initiative will have an opportunity to have the measure placed on the next available ballot. 1
Once the summary statement, short title, and legislative form have "been established," the final language is certified by the Board, D.C. Code § 1-1320(f), and the proponent is allowed 180 days to circulate petitions among the electorate in an effort to obtain the requisite number of signatures to qualify the measure for placement on a ballot. D.C. Code § 1-1320(g). The proposer must secure the valid signatures of 5% of the registered electors citywide and 5% of those registered in at least 5 of the 8 election wards, based on the published registration totals in effect 30 days before the petition was filed. D.C. Code § 1282(a). Once the Board certifies that the proponent has obtained adequate signatures, it "shall conduct an election on an initiative measure at the next primary, general, or city-wide special election held at least 90 days after the date on which the measure has been certified as qualified to appear on the
[1 See, e.g., Banks v. Board of Elections and Ethics, No. CAO 4057-85 (June 15, 1985) (challenge to summary statement for rent control referendum); Danneman v. Board of Elections and Ethics, No. 6216-86 (August 29, 1986) (challenge to summary statement for bottle bill initiative).]
ballot." D.C. Code § 1-1320(p).
III. Discussion
The gravamen of Plaintiff's argument is whether the Board improperly excluded the petition sheets of circulator Tanya Robinson for having stated in her Circulator's Affidavit of Certification, an address which was different from her address of residence, as reflected in the Board's records.
Plaintiff contends that if the Board had not excluded the petition sheets submitted by Ms. Robinson, which contained approximately 4,641 signatures, the initiative petition would have passed the random sample test at the citywide level and have qualified for the ballot.
A. D.C. Code @ 1-1320(k)(1)(E) Precludes the Board From Accepting any Petitions Circulated by Persons who were not Qualified Registered Electors.
D.C. Code §1-1320 (k)(1)(E) states in pertinent part:
"Upon submission of an initiative or referendum petition by the proposer to the Board, the Board shall refuse to accept the petition upon any of the following grounds:(E) The petition was circulated by persons who were not qualified registered electors of the District of Columbia pursuant to subsection (h) of this section." (Emphasis added)
The term "qualified registered elector" is defined as a registered voter who resides at the address listed on the Board's records. D.C. Code §1-1302(21). Accordingly, the statute requires that the circulators state in their affidavit, under penalties of perjury, the residence address of the circulator,
giving the street and number. D.C. Code §1-1320(h)(2)2 The requirement that the circulator provide their current residence address on their certificate is also clearly stated in the Board's regulations. 3 DCMR 1003.6(b) 3
Despite the clear direction in the statute and regulations that a circulator must state their current residence address, the plaintiff nevertheless believes that Tanya Robinson is in compliance with the statute having provided the Board with her mailing address instead of her residence address in her Circulator's Affidavit (Exhibit A). Ms. Robinson has, in fact, vacillated back and forth in several affidavits, several of which were sworn under penalty of perjury, as to her actual residence address.
How is the Board suppose to determine where Ms. Robinson is residing when Ms. Robinson can't decide where she is residing?
[2 D.C. Code §1-1320(h)(2) states:
(h) Each petition sheet for an initiative or referendum measure shall contain an affidavit, made under penalty of perjury, in a form determined by the Board and signed by the circulator of that petition which contains the following: (2) The residence address of the circulator, giving the street number;]
[3 § 3 DCMR 1003.(6) states:
Each signature sheet shall bear on the back a certificate, to be signed by the person circulating the sheet and made under penalties of perjury, which contains the following information:(b) The residence address of the circulator, giving the street and number.]
According to the Board's records Ms. Robinson executed a change of address on December 30, 1997 (Exhibit B). That address change was received by the Board on January 6, 1998. The change indicated that her new residence address was 1000 7th Street, N.W. No subsequent address changes were received or have been alleged to have been filed with the Board. By statute, therefore, the Board was required to exclude her petition sheets because she stated, in a sworn affidavit, that she was residing at 1250 Owens Pl. N.E., which was a residence address not listed on the Board's records for Tanya Robinson. 4 In fact, Ms. Robinson again, one month later, stated to the Board, by way of an Affidavit dated July 20, 1998, that her permanent residence, currently, and at the time she was circulating the petition, was 1250 Owens Pl., NE. (See Exhibit C.) However, now, four weeks later, Plaintiff alleges in his complaint that 1250 Owens Place, NE was only her mailing address and she has always resided at 1000 7th Street, NW. Ms. Robinson, over the course of eight months, as illustrated by the following chart, has consistently gone back and forth in her statements with respect to her residence, depending on what she believes is required in order to have her petition sheets counted.
[4 "The Board's record showed seven Tanya Robinsons and one T. Robinson, none of which had a residence address of 1250 Owens Pl., N.E.]
| Date | Residence Address | Document |
| 09/12/95 | 1250 Owens Pl., NE | BOEE Change of address card |
| 12/30/97 |
Mt. Vernon's women's Shelter 5 |
BOEE Change of address card |
| 06/23/98 | 1250 Owens Pl., NE | Circulator's Affidavit |
| 07/21/98 | 1250 Owens Pl., NE |
Affidavit of Tanya Robinson |
| 08/10/98 | 1000 7th Street, NW | Complaint |
The electoral process operates on the principle of establishing the specific connection through a residence address of each elector to a given voting precinct, election ward, and single member district. This nexus determines where an individual must vote and what specific offices he or she is eligible to vote (or nominate) for. It is formally established for the purposes of participating in the electoral process through the action of registering to vote - and is perpetuated through the various requirements for maintaining current voter registration addresses.
In the case of petitions, this requirement is essential to enable the Board to readily identify registered voters, to determine their eligibility to nominate for particular District offices, and to calculate ward distribution requirements for ballot measure petitions. A single, logical standard is applied
____________________
[5 On July 6, 1998, Tanya Robinson's residence address, as reflected in the Board's records, was still 1000 7th Street, N.W.
in all petition verification procedures with respect to having a current address: the signer must be currently registered to vote at the address on the petition and not suspended from the roll at the time the petition is signed. The Board's regulations embody this standard. See 3 DCMR 1607.6.
B. Plaintiff's Suggested Relief has Been Addressed by the D.C. Court of Appeals and Rejected.
The D.C. Court of Appeals has reviewed this issue and determined that the Board's process needs to be streamlined. Orange v. District of Columbia Board of Elections and Ethics, 629
A.2d 565 (D.C. App. 1993), the Court found that the statutory prescribed procedure of matching the address to the Board's voter registration records with the address stated in the nominating petition was the most equitable, efficient and a cost effective way to determine whether an individual was a registered qualified elector.
In Orange, a potential candidate for the position of Chairperson of the Council, challenged the decision of the Board to invalidate signatures representing names on his petition which matched a name on the voter roll, but whose accompanying addresses did not match the address of the person on the Board's records. Hence, the Court stressed the importance of having a reasonable statutory procedure to quickly and efficiently determine whether an individual was a registered qualified elector. Although Orange involved a nominating petition and not an initiative petition, the requirements are nevertheless the same for verifying qualified electors. D.C. Code §1-1312(o)(3)
states:
"For the purpose of verifying a signature on any petition filed pursuant to this section, the Board shall first determine that the address on the petition is the same as the residence shown on the signer's voter registration record. If the address is different, the signature shall not be counted as valid unless the Board's records show that the person was registered to vote from the address listed on the petition at the time the person signed the petition."
Thus, recognizing the short turnaround period which theBoard has in which to verify a petition the Court stated:
Indeed, the very reason §1-1312(o)(3) was enacted was the Board's inability otherwise, within the narrow time limit for validating challenged petitions, see §1312 (0)(2), to determine efficiently whether a name and address among the potential thousands on a nominating petition represents an actual registered voter. See Harvey, supra note 1, 581 A.2d at 758. Orange supra at 578.
In addition, Orange, like the Plaintiff here, requested that the Court direct the Board to do more than simply match addresses. The Plaintiff in Orange, among other things, suggested that the Board accept testimony or affidavits from challenged signers with respect to their residence address. The Court in response stated:
The statute (§ 1-1312(o)(3)) ... is rational. It is obviously designed to prevent election fraud by giving a candidate's challengers and the Board a simple, relatively inexpensive, yet reasonably accurate way of determining whether signatures belong to registered voters. While other methods may be equally accurate, they are substantially more burdensome... In sum, to require election officials to do more than compare names against registration lists and other Board records would be to saddle them with tasks and costs that the Constitution does not require them to bear. Orange supra at 581.
Thus, the Court of Appeals has already directly addressed the Plaintiff's first argument and it has been rejected.
C. There is a Compelling State Interest and Both the Statute and Regulations Require a Current Address on the Board's Records.
With respect to Plaintiff's other argument, that the circulator's affidavit does not specify which address must be stated, this too is without merit. Plaintiff argues that because the Board's records reflect both a residence and a mailing address Ms. Robinson could have used either address because the circulator's affidavit only states below the address line the words "Address incl. ZIP Code." Plaintiff ignores that both the statute, D.C. Code §1-1320, and Regulation, 3 DCMR 1003.6(b), both specifically state that the circulator must provide "the residence address of the circulator, giving the street and number." See D.C. Code §1-1320(h)(2) and DCMR 1003.6(6) pg. 6, fn. 2 and 3.
Both the statute and regulation are clear and unambiguous, the circulators must provide in their affidavit their residence address. The typical mailing address which the Board receives is generally a P.O. Box number. It is also not unusual to receive a mailing address that is in a different ward from the residence address. There are also hundreds of mailing addresses for military, students and federal employees that are not even in the District of Columbia or the United States. To allow circulators and other petition signers to use their mailing address because it appears on the Board's records, does nothing but further
complicate a process which the Court of Appeals has stated should be done as quickly, efficiently and cost effectively as possible.
For example, there are over 100 Mary Johnsons on the Board's records. If the address on the petition does not square with the Board's records, the Board could not confirm the identity of which of the scores of Mary Johnsons, signed the petition.
In the current situation, there are a total of seven Tanya Robinson and one T. Robinson on the Board's record. Which one of the Robinson's would the Board determine to be correct if the residence addresses do not match? Under Plaintiff's suggestion, the Board would have had to evaluate the registration cards for every Tanya Robinson to see if they also provided a mailing address which may correspond with the address on the affidavit. Having the Board inquire beyond what is stated in the petition would create havoc with the process. Plaintiff's suggested relief is unreasonable and contrary to the District's statutory and regulatory scheme for initiative measures.
Once again, both the statute and regulation are clear and unambiguous. In order to efficiently process petitions containing thousands of signatures in a short period of time the Board must not be burdened with looking beyond what is stated in the four corners of the registration card and the petition sheet.
Because there is such a compelling state interest for the voter's address to be currently valid on the Board's records, there are companion statutes and regulations to apprise registered voters, which includes petition circulators, of the
need to maintain a current address with the Board.
D.C. Code §1-1311(i)(2) mandates that a voter notify the Board, in writing, within 30 days of a change of address.
In addition, D.C. Code §1-1306(a)(14) expressly grants the Board authority "... to establish criteria to determine the validity of signatures on petitions ..." The Board has validly promulgated regulations pertaining to the initiative process. They are codified as 3 DCMR Chapter 10 (1994). The verification sections of these regulations are contained in 3 DCMR 1007. The Board even has a step by step guideline manual entitled "Standard Procedures for Verification of Initiative/Referendum and Recall Petitions to ensure that the process does not vary among its employees and that the same criteria is used for the petition review process. (See Exhibit D.)
D. The Mistake in Question Was Not Excusable
Plaintiff also allege that if the circulator, Tanya Robinson mistakenly put the wrong address on the affidavit, it should be excused as an honest mistake and her petition sheets should be counted.
Here, the Board not only determined that it was not an excusable mistake, but considered whether Ms. Robinson may have committed perjury. Ms. Robinson admittedly stated in her July 20, 1998 Affidavit (Exhibit C) that she merely provided in her Circulator's Affidavit, the residence address which she thought appeared in the Board's record as opposed to where she was in fact residing. Ms. Robinson stated that she verified her
residence address with a list provided by the Board labeled "current as of January 13, 1998. " This list reflected her family's home at 1250 Owens Place, N.E. as her residence address. Ms. Robinson then states that she consequently identified her address as 1250 Owens Place, N.E., even though she knew that she had previously filed a change of address with the Board, indicating 1000 7th Street, N.W. as her residence address.
Ms. Robinson, therefore, freely admits that she had indicated the wrong address in her Circulator's Affidavit because she wanted the addresses to match. Now that Ms. Robinson realizes that she was using an old registration list, which did not reflect her December 30, 1997 change of address, she wants to state that she was in fact, residing at 1000 7th Street, N.W. when she circulated the petition.
It thus becomes clear that Ms. Robinson is willing to state that she was residing at whatever address she believes necessary in order to have her petitions counted. This is further exemplified by the fact that on at least one of her Circulator's Affidavits and on her July 21, 1998 Affidavit (Exhibit C), she states her address as "1250 Owens Place, N.E. OR 1000 7th Street, N.W." For purposes of verifying a petition and for election purposes in general, an individual can only have one residence address.
Therefore, this is not an honest mistake by a circulator who was confused as to whether or not she could use her mailing address or residence address. This was a contemplated decision
to use whatever address Ms. Robinson thought was necessary to have her petitions counted. The only mistake she made was using an old registration list to verify her address.
The Board's registration list is updated every month as of the last day of the month. Ms. Robinson's change of address dated December 30, 1997 was received and processed by the Board on January 6, 1998. Therefore, the list that Ms. Robinson used to verify her residence address, would have only been current as of December 31, 1997 and not have shown Ms. Robinson's change of address processed on January 6, 1998.
Additionally, the Plaintiff had the opportunity to check the Board's records before he filed his petition to confirm that he had sufficient valid signatures of persons whose addresses matched the Boards current records. Conversely, he could have checked the Board's records to find out if any of those persons had actually filed a change of address at the time the petition was signed -including Tanya Robinson. Prior to filing, had Plaintiff utilized the then current Board records, he too would have discovered the disparity with the addresses in time to obtain additional signatures of "duly registered" persons before filing the petition. 6
E. Inclusion of the Petition Sheets Would Not Guarantee Ballot Access.
Plaintiff can only speculate that their petition would
[6 The Plaintiff also filed the petition approximately 30 days prior to the 180 circulation deadline. Plaintiff arguably could have used the additional month to verify registration or collect additional signatures.]
qualify for ballot access if the petition sheets submitted by Ms. Robinson are counted. First, all of the petition signers' registration would have to be checked to determine if they are validly registered. Once a new number of verified registrants is determined, a new random sample of signatures must be provided and compared. This would result in a new validity rate which could be better or worse for the Plaintiff depending on whether a significant number of the new included signatures are invalid. Therefore, the petition could still be rejected for having less than the required 95% confidence of valid signatures.
This Court should, therefore, not force the Board to deviate from its established practice, approved by the Court of Appeals in the Orange decision, on the mere speculation that if there is a sufficient number of valid registrants, whose address on the petition matches the address on the Board's record, and if a new random sample results in an improved validity rate, and if a 95% sufficiency of valid signatures can be achieved at the citywide level, their petition would then arguably, be qualified to appear on the ballot.
IV. Conclusion
The Board properly rejected the Initiative Measure No. 59 petition as insufficient, in accordance with D.C. Code §11320(o)(1) because it did not contain a sufficient number of valid signatures of duly qualified electors of the District of Columbia. In addition, the Board properly excluded the petition sheets submitted by circulator Tanya Robinson pursuant to D.C.
Code §1-1320 (k)(1)(f) based on the fact that the stated address of the circulator in her affidavit was different from the residence address in the Board's record.
The integrity of the process requires that a comparison and validation of each petitioner's name and address be against the previously verified information contained in the Board's registration records. This positive match and systematic comparison is essential to assure the integrity of the process, which enables the Board to administer and otherwise unmanageable process both with respect to nominating petitions and petitions for ballot measures.
For the reasons stated above, the Board respectfully moves that Defendant's Motion for Summary Judgment be granted.
Dated: August 19, 1998
Respectfully submitted,
(signed)
Kenneth J. McGhie #385313
Attorney for Defendant
D.C. Board of Elections and Ethics
441 4th Street, NW, Room 270
Washington, DC 20001
I hereby certify that a copy of the Motion for Summary Judgment was hand delivered this 19th day of August, 1998 to:
Alisa A. Wilkins, Esq.
Law Offices
Gaffney & Schember, P.C.
1666 Connecticut Ave., NW Suite 225
Washington, DC 20009
Matthew S. Watson, Esq.
1701 Q Street, NW
Washington, DC 20009
(signed) K J McGhie
Kenneth J. McGhie, Esq.