SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
Civil Division

WAYNE TURNER,
Plaintiff,
v.                                   C.A. No. 98CA-006077
                                     Calendar 9
DISTRICT OF COLUMBIA                 Judge Ellen Segal Huvelle
BOARD OF ELECTIONS                   Event:
AND ETHICS                           Conference
                                     November 13, 1998
Defendant.                           (EXPEDITED CONSIDERATION REQUESTED)

PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendant has moved for Summary Judgement in this matter relying principally on the case of Orange v. District of Columbia Board of Elections and Ethics, 629 A.2d 575 (D.C. App. 1993). The reliance on this case is not well founded. Although the decision in Orange considered whether the signatures of petition signers who listed an address not in the Board of Elections records should be counted as valid petition signatures, the signatures in question in Orange were not of the same character as the signature in question in the instant matter.

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Two types of signatures appear on a petition for placement on the ballot of either a candidate or initiative. The first type are the signatures are of registered voters petitioning to place the initiative on the ballot. In the instant case, the signatures of a minimum of nearly 17,000 voters are necessary to place the initiative on the ballot. The second type of signature on a petition is that of the circulator of the petition sheets. Each petition sheet contains a maximum of 20 petition signatures. A single solicitor may submit numerous petition sheets. Indeed, in the instant matter. the 269 petition sheets were submitted by Tanya Robinson and rejected by the Board.

The signatures in Orange were those of individual signers of the petition. This case involves the signature of the petition circulator.

The Court of Appeals decision in Orange explicitly based its decision on a specific statutory section dealing with petition signatures, not the circulator signature. The legislative history, which the Court noted, of the statutory section relied upon, makes clear that the Council understood and recognized the difference.

In note 1, at page 577, the Court observed:

The Harvey case involved invalidation of signatures, both because an incorrect address was given for the petition signers, as was the situation in the Orange decision as well as refusal to count entire petitions because the circulator of the petition page was not a registered voter. The Court of Appeals in Harvey found against the Board of Elections on both issues. As noted by the Court, the Council responded to the Court decision by adding §1-1312(o)(3) to reverse the Court decision with

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regard to individual petition signers. The added section dealt solely with that portion of the Court's decision concerning petition signatures.

Clearly, the Council was aware of both prongs of the Harvey decision, but apparently determined to amend the statutory language only with regard to individual petitioner signatures. 1/ The holding in Harvey as to the identification of the circulator remains the law of the District of Columbia. In the Harvey case itself. the Court was of a view that an initiative petition sheet could be rejected only if the circulator was not a registered voter. There is no dispute in this matter that Tanya Robinson is a registered voter. Joint Statement ¶14. The issue presented in this matter is whether or not a petition sheet may be rejected if a mailing, as opposed to a residence address is listed on the petition for the circulator. The Orange decision has no bearing on this question because it dealt solely with individual petitioner signatures and the amended statutory language dealing exclusively with such signatures.

The policy of providing for citizen initiatives demonstrates a policy to expand, rather than diminish the franchise of District citizens. This policy dictates that the individual petition signatures should be considered differently than the circulator's identification. Invalidation of a petition signature invalidates only the signature of the individual signer, it does not have any effect on the

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1/ Defendant relies on D.C. Code §1-1320(h)(2). D.C. Law 9-75. which added §11312(o)(3) reversing the first part of the Harvey decision, also made unrelated changes in subsections (e) and (q) of §1-1320, but did not make any change in subsection (h). Had the Council intended to reverse the second prong of the Harvey decision it certainly would have done so in this legislation.

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rights of other persons. The individual signer may be held responsible for properly reporting his or her own address. The signature in question in the instant case is not that of an individual voter who signed the petition, but of the circulator of the petition. To invalidate petition pages based on the identification of the circulator invalidates the signatures of all persons who signed on the petition sheet, none of whom have any control over the information given by the circulator. The difference in signature and information for individual signers and the circulator is readily apparent on the face of each petition page. One such page is presented as Exhibit A to Defendant's motion.

The Board's argument in Part C of its Memorandum, page 11, et. seq. as to administrative necessity is similarly not well taken. The signatures of the nature of those considered in Orange appear in the numbered boxes at the top of the page. The signature in question in this matter is the signature of the Circulator at the bottom of the page. The nature of the signature of the circulator as being different from the ordinary petition signature is reflected by the information required on the form itself. The individual signer is asked for name and addressed. The circulator is required to enter, in addition, his or her unique ' Voter Registration Number." As the court itself is undoubtedly aware, that registration number is not commonly recalled by even a quite conscientious voter, but must in general be checked with the Board records. The requirement of this unique identifying number for the circulator alone belies the administrative convenience argument made by the Board in support of its motion. The Board states:

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That contention is clearly not supported. In the instant case the Board had only to look to one, and only one registration record. That record is that attached to the Defendant's motion as Exhibit B. Regardless of the address listed by Ms. Robinson on the petitions, as required by the petition form, Ms. Robinson's Voter Registration Number, 'OOR083457" appears adjacent to Ms. Robinson's name on the petition form (Attachment A) and on the single proper registration card (Attachment B). The unique Voter Registration Number, by definition, exists only on the proper Tanya Robinson registration card and on no other. It is specious to argue, as the Defendant does, that the Tanya Robinson in question could potentially be on more than one registration card. This is clearly distinct from the issue considered by the Court on Orange. In Orange. individual petition signer's signatures were in quest ion, not that of the circulator. Since very few registered voters would be familiar with their registration numbers, the individual signers are not requested to

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indicate their registration numbers. In the absence of the registration number, as was discussed in Orange, the Board must rely on address to distinguish between registered voters of the same name. As noted, this is not relevant with regard to the circulator, since the unique registration number is required to be provided, and in fact was in the instant matter.

The Defendant seems to fault the solicitor, Tanya Robinson, for having moved within the District and complied with regulations requiring the filing of a change of address. What the Board proves, however, is that at all relevant times, Ms. Robinson was a resident of the District of Columbia and registered to vote with the Board. Defendant's Memorandum p.8. The sole objection which the Board makes to the petitions circulated by Ms. Robinson is that the ' address" listed on the sheets was her mailing address, and not her residence" address listed on the Board's records. 2/ The Defendant contends that failure to indicate the 'residence address' is fatal to acceptance of the petitions, even though it does not question that Ms. Robinson was a qualified voter.

The uncertainty as to whether the "residence address" or "mailing address" is to be placed on the petition was created by the Board itself. Although the Board accurately quotes the statute and regulations as requiring "residence address," Defendant's Memorandum of Points and Authorities footnotes 2 and 3, page 6, the language of the Board's forms does not follow this clear language. As can be seen on the registration card the Board does not request 'residence address" as stated in

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2/ It should be noted that Ms. Robinson attempted to conform with the Board's records by listing on the petition the address which appeared on the printout obtained by the proponent on January 13, 1998.

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the statute, but rather "Address Where You Live." 3/ (Defendant's Attach attachment B) To further confuse matters, the petition form does not request either ' residence address'- as stated in the statute and regulations, or "Address Where You Live," as identified on the Board issued Registration Card, but rather merely requests " Address, incl. ZIP Code." In relying on the statutory and regulatory language to make the circulators "residence address" mandatory, the Board requires a conscientious petition circulator to separately check the statute and municipal regulations to avoid being misinstructed by the petition forms provided by the Board. The Board cannot place such a burden on citizens. If the Board is to mandate a technical 'residence" address as reflected in the statute in order to circulate petitions, it must not set a trap for the unwary citizen by using ambiguous language on its own forms.

The Memorandum lastly states that Inclusion of the Petition Sheets Would Not Guarantee Ballot Access. Defendant's Memorandum, Part E, pp. 15-16. This is clearly a situation similar to the defendant who, having murdered both of his parents, pleads for mercy because he is an orphan. In the instant case, the Board has refused to process the petition signatures and now claims that

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3 Indeed, the sworn "Voter Declaration" states "I live in the District of Columbia at the address (#3) above" This distinction even seems to confuse the Board in its own Memorandum. The Board states that "There are hundreds of mailing addresses for military, students and federal employees that are not even in the District of Columbia or the United States. It is not clear how a member of the military or student would fill out these forms. A college student in a distant state clearly "lives" at school outside of the District of Columbia, but may remain a resident of the District.

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refusal cannot be questioned because there is no evidence as to the result if the petitions had been processed. Plaintiff has not requested that the Court order placement of the initiative on the ballot. but rather that the Board accept and process the petition sheets submitted by Tanya Robinson. Only if the Board determines that there are sufficient signatures including the petition sheets erroneously rejected will the initiative be placed on the ballot. The Board has now had these petition sheets for more than a month and could have completed its processing in order to advise the Court of the effect of accepting the petitions.

Conclusion

For the reasons stated above and the Memorandum of Points and Authorities submitted with Plaintilf's Motion for Summary Judgment, Plaintiff respectfully requests that this Court deny Defendant's Motion for Summary Judgment and grant Plaintiff's Motion for Summary Judgment.

 

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Certificate of Service

 

This is to certify that the foregoing Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant's Motion for Summary Judgment was hand-delivered this 25th day of August 1995 to: