441 4th Street, N.W.
Suite 280
Washington, D.C. 20001

Wednesday, September 2, 1998

Convened, pursuant to notice, at 11:45 a.m.

BEFORE:

BENJAMIN F. WILSON, Chairman

LENORA COLE ALEXANDER, Member

STEPHEN G. CALLAS, Member

ALICE MILLER, ESQ.
Executive Director

KENNETH McGHIE, ESQ.
General Counsel

CECILY COLLIER-MONTGOMERY
Director of Campaign Finance

MS, KATHRYN A. FAIRLEY Registrar of Voters
MR. WAYNE TURNER
MR. JEFFREY GILDENHORNE
MR. WILLIAM THOMAS

AGENDA PAGE

Adoption of Agenda 4

Approval of Minutes 4

Public Matters 5

Statement of Wayne Turner 5

Statement of Jeffrey Gildenhorne 8

Statement of William Thomas 34

Board Matters 62

Executive Director's Report 54

General Counsel's Report/Litigation Status 57

Campaign Finance Report 57

CHAIRMAN WILSON: We call this regular Board Meeting of the District of Columbia Board of Elections and Ethics to Order. We are meeting on Wednesday, June 3, 1998. We are starting at about 11:45 a.m., Suite 280, One Judiciary Square.

We have an agenda today. Is there a motion to adopt our agenda?

MR. CALLAS: I so move, Mr. Chairman.

CHAIRMAN WILSON: Is there a second?

MS. ALEXANDER: I second, Mr. Chairman.

CHAIRMAN WILSON: All in favor, please so indicate by stating aye.

[Chorus of ayes.]

CHAIRMAN WILSON: There are none opposed. Then, we have adopted our agenda.

CHAIRMAN WILSON: We have minutes for meetings for July 1st and 27th, and August 6th. Mr. Callas and I were in attendance at the July 1st meeting. All Board members were in attendance at

Is there a motion to adopt the minutes of those meeting=?

MS. ALEXANDER: I so move, Mr. Chairman.

CHAIRMAN WILSON: Is there a second?

MR. CALLAS: I second.

CHAIRMAN WILSON: All in favor, please so indicate by stating aye.

[Chorus of ayes.]

CHAIRMAN WILSON: None opposed, and those minutes are approved.

CHAIRMAN WILSON: Our third matter are public matters. Are there any public matters that members of the public wish to raise that are not on our agenda currently?

MR. TURNER: I have a public matter.

CHAIRMAN WILSON: Please, go ahead, Mr. Turner.

MR. TURNER: My name is Wayne Turner. I

live at 409 H Street, N.E. in Ward-6. My public matter, Mr. Wilson, is regarding Initiative 59. We are in litigation on the discrete matter of the signature of Ms. Tonya Robinson. However, on August 14th I sent you a letter, sir, which outlined serious flaws in the tabulation process of the sheets that had been accepted by Board staff.

My partner, Steve Michael, who died of AIDS on May 25th--he signed Sheet 01, Line 1, and his signature was not included. We have identified almost 700 signatures of real voters who signed these petitions. We were not given the opportunity to actually scrutinize the marked-up sheets and the accepted signatures until after the Board meeting. I submitted that list to you and had the opportunity to review approximately 75 of these almost 700 signatures with Ms. Kathy Fairley. And she agreed with me that at least one-third of those should have been included of that 75.

It is my belief that if these signatures were actually appropriately included in our tabulation, then we would be on the ballot already.

CHAIRMAN WILSON: Before we do that, Ms. Miller or Mr. McGhie, do either of you have a response to what Mr. Turner is suggesting? I understand that we did take up some of the issues that he is raising at our last meeting.

MS. MILLER: I can address the issue with respect to Steve's signature. The way the system is set up, when someone dies and he was listed as having been--he was indicated on the system as being deceased, then it would not accept a deceased person's signature automatically on the signature count, which is why it was thrown out.

The system did have him as deceased. So, we can't accept automatically someone who was deceased. After we went back through it and Wayne pointed that out, the signature was included.

CHAIRMAN WILSON: It was included?

MS. MILLER: Yes. And I would ask-

MS. MILLER: That's right. You are right. I am not disputing that. I am saying we have accepted it as a signature in the Ward-6 count. That's all I am saying. And I can ask Ms. Fairley to address the particulars that she went over with Mr. Turner, if that is what you want.

CHAIRMAN WILSON: Mr. Gildenhorne, you have a brief statement that you wanted him to make? This is fine.

MR. GILDENHORNE Thank you. Good morning.

CHAIRMAN WILSON: Would you state your name and address for the record, please?

STATEMENT OF JEFFREY GILDENHORNE

MR. GILDENHORNE: Sure. Jeffrey Gildenhorne, 3200 Ellicott Street, N.W., Washington, D.C.

CHAIRMAN WILSON: Please go ahead.

MR. GILDENHORNE: I signed this Initiative

CHAIRMAN WILSON: Okay. As I understand it, Ms. Miller or Mr. McGhie, there was never a question so much about the signature of Mr. Gildenhorne or other individuals. I thought the question related to the address listed for the circulator of that petition. Is that right?

MR. McGHIE: That's correct. But before we continue, I mentioned to Mr. Turner--and I just want to state for the record, and I am also advising the Board that this matter is in litigation. I asked Mr. Turner that if he had any additional questions relating to Initiative 59, because it was in litigation, that he direct it through his attorney, and that his attorney file the proper papers in Court and make the proper amendments to their complaint, and if they are going to make any amendments to their complaint, to include any additional matters that they would be raising now so that they can be properly aired out

I don't think it is appropriate at this time to address these issues when there is ligation pending, because of the simple matter that these statements could be used in Court.

MR. TURNER: With all due respect, it is not the role of D.C. Superior Court to do the job of the D.C. Board of Elections and Ethics. Now, because of shoddy staff work, Seve's signature was thrown out, and it is not up to any judge to go through each sheet and each signature in the list such as that which I have submitted to you and had a preliminary review with Ms. Fairley.

Now, you, Mr. Wilson and other Members of the Board, do have the power and the ability right now to continue the process that we began, Ms. Fairley and I, in going through these almost 700 signatures in dispute, including Mr. Gildenhorne's, including my own partner's, Steve's, including Mr. Greg Rhett who is running for Council. We can resolve this right here and now.

CHAIRMAN WILSON: No. I don't we can

10

resolve it right here and now. Ms. Miller just handed me a copy of a petition for Initiative Measure No. 59, and it is the one, Mr. Gildenhorne, that I believe may have your signature on it.

I notice that his name is not printed to the side of that. Is that correct?

MS. MILLER: It's printed, but it is illegible. That's why it was not accepted. It looks like "F-R-E" and the Gildenhorne. Obviously, is he now. But if you are reading that even the printed part of it, there is no There is no "J" indicated.

CHAIRMAN WILSON: No.

MS. MILLER: There appears to be "F" or whatever, the way the signature appears.

CHAIRMAN WILSON: Oh, no. If we are talking to the left, I would respectfully disagree. That appears to be a long "J" to me on the signature of Mr. Gildenhorne. But I will say, though, under the side which says "printed name, " your name is not printed.

MS. MILLER: That would not be an issue.

It would only be the signature.

CHAIRMAN WILSON: That, to me quite frankly, looks like the commencement of a "J". And I won't criticize your handwriting. Do you see what I mean? That looks like a "J" for Jeffrey.

MS. MILLER: It is illegible. That is why it was not--it was documented as illegible.

CHAIRMAN WILSON: But my question on here, though, is as I recall last time, one of the problems we had was that the address of the circulator--but this is not the issue on this one? Okay, all right. But, again, we are not in a position today to go through 700 signature, Mr. Turner. That is just not going to happen today.

MR. TURNER: Well, when are-we going to be able to do this then, sir? I mean you are the Board. When are we going to do this?

CHAIRMAN WILSON: Mr. Turner, I know you are emotional about this. And I know you have a genuine concern for your Initiative Measure, and I happen to know Mr. Michael. I respected him, and I respect you.

What I am suggesting you is that you brought this to us now. We cannot deal with it right this moment. And Mr. McGhie has said to us that this matter is in litigation.

You are here today without counsel, and I think before we discuss this further--and you have counsel, obviously, which is the reason I know this is in litigation. And so, I don't think it would be appropriate for us to discuss this until or unless your counsel was present. And even then if we are in litigation, that might be a further question.

But here is what I would advise. I would ask that you have your counsel get with Mr. McGhie for them to discuss that. And, Mr. McGhie, if you would make a specific recommendation to the Board as to whether or not this is already--the specific issues are already the subject of litigation. What the Superior Court might say to us is one of two things. To the extent that these are new issues, the Superior Court might say that you must exhaust your administrative remedies, in which case maybe

we need to address the issues here. On the other hand, it may be that these were already discussed at the earlier hearing, which I did not attend, in which case they are before the Court and will be addressed there.

Now, Mr. McGhie, you might already have an opinion about that right now one way or the other. I am not sure.

MR. McGHIE: This particular issue was not discussed at the last Board meeting and is not an issue that is the subject of the complaint that is in court right now.

CHAIRMAN WILSON: All right. Is the issue that Mr. Turner is raising now being raised in a timely fashion? If it is, then we should take care of it.

MR. McGHIE: No, it is not.

CHAIRMAN WILSON: Why isn't it timely?

MR. McGHIE: It is not timely because the matter is now in court, even though it is in court on a different matter. Now, if the court finds in their favor, they could remand it back to the

If the court decides that the Board should count these additional signatures, clearly any of these other additional signatures that he would like to have counted could be counted at that time as well.

CHAIRMAN WILSON: Dr. Alexander, this is entirely a different issue than the one you all addressed before?

MS. ALEXANDER: Yes, it is.

CHAIRMAN WILSON: Okay. Here is what I think we should do. And not having consulted my fellow Board Members or Ms. Miller, if this is brand new issue--and as I understand it, Mr. Turner--well, before I talk about what we should do, Mr. Turner and those working with him have sought to assemble as many as 18,000 signatures. Is that right?

MS. MILLER: 17,995, I believe.

CHAIRMAN WILSON: How many of these are you saying that should have been counted were not counted?

MR. TURNER: We have submitted to you, sir, a list of just under 700 names. Ms. Fairley and I did have the opportunity to review 75 of those almost 700 names. Of those 75 that Ms. Fairley and I sat down together, side-by-side, and reviewed, she agreed with me on approximately one third of that 75 should have been counted.

CHAIRMAN WILSON: Ms. Fairley, can you sit next to Mr. Turner without fighting?

(Laughter.)

MR. TURNER: We get along.

MS. FAIRLEY: We don't fight.

(Laughter.)

CHAIRMAN WILSON: That's good.

MR. TURNER: And I included, sir, in the packet that I submitted to you my notes from our session together.

CHAIRMAN WILSON: I see your notes. Now, Ms. Fairley, would you state your name and title

MS. FAIRLEY: Kathy Fariley, Registrar of Voters.

CHAIRMAN WILSON: All right. Ms. Fairley, did you go through about 75 or so names with Mr. Turner?

MS. FAIRLEY: Yes, I did.

CHAIRMAN WILSON: And how many in your review, approximately, do you agree with him on;

MS. FAIRLEY: Probably about 12.

CHAIRMAN WILSON: 12.

MS. FAIRLEY: Some of theme we had counted. He overlooked them.

CHAIRMAN WILSON: Okay. He didn't realize we had counted. Okay.

MS. FAIRLEY: Were illegible. But prior to certification Wayne and I sat down and looked over the illegible ones that he could not read either. And he went home and he did an address verification, I guess, with his data base and found some other people who are on this list. A lot of those were illegible or maybe there was a change of

I have my records. I would say about 12 of them are the ones that--there were either changes of address or other issues.

CHAIRMAN WILSON: Okay. As I understand, he needed to get a certain number of signatures in five of eight wards?

MS. MILLER: Which he did.

CHAIRMAN WILSON: Which he did. And he met that requirement?

MS. MILLER: He met the requirement for us to go through the process to send it to be--for the random sample, which is five of the eight wards in the city-wide requirement. All of that was met. The problem was when the statistical analysis was done, the petition fell short with 95 percent confidence level that Mr. Bixhorn performs in his formula.

CHAIRMAN WILSON: Is there any chance that if Mr. Turner were to prove that some of these 700 signatures to be correct, that he might then meet the 95 percent confidence level?

CHAIRMAN WILSON: Mr. Bixhorn is our statistical genius?

MS. MILLER: It is a mathematical--he is a statistical mathematician.

MR. TURNER: Mr. Wilson, we were only 95 over under the Board's current tabulation, not including Steve's or any of these almost 700 signatures.

MS. MILLER: I think what Mr. Bixhorn has indicated is that we would probably have to do a wider sample. We would have to go back and pull another 800 cards and do another sample, which could hurt or it could help. It just depends on what the sampling would reflect.

So, there is no way of actually making a determination right now. But if 700 names were

CHAIRMAN WILSON: Ms. Fairley, how long did it take you to go through the 75 for which you say there were about 12 new ones?

MS. FAIRLEY: Maybe a couple of hours.

CHAIRMAN WILSON: A couple of hours. So, presumably, to go through 10 times that many would take about 20 hours, which is about three days. Is that right?

MR. TURNER: (Inaudible)

CHAIRMAN WILSON: Excuse me. I am speaking to Ms. Fairley right now. I am not speeding up Ms. Fairley.

MS. FAIRLEY: Yes.

CHAIRMAN WILSON: Three days. If you could do it faster, you should say. If it takes longer, you should say.

MS. FAIRLEY: It is going to take longer because there is candidate qualifications going on. I can't give him two hours everyday during this

MS. MILLER: I want to add one other thing. And that is Mr. Turner was here and had other people here during the process of the petition being processed. And they were able to watch the work that was going on and raise objections at that time. That was 10 days after the time the petition was filed.

I am not trying to suggest that it can happen, but it was a time for it to happen.

MR. TURNER: Alice, if you don't want this on the ballot, just say so.

MS. MILLER: It has nothing to do with me not wanting it on the ballot. That's not the issue, and you know that, Steve--I mean Wayne. You know that.

MR. TURNER: This is Wayne. Steve's dead.

MS. MILLER: That's not the issue. I am just saying right now the time for doing it has passed. The time for raising objections to the initiative was during the challenge period when the staff was processing the initiative.

CHAIRMAN WILSON: No, not yet. Ms. Miller and Mr. McGhie, what I am asking you though is there is a time period in which one must--an advocate like Mr. Turner must make his arguments. And my only question is not is it convenient for us now, but has that time passed. If it has passed as a matter of law, then he doesn't get his chance. If it hasn't passed, then he should have his chance. And so, that is what I am asking.

MR. McGHIE: The time has passed as a matter of law. He has 10 days under the statute in order to file an appeal with the Superior Court under Write of Mandamus, and he has filed a claim with the Writ of Mandamus. So, if he wants to raise new issues at this time, he would have to amend that complaint.

CHAIRMAN WILSON: And to add those there.

MR. McGHIE: Add those there.

CHAIRMAN WILSON: Now, all I am asking my people in full public view as a practical matter, what is more convenient for the Board's efforts?

MR. MCGHIE: : I don't even know if the Court will allow the amendments.

CHAIRMAN WILSON: All right. And you did not raise any of these issues the last time, Mr. Turner?

MR. TURNER: Sir, we were not given access to our marked-up sheets, and the computer print-out of the signers of our petitions who had been included in the Board's tabulations I was told that I would have to go through the Freedom of Information Act request until I kicked up a big stink about that.

MS. MILLER: Who told you that?

MR. TURNER: I was finally able to purchase the sheets, our marked-up sheets with the computer print-out, so I could see who signatures were actually included. Now, this was impossible to do during the actual tabulation process, because there were over a dozen tabulators and we could

I had to have the marked-up sheets so that I could go through the marked-up sheets to see which signatures had been thrown out, which ones were illegible, which ones were listed as moved, and compared those two to the signatures that the Board had actually included. And I tell you the shock that I had to find out that Steve's signature was not counted.

And, Mr. Wilson, I implore upon you to consider this fact. That a man died and was appropriately removed from the voter rolls. Our tabulation process was so flawed that because of poor staff work, a staff member did not take the time to see if Steve was alive and a duly registered voter at the time he signed the petition. That should be of grave concern to you and the other members of the Board, that in this democratic process our rights as citizens are being killed, And we raise this.

That's why Kathy Fairley and I sat down together and went through thin initial 75 sheets

MS. FAIRLEY: In fairness to the staff, Steve had a check beside--someone did accept it. The machine did not print it out on the print out. It wars verified as a valid signature.

MR. TURNER: He had two checks-

CHAIRMAN WILSON: I am sorry. We have let you speak. Let's let Ms. Fairley speak.

MS. FAIRLEY: In all fairness to the staff, it had a check mark that we had accepted it.

CHAIRMAN WILSON: That we had or had not?

MS. FAIRLEY: That we had accepted it.

MS. MILLER: The system kicked it out, but that is something we cannot control. It was a systematic problem.

MS. FAIRLEY: No deletions will kick out on the print-out, because we had those signatures-

CHAIRMAN WILSON: So, your point in that the staff had, indeed, given credit for Mr. Michael's signature?

MS. FAIRLEY: Yes.

CHAIRMAN WILSON: Is that right?

CHAIRMAN WILSON: Was that correct, Mr.
Turner?

MR. TURNER: No, it is not correct, because Steve was not included in our final tabulation. And if you will look at the actual sheet that has two checks, it has an "X". Somebody went to that sheet and put an "X".

CHAIRMAN WILSON: I think you are both correct.

MR. TURNER: Our 17,092 signatures that accepted by the Board does not include Steve Michael's signature.

CHAIRMAN WILSON: What happened was that you are saying the final tabulation did not include Mr. Michael's signature, and all of our people were saying yes, you are correct, it had been kicked out. But our people in the course of going through, obviously, were aware of Mr. Michael and knew that he was living at the time and made a check mark to indicate as such. Is that what you are saying, Ms. Fairley?

CHAIRMAN WILSON Hell, it does not appear to me, quite frankly, that this issue was raised at the meeting of--when did the two of you meet at this meeting you are referring to, Mr. Turner?

MR. TURNER: It is on the affidavit.

CHAIRMAN WILSON: See, the problem, quite frankly, is the meeting that you all held, had this been raised, I would not have any problem with dealing with it now was August 6th. This issue was not raised, as I understand it, was after that meeting, August 7th.

It sounds to me like if this is an issue that the court believes you should be allowed to raise, you should amend your complaint, make this point there, and the court will either require us to go back through the process and see if these 700 names make a difference or not.

Now, you made an earlier point. You said there were 12 tabulators. These are Board employees tabulating?

MR. TURNER: They were people that were

MS. MILLER: Bight, I think. No, there was no one brought in to verify the initial petition. It was eight.

CHAIRMAN WILSON Okay. So, they were working at it around to clock to try to get that done. I am not saying around the clock, but regular office hours.

MS. MILLER: Right. There was a set time that they were scheduled to work.

MR. TURNER: And, Mr. Wilson, I made repeated attempts to get the marked-up sheets, but whenever I tried to get my marked-up sheets, I was told I couldn't get the marked-up sheets. I could only get the blanks. And getting a blank sheet doesn't mean anything to me, because I can't tell if that signature was counted or not counted. And I wasn't able to get this information until after the August 5th meeting.

CHAIRMAN WILSON: Well, was it that they were working on these sheets? Sometimes when people are in the process of doing their work they

MR. TURNER: Even after it had been completed, I couldn't get those marked up sheets until I picked up a stink, which was after the Board meeting.

MS. MILLER: I think we worked on this petition up until probably 24 hours before it was certified. So, the work was ongoing-

MR. TURNER: What was certified?

MS. MILLER: Well, the signatures were certified--whatever. Before the Board certified the Initiative count. That's what I am saying. This petition was worked from the day that it was-well, the day after it was filed, up until that point. And it was always within the control of the Board staff.

CHAIRMAN WILSON: Well, I think, Mr. Turner, what we are going to do here, unless I hear different from fellow Board Members, is that we are going to urge you, as you do feel, that this was not handled properly, to raise this as an amendment

MR. TURNER: And, Mr. Wilson, it really concerns me that this Board does not want to assume any responsibility and wants to keep shoving-this off to the courts. We already began this process to look through these Signatures. Why don't you accept the responsibility that is entrusted to you, that you were confirmed by Council to perform, and guarantee that the real people who signed these petitions--even the dead ones--Should have their signatures counted? I shouldn't have to go to court every time to get Steve Michael's signature included on his own damn initiative. That's not what the court is all about.

CHAIRMAN WILSON: No motion. But just one minute, and we are going to give one member of the public to speak, if they like the chance.

But, very simply, again, you have had--I know this is very much an issue of great concern to you, and you have spoken with great emotion and passion on behalf of this initiative and various prior versions of it in the past. You have, as did Mr. Michael and as did others. Again, I don't believe, based upon what I understand what our procedures to be that this is a timely--that you have raised this most recent issue in a timely manner. You should feel free to raise it in your ongoing law suit, which you have chosen to file in Superior Court and amend your complaint to add these issues. At that point the Court will either determine that this was not timely and you can't make that amendment or the Court could well determine that they will remand this to us and say that we must take these issues up

MS. MILLER: We would get another random sample.

CHAIRMAN WILSON: Mathematician to see if we meet the 95 percent requirement. -And so, that is where we are. That is where we are.

Now, the only other thing that occurs to me in retrospect, Ms. Miller indicates that we were actually reviewing these petitions all the way up to within 24 hours of the hearing date. The only other thing we might have done would have been to have had-a different hearing date, which would have given you perhaps more time to review-

MS. MILLER: Well, quite frankly, by statute we only have 30 days to certify it, and we use the whole 30 days. It takes that much time to certify it, to go through the process of reviewing,

MR. TURNER: So, you are not going to include Steve's signature on his own petition? You want me to go to the judge to have Steve's signature included?

CHAIRMAN WILSON: No. Now, see you are finding straw men now. I think we have conceded that Mr. Michael's signature should be on that petition, period. No one is saying otherwise. And Mr. Gildenhorne has come in and said that this is in fact his signature.

I am impressed by the fact that personally you might have one or two other things to do today. You have come down here. -

(Laughter.)

MR. GILDENHORNE: My 60th debate is coming up at 1:00 o'clock.

(Laughter.)

CHAIRMAN WILSON. And you have acknowledged this signature as your own.

CHAIRMAN WILSON: And so, I am prepared- speaking again, without having consulted my fellow Board Members concede that this is Mr. Gildenhorne's signature. So, that i" two.

But what we are also saying to you is as a practical matter, these issues should have been raised on the 6th. When was the Board meeting? the 5th?

MS. MILLER: It was on the 5th.

CHAIRMAN WILSON: Okay. This says we just approved the Board minutes of the 6th. I'm sorry That is a typographical error, like Mr. Turner said. It was the 5th. Like I said, it was the 5th. But that should have been raised on the 5th. And I am not saying that you can't raise it now. You have a loud, strong voice, Mr. Turner, energetic. I am confident that you will raise--not let this die

So, thank you both very much.

MR. GILDENHORNE: Thank you for the to appear before the Board.
opportunity

STATEMENT OF WILLIAM THOMAS

MR. THOMAS: My name is William Thomas, and my address is 1424 12th Street.

CHAIRMAN WILSON: Which direction?

MR. THOMAS: Northwest.

CHAIRMAN WILSON: Yes, sir.

MR. THOMAS: As Mr. McGhie noted, the issue before the court now is discreetly the issue of the one circulator. And from personal experience in the past with other initiatives, when Joe Baxter was the Director of the Board, the way this was handled-

CHAIRMAN WILSON: He was never the Director, but go ahead.

MR. THOMAS: He was the Registrar, I believe, Registrar.

CHAIRMAN WILSON: Right.

MR. THOMAS: The way it was handled then and I don't know. Perhaps the Board in using slower equipment or something these days.

MR. THOMAS: I don't know what the problem is, but before we went to the Board meetings on these other initiatives, we were given an opportunity to challenge, and we didn't have any problems with getting the marked-up sheets. They were considered to be public record, and we had access to them. And then we were able to go back, compare the Board's tabulation against our own tabulation, and then we were able to sit down with the Member of the Board and contest signatures that we felt had been inappropriately disqualified. That has not happened here.

In this case the Board convened before the Initiative 59 campaign had an opportunity to review the Board's tabulation of the signatures. On August 6th- --

CHAIRMAN WILSON: Did you say that on the 5th, though?

MR. THOMAS: Well,- --

MR. THOMAS: I didn't say that. I don't believe it was brought up on the 5th.

CHAIRMAN WILSON: Mr. Thomas, that is in the end. All we are saying to you today--the only thing that we can be certain of are the 75 that Ms. Fairley and Mr. Turner looked at. But all we are saying is had this issue been raised on the 5th, we would have addressed it on the 5th. It would have been a timely issue to address at that time.

And, presumably, it would have been already a part of your complaint. It's in Superior Court, assuming we would have disagreed with you or whatever And all I am suggesting to you now is that you can still raise it. And, quite frankly, I do think we ought to try to figure out a way that we can complete this process earlier enough within the 30 day period that people do have an opportunity to disagree-with our conclusions.

MS. MILLER: I think that's what the

CHAIRMAN WILSON: In this case, that happened on what date?

MS. MILLER: It was three days after it was filed. It was filed on the 6th. So, on the 9th. Beginning on the 9th--was post of July. I'm sorry. Beginning on July 9th, it was posted for a challenge for anyone to come in and review. It was also at that time that the staff was going through the petition and making the initial determination-

CHAIRMAN WILSON: That time being from July 9th to when?

MR. THOMAS: August 5th, I guess it was.

MS. MILLER: The 9th through the 2Oth, because the 19th was on a Sunday. So, it was the 9th through the 20th. That would have been the time to come and observe what was going on. And

MR. TURNER: Yes, we had observers.

MS. MILLER: That were available while the staff was reviewing the petition making a determination on signatures being counted or rejected for whatever reasons. That is the process for the review of the Initiative petition to be reviewed at the same time it is being reviewed by the staff.

CHAIRMAN WILSON: Right.

MS. MILLER: And I believe that happened.

CHAIRMAN WILSON: Right. He said it did. He said we had 12 tabulators. You corrected him and said there were eight. He says he had two observers, and obviously, the two observers did not catch these errors at the time, the alleged errors at the time.

MR. TURNER: These alleged errors. And Ms. Miller said that we were still doing the tabulations up until 24 hours before our hearing. That's why when you talk about the timeliness of

CHAIRMAN WILSON: I don't quite accept that, Mr. Turner, because it sounds to me from what Ms. Miller is describing is your people would have been welcome to be there anytime the tabulators were there. Is that right?

MS. MILLER: That's correct, anytime. From the time they started processing the petition until it was completed.

MR. THOMAS: But the problem with that, Mr. Wilson, is that it is not possible to determine whether or not a name that is invalidated by one of the Board's tabulators was properly invalidated. The only way that can be done is by checking the invalidated signatures against the valid voter roll. And so, that is not something that someone who is standing over the tabulators can do. That's got to be done through a separate process.

Now, if we are talking about the

CHAIRMAN WILSON: Let me address your first point. Ms. Miller or Mr. McGhie, is there a response to the first point?

MS. MILLER: I'm sorry?

CHAIRMAN WILSON Is there a response to the first point?

MS. MILLER: Which was that the tabulators

CHAIRMAN WILSON: His point was that if one of their observers is looking at the work that the tabulator is doing and the tabulator rules out Mr. Gildenhorne's signature or Mr. Michael's signature, how can we be sure whether or not that is Mr. Gildenhorne'- or Mr. Michael's, or anyone else unless we go back and look at the card. And he is saying that our procedure does not give them a practical way to check that.

Is that true or not true?

MR. THOMAS: Can I give you an example?

CHAIRMAN WILSON: No. She has the question.

MR. THOMAS: It's not.

MS. MILLER: That's all we have.

CHAIRMAN WILSON: He says it is not. What is your explanation?

MR. THOMAS: As I explained before with my experience with Joe Baxter, after the Board was done with its tabulation-

MS. MILLER: But they probably finished it- --

MR. THOMAS: May I finish, please? After the Board was done with its tabulation without any problem at all, nothing about Freedom of Information Act, the Board supplied us with copies of their work sheets. We then took those work sheets and compared them to the voter registration list and compiled a list similar to this list of 700 names here, which we challenged.

We then went back to the Board, as Mr. Turner did with Ms. Fairley, sat down and went over and decided which of them--which of the signatures

CHAIRMAN WILSON: He have to cut this short. But, Ms. Miller, if you have a short response to Mr. Thomas?

MS. MILLER: I don't know what the time element was when you had the other initiative. You may have finished it two weeks earlier, which may have given you more time. I don't know.

MR. THOMAS: So, let's forget that special initiative. We went up to the last day.

MS. MILLER: I don't know, Kathy, they would not be given marked-up copies. Maybe you can address that?

MS. FAIRLEY: Except for the fact that we asked for-

MS. MILLER: Was there ever a time when they were requesting marked-up copies that you told them that they could not have it? That's what I need to know.

MS. MILLER: But that was after the process had been completed My question is during the process, were you ever requested--were you ever given a request for marked-up copies while the petition was being processed?

MS. FAIRLEY: No. When I sat down with Wayne prior to the certification while it was being processed--they did not give me a list of names that he-

MR. TURNER: You told me to talk to Ken McGhie to see if--because you didn't know if you were allowed to give us-

MR. THOMAS: I don't think this is here or there. The fact is, I believe, if the time frame kicks in on August 5th for our 10 days to challenge the Board's decision-

MS. MILLER: That's not when it kicked in.

CHAIRMAN WILSON. She said it kicked in back in July.

MR. THOMAS: The only problem is the Board didn't make the decision. The decision that we are now challenging wasn't made until August 5th. And so, I don't think that our time frame could have possible kicked in until August 5th.

MS. MILLER: Well, that's when you have your 30 days to challenge-

MR. TURNER: The difference hadn't been l accepted or denied.

MR. THOMAS: You hadn't disqualified any l of these 700 signatures until August 5th.

MS. MILLER: That's where the proceedings come in with court--our statute. And Ken, you can correct me, if I am wrong. But it is my understanding that after the Board makes a determination, then it goes to court.

CHAIRMAN WILSON: Here is what it sounds like to me, and I am saying this to everyone. I don't think we are going to get this resolved to

If, on the other hand, you have been checking us as you go along, if you will, the only ones that you, presumably, are not current on or whatever was handled on that last day. If I can put it another way, as Ms. Fairley and the tabulators finished one sheet, presumably you should be taking that sheet and comparing it to a signature on file or whatever, or seeing if this person that we have marked as deceased was in fact living or whatever. And that's how you keep up with it on a current basis.

So, it seems to me you are-

MR. TURNER: Mr. Wilson, we turned in 1,815 sheets. There were eight tabulators, and we were only allowed by statute two observers. And

MR. THOMAS: But that is not--because even though there might be a better process to do this, the way it stands now is we are not complaining about anything. We are saying that the Board made a decision on August 5th. On August 6th, Mr. Turner went to get the petitions. He finally got the petitions--I believe it was on the 7th or the 8th.

We then ran a check on them, and on, I think, on the 12th he met with Ms. Fairley, and they began to go over these signatures that we were challenging.

CHAIRMAN WILSON: Mr. Thomas, here is what I am telling you, though. It is this. That as a practical matter, based upon the time constraints set out in the statute, I don't see how this could have been avoided unless miraculously our people could have--tabulators could have completed their work two weeks before the 5th.

MR. TURNER: Exactly.

MR. TURNER: It can't. That's why we are here now. That's why I sat down with Ms. Fairley on the 12th.

(Simultaneous discussions.)

CHAIRMAN WILSON: Excuse me. Stop. Stop.

MR. TURNER: Go ahead, Tom.

CHAIRMAN WILSON: No, no. Not go ahead, Tom. I'm speaking, and I decide who gets to speak and when, and then when you are Chairman, you decide who speaks and when. That's the only benefit that I have here.

(Laughter.)

CHAIRMAN WILSON: And I appreciate the laughter.

Ms. Miller, we need you to go now.

MS. MILLER: I have five minutes.

CHAIRMAN WILSON: You have five minutes. All right. Then, you go when you want to go.

(Laughter.)

And there is an alternative for you. It is to add this at this point and time. I would like us to look and see what, if anything, we can do in the future, because I do appreciate the fact that two people cannot necessarily do what eight people can do. On the other hand, presumably on most signatures we are approving most. And so, the ones that you want to argue about typically are those that we have thrown out. And even there some of those you would probably concede should be thrown out.

So, I can also see why you don't necessarily have to have the same number of people that we have. But under the rules that exist and under this practical situation, in light of the

other work the Board has done, I don't see how we could have handled it differently. So, I urge you to appeal our decision in effect by amending your complaint, and we will deal with it at that time.

In the meantime, I would ask Ms. Miller and Ms. Fairley to think about from a practical standpoint when we come up to another petition, what can we do on our schedule, and how much should we amend our statute or regulations to try to make certain that this time business is less of an issue.

I am sorry. We have to stop now.

MR. THOMAS: I don't think you understand. It is not the time issue. The thing is that these 700 signatures--they had actually begun over these 700 signatures-

CHAIRMAN WILSON: After the 5th.

MR. THOMAS: Well within the 10-day period after the 5th.

CHAIRMAN WILSON: But Ms. Miller is saying there is no 10-day period after the 5th.

MS. MILLER: There is no 10-day period

MR. TURNER: It didn't--though--Kathy Fairley sat down with me. You agreed. You sat over my shoulders and-

MR. THOMAS: Please. I think that the time period--I think the regulations says that a challenge to a decision of the Board needs to be made within 10 days. And so, the challenge that we are making was to the decision made by the Board on August 5th, not when the petition was turned in.

MR. McGHIE: The 10 days that you are referring to, you have 10 days to appeal the Board's decision to the Superior Court for a Writ of Mandamus. And after the Board made the decision on the 5th, they began sitting down with Kathy Fairley.

CHAIRMAN WILSON: So, it sounds to me, guite frankly, Mr. Thomas, what your solution would have been was to go to Superior Court for a Writ of Mandamus, not to sit down with Ms. Fairley. I think, if anything, she is to be commended for

MR. THOMAS: I think she was doing her job.

CHAIRMAN WILSON: And I think She does that everyday.

MR. THOMAS: And I think what you are deciding now is that the Board can arbitrarily decide that something is illegible or that something is not, or that someone is invalidated and then a citizen has no recourse to challenge.

CHAIRMAN WILSON: Not arbitrarily. Not arbitrarily. But I will tell you at some point someone has to make those decisions as to whether or not it is illegible, whether or not it is the proper signature. And, as Mr. Turner well knows, we do that, not just on his matters but on others.

MR. THOMAS: There is no way to challenge you .

CHAIRMAN WILSON: I am saying that your challenge is not timely. That is what I am saying before us. I am saying that you can raise it--you could have raised it as part of this Writ of

MR. THOMAS: And one final question.

CHAIRMAN WILSON: No, no, no. No final questions. You had a final point before. We are done on this one now.

MR. THOMAS: Just a question, and then I will give it up. Just answer my question.

CHAIRMAN WILSON: Okay.

MR. THOMAS: When did our time for challenging these signatures run out?

CHAIRMAN WILSON: On the 5th.

MR. THOMAS: On the 5th. All right.

CHAIRMAN WILSON: It ran out on the 5th. Is that correct?

MR. McGHIE: The 5th.

MR. THOMAS: Even though we didn't get it until the 6th. Thank you very much.

MR. THOMAS: So, we have a judicial remedy but no administrative remedy?

CHAIRMAN WILSON: That's what the law says, yes.

MR. THOMAS: Okay. Thank you.

CHAIRMAN WILSON: Thank you. Thank you, Ms. Fairley. Ms. Miller.

EXECUTIVE DIRECTOR'S REPORT

MS. MILLER: I will be brief. I just want to indicate that we are at the point of the schedule of the election cycle where the elections are overlapping, both the September 15th and the November 3rd election. With respect to the September 15th, we are doing absentee voting. The