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 Court has before it Defendant's Motion for Summary Judgment plaintiff's opposition thereto, and Plaintiff's Expedited Motion for Summary Judgment.
This case arises from the District of Columbia Board of Elections
and Ethics' ("Board") disqualification of several petition
sheets circulated in an effort to place a voter initiative - the
Legalization of Marijuana for Medical Treatment Initiative of
1998 - on the November 3, 1998 General Election ballot. 1/ The
initiative failed to qualify for placement on the ballot because
it failed to pass the random sample test at the citywide level.
Plaintiff contends that the initiative could
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1/ D.C Code § 1-1320(1) (1992) provides, in pertinent part,
that if the Board refuses to accept an initiative petition, the
Superior Court shall review the action and issue an order requiring
the Board to accept the petition if the petition is "legal
in form" and the "proper statements of circulators prescribed
in subsection (h) of this section" are attached
survive if the Board is ordered to accept the excluded petition sheets.
The petition sheets rejected by the Board were those circulated
by Tanya Robinson. Ms. Robinson bad collected approximately 289
petition sheets containing 4,641 signatures. The Board rejected
Ms. Robinson's petition sheets because she had stated in her Circulator's
Affidavit that her address was 1250 Owens Place, N.E., #1, but
on her official voter registration
card, her residence address was listed as Mt. Vernon Shelter,
1000 7th Street, N.W., while 1250 Owens Place was listed as her
mailing address. District law requires that a circulator state
her residence address in the Circulator's Affidavit. 2/ The Board
contends that Ms. Robinson's failure to do so invalidated the
over four thousand signatures that she bad collected.
The Board's position appears to be that its decision to reject
Ms. Robinson 5 petition sheets was mandatory, not discretionary,
under the statute. This Court cannot agree with
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(footnote, continued from page 1)
to the petition. Id, This Court has expedited review of this case
pursuant to § 1-1320(1).
2/ In an affidavit affixed as Exhibit C to Defendant's
Motion for Summary Judgment, Ms. Robinson explains that since
1995, she maintained her principal residence at 1250 Owens
Place, but that she moved into the Mt. Vernon Women's Shelter
in December 1997, at which time she advised the Board of her change
of residence address. Prior to circulating the petition
sheets, Ms. Robinson attempted to verify the residence address
listed in the Board's records and found that, according to a list
labeled "current" as of January 13, 1998, her residence
This interpretation of the relevant statute, D.C. Code §
1-1320(h)(2)(B) (Supp. 1998) states that "[e]ach 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; , , , [t]he residence address of the circulator,
giving the street number . . . ." Id., see also 3 DCMR §
1003.6(b) (1996). However, D.C. Code § 1-1320(k)(1) (1992)
sets forth the grounds upon which the Board shall refuse
to accept a
petition, and these do not include failure to include the residence
address in the circulator's affidavit. The grounds for exclusion
under § 1-1320(k)(1) include, in pertinent part, "(D)
[t]he petition sheets do not have attached to them the statements
of the circulators as provided in subsection (h) of this section;
or (E) [t]he petition was circulated by persons who were not
qualified registered electors of the District of Columbia pursuant
to subsection 9h0 of this section." Id. Neither of these
subsections requires the exclusion of the petition sheets
circulated by Ms. Robinson. Ms. Robinson's statement, although
imperfect, was attached to the petition sheets as required by
§ 1-1320(k)(1). Further, there is no allegation here that
Ms.
Robinson is not a qualified registered elector, as mandated by
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(footnote continued from page 2)
address was 1250 Owens Place.
§ 1320(k) (1) CE). The term "qualified registered elector" is defined as a registered voter who resides at the address listed on the Board's records." E 1-1302(21) (Supp. 1998) - Ms. Robinson is a registered voter who resides at the address listed in the Board's records - the Mt. Vernon Women's Shelter, See Deft, Mtn. Ex. C.
The Board nevertheless references 3 DCMR § 1009.10 (formerly 3 DCMR § 1607.6 (1994)) in support of its position. 3 DCMR § 1009.9(g) states that a signature on a petition shall not be counted as valid if the circulator was not a "duly registered voter. Section 1009.10 defines the term "duly registered voter" as "a registered qualified elector who is registered to vote at the address listed on the petition as shown on the Board's voter registration records . . ." However, to the extent that this regulation sets more stringent standards for the circulator's statement than the statute, see § 1- 1320(k) (1) (E), it contravenes the policies underlying the statute and is inconsistent with the statutory scheme, See Harvey v. District of Columbia Bd. of Elections and Ethics, 581 A.2d 757, 759 (D.C. 1990) (holding regulation invalidating nominating petitions circulated by persons not qualified registered electors to be inconsistent with statutory scheme where statute included similar provision with respect to initiative and referendum
not nominating petitions) Both the Court of Appeals and the District Court for the District of Columbia have emphasized the need to construe the initiative laws liberally so that the will of the electorate may be expressed. The purpose of the Initiative Act is "to permit the electorate to vote on appropriate issues," Dankman v. District of Columbia Bd. Of Elections and Ethics, 443 A.2d 507, 514-15 (DC 1981), and "the overall tenor of the Initiative Act . . prevents 'harmless error' in the signature collection process from vitiating the validity of the petitions." Id. at 515. Further, the United States District Court opined that it is "particularly inappropriate" to restrict determination of an initiative by voters: "[ legislation should be liberally construed to extend its operation rather than to reduce it." Citizens Against Legalized Gambling v. District of Columbia Bd. of Elections and Ethics, 501 F. Supp. 786, 789 (D£D,C. 1980). To accept the Board's argument would, in effect, cause a harmless error regarding an address of the circulator to result in silencing the voices of over 4,600 voters, contrary to the clear import of both Dankman and Citizens Against Legalized Gambling. The only case relied on by the Board, Orange v. District of Columbia Bd. of Elections and Ethics, 629 A.2d 575 (D.C. 1993), is inapposite. Orange involved an appeal from the Board's
decision to disqualify a candidate for a special election to
fill the Chairperson of the Council position in the District of
Columbia. Id. at 576E77, The Board had disqualified the candidate
because the Board found that 1,293 of 4,129 signatures submitted
by the candidate were invalid. Id. at 577. The candidate challenged
the Board's decision to exclude 589 of the 1,293 excluded signatures
due to the fact that the addresses on the petition did not match
the addresses on the Board's records, as mandated by D.C. Code
§ 1-1312(o) (3) - Id. In upholding the statute, which the
candidate had challenged on constitutional grounds, the Court
of Appeals noted that the "very reason § 1-1312(0) (3)
was enacted was the Board's inability otherwise, within the narrow
time limit for validating challenged petitions to determine efficiently
whether a name and address among the potential thousands on a
nominating petition represents an actual registered voter,"
Id. at 578 (citation omitted). The Court also referenced the statute's
purpose of preventing election fraud, which it achieved by providing
a simple, inexpensive, and accurate way of verifying that the
signatures belonged to registered voters. Id,. at 581. 3/ In its
motion here, the Board has reiterated the policy concerns underscored
in Orange,
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3/ The Court rejects defendant's argument that § l-l212(o) (3) applies to initiative petitions as well as to nominating petitions. On its face, § 1-1312(o) applies only to
contending that the requirement that a circulator state her residence address in her Circulator's Affidavit "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," Deft. Mtn. at 8.
However, Orange is not relevant to the present case.
In Orange, the issue was the constitutionality of imposing
on the Board the burden of validating the voting registrations
of potentially hundreds or thousands of people. There, the Court
upheld a statute aimed at determining, with efficiency, the validity
of the thousands of signatures on a petition. Here, in contrast,
the issue is the difficulty of confirming the registrations of
only a few circulators In contrast to the large number of signers
of any given petition, the number of circulators is miniscule,
as evidenced by the fact that Ms. Robinson, one circulator, collected
the signatures of over 4,600 individuals, It is a much simpler
task to verify the address of one circulator than of 4,600 voters.
Moreover, that task is simplified because a circulator, unlike
the people whose signatures she collects, must enter her unique
"Voter Registration Number" on the Circulator's Affidavit,
thus enabling the Board to access immediately records pertaining
to that
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(..continued)
nominating petitions. see also Plaintiff's Reply at 1-3.
circulator As a result, requiring the Board to accept Ms. Robinson's petition sheets does not impair the policies stated in Orange of preventing election fraud and ensuring that the signers of the sheets and Ms. Robinson herself are registered voters.
For the reasons stated above, it is this 3rd day of September, 1998, hereby
ORDERED that plaintiff's motion for summary judgment is
GRANTED and the Board is ordered to accept and process the
petition sheets submitted by Tanya Robinson, and
IT IS FURTHER ORDERED that defendant's motion for summary
judgement is DENTED.
(signed)
Ellen Segal Huvelle
Judge
Signed in Chambers
8
Copies to:
Matthew S. Watson, Esq.
1701 Q Street N.W.
Washington, D.C. 20009
Alisa A. Wilkins, Esq.
Gaffney & Schember
1666 Connecticut Avenue, N.W. - Suite 225
Washington, D.C. 20009
Kenneth J. McGhie, Esq.
General Counsel
D.C. Board of Elections & Ethics
One Judiciary Square
441 Fourth Street, N.W. - #270
Washington, D.C. 20001