District of Columbia Board of Elections
and Ethics
441 4th Street NW 2nd floor
Washington, DC 20001

Dear Board,

During the public comment period at the September 2nd hearing of the Board, I raised my concern about "approximately 700 signatures," many of which, I alleged, had been "arbitrarily invalidated" during the tabulation of Initiative #59 petition sheets. Refusing to deal substantially with those signatures, the Board advised that Turner v. D.C Board of Elections and Ethics, CA No. 98-6077 (D.C. Super. Ct) - a case then pending to contest the Board's decision to "set aside" the petitions collected by Tanya Robinson - should be amended to include the issue of the allegedly arbitrarily invalidated signatures.

As you probably know, the day after the Board's hearing, Judge Huvelle ordered the Board to include Ms. Robinson's petitions in the Initiative #59 count. Obviously, there wasn't time to amend the pending complaint before Judge Huvelle resolved Turner. However, Registrar Kathryn Fairley has reasonably agreed to also tabulate the additional approximately 700 contested signatures, obviating any need for expensive, time-consuming litigation.

Over the Labor Day weekend, the Board's process seemed to operate very efficiently toward fulfilling Judge Huvelle's order. By Monday night Registrar Fairley declared that the tabulation of Ms. Robinson's petitions had been completed. Ms. Fairley reached agreement on an administrative process for resolving challenges to signatures invalidated during the tabulation process, while completing the tabulation process within the printing deadline for the November ballot. This morning Ms. Fairley efficiently provided us with 200 of fully tabulated sheets, and promised the remainder by this afternoon. Ms. Fairley indicated there would be more than sufficient time to process the challenges within the deadline if challenges were lodged within 48 hours after the photocopies were made available.

Thanks to Ms. Fairley's cooperation, a random sampling of perhaps half of the completed petition sheets revealed a total of nearly 1200 valid signatures. Based on that figure, we are 99.99999% confident that Initiative 59 will easily survive the 95% confidence rating required to pass the Board's Random Sampling.

Ms. Fairley's recent amicable cooperation in working toward a fair and accurate exercise of the democratic process is warmly applauded. Unfortunately, as documented in our July 13th letter to the Board (a copy was part of a package given to Mr. Callas and Mrs. Cole Alexander at the August 5th hearing, the Chairman was absent), several issues of concern still remain.

Owing to the urgency of resolving Turner quickly enough to meet the deadline for the November ballot, it was decided to produce the cleanest motion for summary judgment possible. For that reason it was decided to focus the petition for mandamus solely on the issue of Ms. Robinson's petitions. Since it now appears virtually inevitable that Initiative 59 will qualify for the November ballot, there is time to address issues left unresolved in the wake of Turner. These issues were judicially noted within the ten day regulatory requirement by filing an Affidavit Concerning Issues To Be Preserved in Turner case.

First, notwithstanding her civility in agreeing to tabulate the "approximately 700 signatures" even though the court had not specifically ordered her to do so, Ms. Fairly has declined to tabulate Mr. Whitehall's petitions. She advised that requests concerning Mr. Whitehall's should be addressed to the Board.

Mr. Whitehall submitted an affidavit to the Board (attachment 5 hereto) explaining the circumstances which resulted in the "setting aside" of petitions he circulated. As Mr. Callas, and Ms. Cole Alexander might recall, and the transcript of the August 5th hearing will reveal, that Mr. Whitehall was in attendance at the hearing, that Mr. Matt Watson, counsel of record in Turner, informed the Board of Mr. Whitehall's presence ("Wave to the Board, Mr. Whitehall") and that Mr. Whitehall was prepared to answer any questions the Board wished to put. As instructed, Mr. Whitehall waved, but the Board asked no questions. Unlike Ms. Robinson, who had been continuously registered since 1983, Mr. Whitehall had only been registered since November, 1997. Because of Ms. Fairley's complicated and convoluted explanations as to why Mr. Whitehall had been "placed on the inactive list" (not to mention questions about exactly when Mr. Whitehall had been placed on the inactive list), it was decided that resolution of Ms. Fairley's explanations might require an evidentiary hearing which would delay resolution of the motion for summary judgment. Therefore, to expedite the matter, the issue of Mr. Whitehall's petitions was not raised in Turner. Now, there is time for an evidentiary hearing. Based on Mr. Whitehall's affidavit, after he personally visited the Board of Elections; for the explicit purpose of verifying his voter registration; he also submitted a second voter registration card.

It seems likely a court might easily decide that, at best, the Board had inadequate process, or, at worst, simply lacked the competence necessary to enter Mr. Whitehall's name on the active list even after he, accompanied by an independant witness (see, transcript, August 5th hearing), personally visited the Board to correct the mistake which had moved him to the inactive list.

Another matter of concern, first suggested to the Board in a letter dated July 7, 1998 (see attachment 3), is the fact that, like Ms. Robinson, Mr. Whitehall was also identified as a qualified registered D.C. voter, at the address appearing on his petition sheets, on the Board's voter "list 'current' as of January 13, 1998." See, Turner, Order, September 2, 1998, n. 2. There is a double prong to this concern:

1. Lack of an efficient process by which voter lists are updated on a regular basis. Such a process is needed to avoid cases like Ms. Robinson and Mr. Whitehall, whose names appeared on the list, but who were declared "invalid" by the Registrar. It is also needed to avoid cases of people whose names did NOT appear on the list, but who did have D.C. voter registration cards which indicated they had been registered for several months. Obviously such a process is crucial for precluding perplexing complaints, e.g.:

"Primarily, our contention is that, in good faith, (at considerable expense,) and for the express purpose of insuring that circulators and signatories to our petitions were actually qualified DC voters, we purchased what the Board represented as a VAILD voter registration database. Now, notwithstanding the fact that the signatures submitted are VALID according to the database it supplied, the Board contends that two persons, listed as VALID on its' own database, should be disqualified." July 13th letter.

2. The 9-track format in which computer tape voter lists are made available to the public is unnecessarily expensive and difficult to access. It would be far less expensive for both the public and the Board, and far more user friendly for the public, if the voter lists were available on CD-ROM. The only additional hardware and software the Board (and/or S.H.A.R.E.) would need to produce CD-ROM voter lists is available, retail, for under $400.

The final remaining concern is that the "process" by which the Registrar handles the signature comparison during the Random Sampling is a "process" that invests her with boundless discretion, and, hence, the power of arbitrary decision making. This is important. During the flawed process of the Initiative 59 Random Sampling, the Registrar ruled that 11 signatures did not match; 10 of those 11 alleged mismatches were challenged, but the Registrar insisted ... and that was all she needed to do under the existing "process." Because the Initiative 59 petition exceeded the requisite number of citywide signatures by only 95, only 4 signatures could be mismatched before the initiative was rejected under the Random Sampling. As it stands, the Board's policy for Random Sampling signature comparison is apparently nothing more than simply allowing the Registrar to decide, which signatures match and which don't. A court is liable to find this is not a legitimate "process." Hopefully some mechanism can be developed to interject a greater degree of objectivity.

I would allege that the problem with the process is imaged in the problem of Mr. Whitehall, namely: The Board's processes proceed from the premise that a petition signature MUST be invalidated unless it STRICTLY abides by the minutia of the Board's regulations, despite the fact that the Human Being in question is an uncontrovertibly qualified D.C. voter; a premise which necessarily relies on ignoring reality ("Wave to the Board, Mr. Whitehall").

Turner might be read to indicate that the Board is not reluctant to litigate untenable premises. On the other hand, the Board has the option of saving the taxpayers some avoidable lawyer's fees by resolving the above stated claims, i.e.: (1) tabulate Mr. Whitehall's petitions, and implement processes that would (2) insure those seeking to register as voters are actually registered, (3) provide accurate, up to date, user friendly voter registration information, and (4) a system of checks and balances against arbitrary decision making during the signature comparison stage of the Random Sampling.

On behalf of the Initiative 59 Campaign, I remain,

Sincerely,

Wayne Turner
Initiative 59 Proposer

cc: Chairman Benjamin Wilson
Board Members Stephen Callas and Lenore Cole Alexander
Executive Director Miller
General Counsel Kenneth McGhie