TRASHING HOME RULE
How the D.C. Board of Elections Unethically,
or, Perhaps Ineptly,
With a Little Help from Some Fools on the Hill,
Almost Neutralized D.C.'s Electoral Process
While the local populace and politicians in D.C. bemoan
federal efforts to stamp out democracy in the nation's capital,
the D.C. Board of Elections and Ethics ("the Board")
tried real hard, albeit unsuccessfully, to dump popular elections
on the ash heap of history.
Years ago, long before Marion Barry was mayor, and long,
long before it seemed acceptable for the President to speak publicly
about seeking psychiatric help for alleged sexual obsessions,
the Spirit of Democracy swept the nation's capitol. After a lifetime
of being ruled by the federal government, local D.C. activists
managed to effect "Home Rule." As the spirit of self-rule
was animating the movement, naturally when Home Rule's proponents
came to power they enshrined the ultimate mechanism of self-rule:
the Voter Initiative. The Initiative is the means by which "We
the People" can eliminate the political middle-man by making
law directly. But, of course, change is the one thing endlessly
Given the socio-economic changes which have transpired
over the past 20-odd years, proponents of Initiative 59, "The Legalization of Marijuana for Medical Treatment,"
were not surprised when Rep. Barr (R-Ga.) proposed to amend
the D.C. Appropriations Bill to "prohibit any funds to
be used to conduct a ballot initiative which seeks to legalize
or reduce the penalties associated with the possession, use, or
distribution of any Schedule I substance under the Controlled
Substance Act or any tetrahydrocannabinois derivative." After
all, the welfare of the New World police-state/economic-system
depends on the employment of ever greater numbers of police, lawyers,
judges, prison guards and staff to serve them. Consequently, the
use of marijuana for medical treatment is not a popular idea among
people who, like Drug Czar McCafferty and his cohorts, like to
put people in jail for fun or profit.
What did come as a surprise, however,
was the zealous activism of D.C.'s Electoral Czarinas: Alice Miller,
Executive Director of the Board, and Kathryn Fairly, Registrar
of D.C. Voters. These ladies apparently worked very hard to insure
that -- regardless of what the community, the law, or simple mathematics
said about it -- Initiative 59 would NOT appear
on the D.C. ballot.
To qualify an initiative for the ballot proponents have six
months to collect the signatures of 5% of the registered voters
in the city (i.e., 16,997), and 5% of the voters registered in
at least five of the eight city wards. On July 6, 1998, thirty
days before the end of the six month collection period, an 1815-sheet
petition, containing more than 32,000 signatures, was submitted
to the Board in support of Initiative 59.
Offensively, the Czarinas' first move was to disqualify
two petition circulators -- a total of over 6,000 signatures.
Officially, they did not "invalidate" the signatures,
but merely "set them aside." Whatever it's called, the
"set aside" meant that only 26,000 signatures -- rather
than 32,000 -- were considered during the Board's "official"
signature tabulation process. In short, Initiative 59 proponents
contend that Director Miller and Registrar Fairley arbitrarily
disenfranchised 6,000 D.C. residents, whose signatures were not
only not counted, but also vanished into an "official void"
-- unrecognized in the Board's official record.
It is important to consider how the incompetence of the
Board's record-keeping process aided bureaucratic efforts to thwart
the democratic process. In the beginning, the Initiative 59 Campaign
purchased from the Board a computer tape which claimed to contain
"all voter records in
the current registry" (emphasis in original).
Although the names of both circulators who were "set aside"
unmistakably appeared on the Board's computer tape, the bureaucrats
contended the computer tape was not properly updated. One can't
help but wonder: If the computer tape was not properly updated,
whose incompetence was to blame?
In the first step of the tabulation process each of the
26,000 signatures was checked - twice - to ascertain that the
signer was registered at the address listed on the petition. Even
without the 6,000 voters banished to the bureaucratic Phantom
Zone, this process showed the petition contained (a) valid signatures
of more than 5% of the voters in five of the eight wards, and
(b) 17,092 valid signatures citywide -- 95 more than necessary
to qualify for the ballot .
Since the petition met the numerical requirements, it became
necessary for the Czarinas to sabotage the Statistical Analysis
stage of the process. The Statistical Analysis involves comparing
the signatures of 100 petition signers, randomly selected from
each of the eight wards, against signatures on the Voter Registration
cards of the total 800 randomly selected names. As Registrar of
Voters, it is Ms. Fairley's duty to decide which signatures match
and which don't.
Due to the small margin -- 95
signatures -- by which the Board calculated the numerical
sufficiency of the petition the random sampling was crucial; 4
mismatching signatures meant success, 5 meant failure. On her
first pass Registrar Fairley, who is not a handwriting expert,
determined 28 of the 800 randomly selected signatures did not
match. After a challenge, Fairley readily conceded that 17 of
the 28 signatures actually did match. Initiative 59 proponents
contend that 10 of the remaining 11 signatures also matched. Solely
on the basis of Registrar Fairley's arbitrary opinion that 11
signatures did not match, on August
5, 1998, the Board (Stephen Callas and Lenore Cole Alexander;
Chairman Benjamin Wilson was absent) declared that Initiative
59 was "rejected;"
in plain terms, it purportedly fell 135 signatures short of meeting
the Statistical Analysis requirement.
Owing to the fact that the Board had stonewalled the issue of the 6,000
signatures "set aside" by Miller and Fairley, on August
10th Wayne Turner, proposer of the Initiative 59, filed a suit in D.C. Superior Court, asking
the court to mandate that the Board include 4,641 of the 6,000
There still remained one possibility to qualify Initiative
59 without judicial intervention: locate 148 signatures improperly
invalidated during the initial tabulation. To locate improperly
invalidated signatures it is necessary to review the petition
sheets containing the Board's tabulation marks. Seeing the judicial
system as a crapshoot, I-59 proponents decided to exhaust every
possibility. As a "public record" the tabulated sheets
should have been readily available. Yet, for two days, until threatened
with legal action, Registrar Fairley refused to release the sheets.
After Fairley finally gave up 1470 sheets - 1815 minus the 375
"set aside" sheets which hadn't been counted -- proponents
of the Initiative discovered 626 signatures, far more than the
148 needed, which had apparently been improperly excluded.
On August 10th Turner and Registrar Fairly together checked
approximately 75 of the disputed signatures. According to Turner's
worksheet, itemized by sheet and line, the Registrar conceded
approximately 25 signatures were, indeed, valid. Another 16 signatures
were found to be valid according to the Board's records. However,
Registrar Fairly insisted they would be designated "Illegible,"
although the signatures were not marked "Illegible"
in the Board's sheets, and notwithstanding the fact that Registrar
Fairley agreed those specific 16 signatures were identifiable
as valid voters -- she insisted they would be designated "Illegible."
Thus, out of a random 75 signatures mutually reviewed by Turner
and Fairley, according to Turner 54% were valid (338 signatures,
if the percentage held over the total 626 signatures) , but, according
to Fairley only 33% (208 signatures) had erroneously been invalidated.
Even Fairley's figure was more than enough to qualify the Initiative
... without the 6,000 "set asides."
There should be no need to speculate as to the number of
improperly excluded signatures, Registrar Fairley agreed to meet
with Mr. Turner on August 11th to continue their review of the
challenged signatures. Speculation is only necessary because when,
as agreed, Mr. Turner arrived at the Board's office the next day
to continue review of the challenged signatures, Fairley informed
him that she would not review any of the remaining disputed signatures,
on the advice of the Czarinas' Rasputin, Mr. Kenneth McGhie, General
Counsel for the Board, who cited the pending Superior Court litigation
concerning the "set aside" signatures as an excuse.
On September 2nd the D.C. Board
heard public comment on the issue of the unresolved challenge
to the 626 signatures. To illustrate the arbitrary nature of the
Board's tabulation process, Initiative 59 proposer, Wayne Turner,
began by noting that the signatures of Steve Michael, Initiative
59's original proposer, who signed in February (sheet 0001, line
01), died from AIDS in May, and was removed from the rolls in
June, and Jeffrey Gildenhorn, a candidate for mayor, who was present
at the Board Hearing, were among the improperly disqualified signatures.
Initiative 59 opponents, Miller and Fairley, argued at
some length to the effect that they had reviewed the signature
of Mr. Michael, decided his signature was actually valid, and
added it to the total. Given that the official total was 17,095
before the purported validation of Mr. Michael's signature, and
remained 17,095 after the purported addition, it seems self-evident,
the Miller/Fairley claim to have validated Mr. Michael cannot
find support in the official record. With respect to Mr. Gildenhorn's
signature, Ms. Fairley maintained that it was "illegible."
Chairman Wilson said that it looked like "J. Gildenhorn"
to him, and articulated skepticism as to the illegibility of Mr.
Gildenhorn's signature. Apparently, the Chairman either lost interest
in the subject, or was content to allow Ms. Fairley's personal
"illegibility" decree to stand.
Miller/Fairley representations were also helpful in diverting
attention away from the main question of the allegedly invalid
signatures. The Chairman asked, assuming the contested signatures
were valid, whether it was possible that the initiative would
qualify for the ballot. Instead of responding "Yes, it's
possible," or "No, it's not possible" -- the only
truthful answers available to her -- Director Miller instead launched
into a long explanation of the Random Sampling process. In terms
of Random Sampling, there was only one truthful answer: "Yes,
assuming enough of the signatures are valid, it's possible."
The Director just didn't tell the truth.
When Chairman Wilson mused about whether the deadline on
challenges might have expired, proponents of Initiative 59 pointed
out that -- owing to Fairley/Miller refusals to make petition
sheets containing the Board's tabulation marks available until
August 7th -- it had been impossible to lodge an administrative
challenge prior to August 7th. Initiative 59 opponent Miller mitigated
that fact by arguing proponents had been permitted to have two
people witness the tabulation process, and they were free to note
challenges at that time. Because proponents had not filed a challenge
to the arbitrarily invalidated signatures during the tabulation
process, Director Miller contended, they had missed the 10-day
time deadline for raising a challenge to a decision of the Board.
Mr. Turner pointed out that the Board hadn't made a final
decision on the validity of the signatures until August 5th, and
that he had begun the process of challenging the signatures on
or about August 7th. Both Turner and Registrar Fairly agreed that
on or about August 10th they sat down together and reviewed 75
of the contested signatures. Here there is (1) a ten day deadline
for challenging a decision of the Board, (2) an August 5th Board
decision that a petition contained an insufficient number of valid
signatures, and (3) an August 10th challenge to the invalidation
of approximately 626 signatures. Simple math proves that the August
10th challenge was raised in 5 days, which is, obviously, less
than a ten day deadline.
Ms. Fairley did admit that she refused to continue the
challenge process, explaining that Mr. McGhie had forbidden further
review of the contested signatures on the pretext of the pending
Superior Court case. To maintain the appearance that Initiative
59 opponents were not entirely divorced from reality, Mr. McGhie
was forced to concede that the issue in litigation, whether the
Board had arbitrarily refused to tabulate 4,641 signatures collected
by one qualified D.C. voter, Tanya Robinson,
did not address the issue of challenges to the arbitrary invalidation
of the 626 signatures which had been tabulated by the Board. Nonetheless,
on the premise that the deadline for lodging a complaint had lapsed,
the Chairman suggested the best method to address the 626 contested
signatures was to amend the currently pending lawsuit, and include
a challenge to the allegedly arbitrarily invalidated signatures.
The Chairman's suggestion proved worthless, however, and
Miller, Fairley and McGhie's efforts to keep Initiative 59 off
the ballot proved fruitless, when, the following day, D.C. Superior
Court Judge Ellen Huvelle ordered
the Board to include the 4,641 "set aside" signatures
in the petition count.
Registrar Fairley and her team met the court order by completing
tabulation of the "set aside" signatures on Labor Day.
According to knowledgeable D.C. government sources 2,305 of the
4,641 signatures have been determined "valid."
A conspiracy to overthow the democratic process, nipped
by the courts? Maybe not, could be normal bureaucratic ineptitude,
or arrogance, or maybe the D.C. Office of Planning just isn't
part of the conspiracy. Because, if it was a conspiracy than it
was a combination of the court and the Office of Planning which
finally thwarted the conspirators. The method chosen by the Office
of Planning for the updated Random Sample appears to have taken
I-59 from a No-Win to a No-Lose situation. According to Chief
Herbert Bixhorn, the Office of Planning will simply run a check
on 100 of the 2,305 additional valid signatures and add those
figures to the previous statistical universe. In other words the
previous universe consisted of 17,092 signatures, a random sampling
of 800, a rejection cut-off of 4.4 signatures, and a rejection
of 11 out of 800 signatures. The
updated universe consisted of 19,397 signatures, far more
On September 17th the Board held a Special Hearing to declare
that Initiative 59 had qualified for the November 3rd ballot.
But not all Initiative 59 proponents are completely pleased.
Although Ms. Fairly additionally consented to review the 626 contested
signatures, even though the court had not specifically ordered
her to do so, she chose to do it.
"The Board's only admitting a little less than 73%
of it's mistake." Says one disgruntled Initiative 59 proponent.
"There's still another 1,500 signatures the Board hasn't
counted, and challenges to another 800 which were counted but
were improperly invalidated. According to our estimates those
signatures represent an additional 1,500 vaild signatures. That's
13% of our total. If you take 13% of 62 home runs, you only get
54 home runs. 54 home runs isn't near as big a deal as 62.
If democracy is to be more than an empty pretense, a few
issues merit serious attention.