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 continuous.

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 "set asides."

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 than necessary.

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.