Logosm.gif (1927 bytes)
navlinks.gif (4688 bytes)
Hruler04.gif (5511 bytes)

Back to Video Lottery Terminal Initiative of 2004 main page

DC Board of Elections and Ethics 
Brief in Appeal of Board of Elections and Ethics Order on Initiative 68
August 27, 2004

Home

Bibliography

Calendar

Columns
Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars

DCPSWatch

DCWatch Archives
Council Period 12
Council Period 13
Council Period 14

Election 1998
Election 2000
Election 2002

Elections
Election 2004
Election 2006

Government and People
ANC's
Anacostia Waterfront Corporation
Auditor
Boards and Com
BusRegRefCom
Campaign Finance
Chief Financial Officer
Chief Management Officer
City Council
Congress
Control Board
Corporation Counsel
Courts
DC2000
DC Agenda
Elections and Ethics
Fire Department
FOI Officers
Inspector General
Health
Housing and Community Dev.
Human Services
Legislation
Mayor's Office
Mental Health
Motor Vehicles
Neighborhood Action
National Capital Revitalization Corp.
Planning and Econ. Dev.
Planning, Office of
Police Department
Property Management
Public Advocate
Public Libraries
Public Schools
Public Service Commission
Public Works
Regional Mobility Panel
Sports and Entertainment Com.
Taxi Commission
Telephone Directory
University of DC
Water and Sewer Administration
Youth Rehabilitation Services
Zoning Commission

Issues in DC Politics

Budget issues
DC Flag
DC General, PBC
Gun issues
Health issues
Housing initiatives
Mayor’s mansion
Public Benefit Corporation
Regional Mobility
Reservation 13
Tax Rev Comm
Term limits repeal
Voting rights, statehood
Williams’s Fundraising Scandals

Links

Organizations
Appleseed Center
Cardozo Shaw Neigh.Assoc.
Committee of 100
Fed of Citizens Assocs
League of Women Voters
Parents United
Shaw Coalition

Photos

Search

What Is DCWatch?

themail archives

No. 04-AA-957

IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

CITIZENS COMMITTEE FOR D.C. VIDEO LOTTERY TERMINAL INITIATIVE, Petitioner,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent,
and
RONALD L. DRAKE, et al., Intervenors.

On Petition for Review of the District of Columbia Board of Elections and Ethics

Brief for Respondent District of Columbia Board of Elections and Ethics

Back to top of page


LIST OF PARTIES

1. Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, represented by:

George Jones, Jr.
Sidley Austin Brown & Wood LLP
1501 K Street, N.W.
Washington D.C. 20005

Erik S. Jaffe
Law Office of Erik S. Jaffe. P.C.
5101 34th Street, N.W.
Washington D.C. 20008

John L. Ray
Manatt Phelps & Phillps LLP
700 12th Street N.W. Suite 1100
Washington D.C. 20005-4075

2. Respondent District of Columbia Board of Elections and Ethics, represented by:

Kenneth J. McGhie, General Counsel*
Alice Miller, Acting General Counsel
Terri D. Stroud, Staff Attorney
Rudolph M. D. McGann, Jr., Staff Attorney
D.C. Board of Elections and Ethics
One Judiciary Square
441 4th Street, N.W., Suite 270N
Washington D.C. 20001-2745

3. Intervenor Ronald L. Drake, Pro Se
5 P Street S.W.
Washington D.C. 20024

4. Intervenor DC Watch, Pro Se
Dorothy Brizill
DC Watch
1327 Girard Street, N.W.
Washington D.C. 20009

5. Intervenor DC Against Slots, Pro Se
Reverend Dean L. Snyder
DC Against Slots
333 A Street N.E.
Washington D.C. 20002

Back to top of page


TABLE OF CONTENTS

LIST OF PARTIES
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ISSUES PRESENTED
STATEMENT OF FACTS
SUMMARY OF ARGUMENT
ARGUMENT

I. STANDARD OF REVIEW
II. HISTORY OF THE INITIATIVE PROCESS IN THE DISTRICT OF COLUMBIA
III. THE BOARD CORRECTLY CONCLUDED THAT THERE WAS A POLLUTION OF THE CIRCULATION PROCESS THAT EXTENDED BEYOND A HANDFUL OF DISCRETE ACTS OF WRONGDOING

A. The Board Properly Interpreted the Role and Responsibility of the Circulator of an Initiative Petition in the District of Columbia
B. The Board Properly Applied Its Interpretation of the Circulator’s Role and Responsibility to the Facts of This Case
C. The Board Properly Concluded That the Instances of Individual Malfeasance Were Indicative of a Broader Problem in the Petition Circulation Process

IV. THE MESSAGE CONVEYED BY THE DISPUTED T-SHIRTS AND IN INSTRUCTIONS IMPARTED TO CIRCULATORS WERE FALSE AND MISLEADING
V. THERE IS STATUTORY AUTHORITY FOR THE BOARD’S REGULATION REQUIRING CIRCULATORS TO ATTEST THAT THEY MADE NO FALSE STATEMENTS ABOUT THE INITIATIVE TO SIGNATORIES
VI. THE FALSE STATEMENTS CONVEYED BY THE DISPUTED T-SHIRTS AND IN INSTRUCTIONS IMPARTED TO CIRCULATORS DO NOT CONSTITUTE CORE POLITICAL SPEECH WHICH IS TO BE PROTECTED
VII. THE TAINT IN THE CIRCULATION PROCESS WAS MOST CONCENTRATED IN THE STARS AND STRIPES ORGANIZATION

CONCLUSION

Back to top of page


TABLE OF AUTHORITIES

Case Law

Supreme Court Decisions

Brown v. Hartlage, 456 U.S. 45 (1982
Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)
Burson v. Freeman, 504 U.S. 191 (1992)
Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984)
Meyer v. Grant, 486 U.S. 414 (1988)

U.S. District Court, D.C.

Citizens Against Legalized Gambling v. Brd. Elections & Ethics, 501 F. Supp. 786 (D.D.C. 1980)

D.C. Court of Appeals

4934, Inc. v. District of Columbia Department of Employment Services, 605 A.2d 50 (D.C. 1992)
Dankman v. Brd. Elections & Ethics, 443 A.2d 507 (D.C. 1981)
Pendleton v. D.C. Brd. of Elections and Ethics, 449 A.2d 301, 307 (D.C. 1982)
Regional Constr. Co v. District of Columbia Department of Employment Services, 600 A.2d 1077 (D.C. 1991)
Schiffman v. District of Columbia Alcoholic Beverage Control Board, 302 A.2d 235 (D.C. 1973)
Stewart v. District of Columbia Board of Zoning Adjustment, 305 A.2d 516 (D.C. 1973)
Williams v. Brd. of Elections & Ethics, 804 A.2d 316 (D.C. 2002)

D.C Superior Court

Argo v. D.C. Board Of Elections and Ethics,

Other Jurisdictions

Brousseau v. Fitzgerald, 675 P. 2d 713 (Ariz. 1984)
Clawson v. Wilgus, 107 Ohio App. 460 (1957)
In re Levowitz, 221 N.Y.S.2d 703 (1961)

Statutes

D.C. Code § 1-204
D.C. Code, § 1-281
D.C. Code § 1-1001.05(h)(1)(A)
D.C. Code § 1-1001.14(b)(3)
D.C. Code § 1-1001.16(k)(1)(D)
D.C. Code § 1-1001.16(k)(1)(E)
D.C. Code § 1-1001.16(o)(1)

Regulations

D.C. Mun. Regs. tit 3 §1003.6 (g)
D.C. Mun. Regs. tit 3 §1003.6 (i)
D.C. Mun. Regs. tit 3 §1006.3 (d)
D.C. Mun. Regs. tit 3 §1006.3 (e)
D.C. Mun. Regs. tit 3 §1009.7

Back to top of page


No. 04-AA-957

IN THE DISTRICT OF COLUMBIA COURT OF APPEALS

CITIZENS COMMITTEE FOR D.C. VIDEO LOTTERY TERMINAL INITIATIVE, Petitioner,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent,
and
RONALD L. DRAKE, et al., Intervenors.

On Petition for Review of the District of Columbia Board of Elections and Ethics

Brief for Respondent District of Columbia Board of Elections and Ethics

Back to top of page


ISSUES PRESENTED

1. Whether the Board was reasonable in its conclusion that there was a pollution of the circulation process that extended beyond a handful of discrete acts of wrongdoing?

2. Whether there is statutory authority for the Board’s regulation requiring circulators to attest that they made no false statements about the initiative to signatories?

3. Whether the message on the t-shirts and training instructions by Ross Williams misrepresented Initiative Measure Number 68?

4. Whether the taint of the signature gathering process for Initiative Measure No. 68 was concentrated in the Stars and Stripes organization?

Back to top of page


STATEMENT OF FACTS

On April 22, 2004, the Citizens Committee submitted a proposed initiative measure, then-entitled the "Jobs, Education, and Healthcare Lottery Expansion Initiative of 2004," to the Board of Elections and Ethics (Board). See BOEE Exhibit (Exh.) #44. Based on a review of the original version of Initiative Measure No. 68 by the Board’s General Counsel, together with written comments received by the Board, the Board’s General Counsel informed the Citizens Committee that it was likely that the measure as submitted would be found to violate the laws governing the initiative process in the District of Columbia.

On May 28, 2004, the Citizens Committee submitted a revised version of Initiative Measure No. 68, which omitted, inter alia, the problematic language in the body of the original measure that directed where revenues from the VLTs would be deposited. (See BOEE Ex.. #45). Although leaving in the text of the initiative a strong recommendation that funds from the VLTs be used, in part, to support education and healthcare for seniors, the Citizens Committee deleted the reference to Jobs, Education and Healthcare in the title of the initiative, and re-designated the proposed measure as the "Lottery Expansion Initiative of 2004." Shortly thereafter, the Citizens Committee also changed their committee’s name from "Citizens for Jobs, Education and Healthcare Initiative Committee" to "Citizens Committee for the D.C. Video Lottery Terminal Initiative," and filed the appropriate documentation to effectuate that change with the D.C. Office of Campaign Finance ("OCF").

On June 9, 2004, the Board accepted the revised version of Initiative Measure No. 68 as a proper subject for initiative, and drafted the formulations for the short title and summary statement which would appear on the supporting petition forms. As drafted by the Board, the short title and summary statement of Initiative Measure No. 68 were as follows:

INITIATIVE MEASURE No. 68

SHORT TITLE
"THE DISTRICT OF COLUMBIA VIDEO LOTTERY TERMINAL INITIATIVE OF 2004"

SUMMARY STATEMENT

This initiative, if passed, will:

  • expand the lottery by allowing "Video Lottery Terminals" ("VLTs") in the District of Columbia;

  • provide a fee of 25% of the net revenue from each VLT to the District;

  • establish the initial VLT facility at Montana Avenue/New York Avenue/Bladensburg Road, NE;

  • permit one licensee to operate VLTs for the first ten years;

  • establish application requirements for additional licensees after the first ten years;

  • make nonbinding recommendations to the City Council that the fee paid to the District be used, in part, to improve public schools and to help senior citizens obtain prescription drugs.

On June 21, 2004, Mses. Brizill and James, and David Argo filed a complaint with the Superior Court of the District of Columbia seeking an order directing the Board to reject Initiative Measure No. 68. See BOEE Exh. #41. One of the claims asserted by the plaintiffs was that the Board’s June 9, 2004 short title and summary statement formulations were misleading, biased, and inaccurate. Id. The Court affirmed the Board’s decision to accept Initiative Measure No. 68. See BOEE Exh. #56 and #57. However, the Court accepted the plaintiffs’ argument that there was language in the Board’s summary statement formulation that "created prejudice in favor of the measure." Id. Accordingly, the Court ordered the Board, inter alia, to remove the final bullet point in the summary statement which indicated that Initiative Measure No. 68 would make nonbinding recommendations to the Council of the District of Columbia. Id.

On July 1, 2004, the Board convened a Special Meeting to issue an original petition form to the Citizens Committee for the purpose of gathering the proper number of valid signatures to achieve ballot access. See BOEE Exh. #41. Under the applicable law, the proposer of an initiative has one hundred eighty (180) days within which to file a petition with the requisite number of valid signatures. See D.C. Code §1-1001.16(j) (1). The deadline for submitting a petition to gain ballot access in the November 2nd General Election, however, was July 6, 2004. The Citizens Committee opted to seek ballot access for the November 2nd General Election.

On July 6, 2004, the Citizens Committee submitted the Petition to the Board. It was comprised of 3,869 petition sheets with 56,044 signatures. See BOEE Exh. #1. The Board posted the Petition for public review and inspection on July 9, 2004 for the statutorily prescribed 10-day challenge period. See D.C. Code §1-1001.16(o) (1).

On July 19, 2004, Mr. Ron Drake, Esq., filed a challenge to the Petition ("Drake challenge"), which focused on alleged deficiencies in the petition circulation process. See BOEE Exh. #2. On that same day, the Board also received a joint challenge from D.C. Watch and D.C. Against Slots ("Brizill/James challenge"), which raised similar issues. See BOEE Exh. #3. Consistent with the practice of the Board, pre-hearing conferences for the Drake and Brizill/James challenges were held on July 20 and 21, 2004, respectively. See BOEE Exh. #4.

On July 21, 2004, the Board consolidated the Drake and Brizill/James challenges, and commenced a hearing to resolve them ("Hearing"). See BOEE Exh. #6a-6i. The Hearing, which lasted nine days, was conducted between July 21 and August 2, 2004. In connection with the Hearing, the Board issued subpoenas and requests for appearances to a total of 130 individuals. This number included the three officers of the Citizens Committee, 103 Petition circulators, eleven signatories, eight representatives from the firms hired to conduct the Petition circulation process, three individuals identified as supporters of Initiative Measure No. 68, two managers at the hotels where non-resident circulators stayed while in D.C., and one purported signatory. The Board ultimately heard testimony from 38 witnesses, and reviewed and considered individual Petition sheets as well as documentary and other evidence submitted by the parties either voluntarily or in response to Board-issued subpoenas.

During the course of the Hearing, the Board considered and ruled on various alleged defects in the circulator’s affidavit including illegible names on the Petition sheets, multiple names or addresses on the circulator’s affidavits, altered circulator’s affidavits, omitted dates for circulation period on Petition sheets and at circulator’s signature lines, required information missing from circulator’s affidavits, and signature signed by mark unsupported by affidavit. The Board also considered whether D.C. resident circulators may use the assistance of non-residents in the signature gathering process. The Board ruled that a circulator, who is required by statute to be a D.C. resident, may be assisted by others, including non-residents, as long as the circulator is "‘in the presence of’ each signer, at the time of signing, such that he or she is aware of, and can attest to, the circumstances surrounding the signing. . ." (BOEE Ex. 69 at 12). The Board continued: "the circulator must be sufficiently engaged in the process and in such close proximity to the signer so as to be able to be fully responsible, fully accountable, and well versed in the circumstances of the signature gathering effort." Id.

The Hearing revealed evidence of various irregularities in the Petition circulation process. Specifically, witnesses who testified only after their Fifth Amendment right against self-incrimination had been asserted and immunity granted—revealed that on instruction and/or knowledge of individuals associated with the petition circulation companies, they and others completed the circulator’s affidavit of certification for Petition sheets which had been circulated by non-residents while outside of their presence. (BOEE Exh. 69 at 28-31).

The Hearing further disclosed evidence of forgeries on both circulator affidavits and Petition sheets. (BOEE Exh. 69 at 34-36).

Evidence bearing on the challengers’ allegation that the Citizens Committee misrepresented Initiative Measure No. 68 was also presented. The evidence focused on a bright yellow T-shirt with the message "Sign Up! For Jobs, Schools, and Healthcare"; the sales pitch promoted during the official training sessions conducted by Ross Williams; the nature of the communications actually made to potential signers by the circulators; and brochures that were used to describe and promote the Capital Horizon Entertainment Complex project proposed by the Citizens Committee.

Based on the evidence presented, the Board found that the challenged T-shirt, sales pitch, and associated communications made to potential signers that revenue from the initiative would be used for schools and health care, as well as other disparate communications, constituted misrepresentations of Initiative Measure No. 68, and were therefore in violation of the attestation in the circulator’s affidavit that prohibits the making of false statements regarding the Initiative. (BOEE Exh. 69 at 36-43). The Board further found that discussion between the circulator and signer regarding ancillary benefits of the initiative—such as those outlined in the promotional brochures—is protected "core political speech" and fell within acceptable bounds, and therefore rejected that aspect of the challenge. (BOEE Exh. 69 at 44-45).

Closing arguments were held on August 2, 2004. At that time, counsel for the Citizens Committee, conceded that the t-shirt was a mistake and a misrepresentation. BOEE 6i at 276.

The Board issued an oral ruling on the challenges on August 3, 2004 in which it rejected all Petition sheets gathered under the auspices of the petition circulation firm of Stars and Stripes, Inc. The Board found flaws in the process which bore on the validity of the signatures collected, and were significant when considered individually and monumentally when considered collectively. These flaws included: 1) the use of so-called "assistants" who were non-residents of the District of Columbia, but who actually performed the petition circulating responsibilities statutorily prescribed for D.C. residents; 2) the falsification of the circulator’s affidavit by D.C. residents at the urging of some of the non-residents brought into the District of Columbia to "assist" with the petition drive; 3) forged signatures of both signatories and circulators; 4) official training of circulators by non-residents who were uninformed about the District’s election laws and Initiative Measure No. 68 itself, and who promoted a sales pitch that mischaracterized the substance of the initiative; 5) false advertising of the initiative to induce signing that was conveyed both orally in communications between circulators and potential signers, and visually through the wearing of T-shirts that conveyed the false information; 6) the haphazard and uncoordinated recruitment of D.C. residents by non-resident circulators to act as purported witnesses to their signature gathering efforts—a practice that undoubtedly contributed to the unreliability of the circulator’s affidavits and the Board’s inability to subpoena several witnesses; and 7) an overall lack of oversight of the activities in the field by managers who appeared far removed from the details of the collection effort.

On August 5, 2004, the Board’s Executive Director, Alice P. Miller, issued a report on the sufficiency of the Petition which indicated that the number of signatures on the Petition did not meet the qualification standards established for ballot certification. On August 13, 2004, the Board issued a written order which memorialized its August 3, 2004 oral ruling.

The Citizens Committee filed a Petition for Review of the Board’s decision on August 6, 2004, to deny Initiative Measure No. 68 ballot access for the November 2, 2004 General Election ballot.

Back to top of page


SUMMARY OF ARGUMENT

The standard of review in this Court is limited to determining whether the Board’s decision to reject the petition for Initiative Measure No. 68 was arbitrary, capricious, and an abuse of discretion deemed to be unreasonable under the fact pattern and the circumstances presented.

The Board, in making its determination to eliminate signatures filed on the Initiative Petition enforced the statute which sets forth the circulator’s requirements for obtaining signatures appended to an initiative petition. The Board has the ultimate responsibility to ensure that the signature gathering process is not compromised. The Board must oversee the qualification of an initiative measure from the commencement of the process to its certification for ballot access.

The test for determining whether to exclude the signatures circulated by individuals under circumstances casting doubt on the veracity of the attestation clause associated with the circulation of the petition is controlled, in part, by Williams v. Board of Elections and Ethics, 804 A.2d 316 (D.C. 2002). The Board, as the administrative trier of fact, is solely charged with the responsibility of weighing the evidence and assessing the credibility of the witnesses before it.

Back to top of page


ARGUMENT

I. STANDARD OF REVIEW

Pursuant to D.C. Code §§ 1-1001.16(o)(1), 1-1001.08(o)(2), any person named in the challenged petition . . . may apply to the District of Columbia Court of Appeals for a review of the reasonableness of such determination (emphasis added). The Board’s mandate by virtue of D.C. Code § 1-1001.05(a)(14) is to "[i]ssue such regulations. . . necessary to: . . . define the form of petitions; establish rules for the circulation and filing of petitions; [and] establish criteria to determine the validity of signatures on petitions . . ." This Court should, consistent with the basic principles of administrative law, defer to the Board’s expertise, and give great weight to the Board’s interpretation of the statute and regulations unless the Board’s rationale is not supported by substantial evidence and/or is unreasonable, arbitrary, or capricious. See Pendleton v. D.C. Brd. of Elections and Ethics, 449 A.2d 301, 307 (D.C. 1982). The Court must defer to an administrative agency’s findings of fact and affirm them if they are supported by substantial evidence in the record as a whole. 4934, Inc. v. District of Columbia Department of Employment Services., 605 A.2d 50 (D.C. 1992); (cited in Regional Constr. Co v. District of Columbia Department of Employment Services, 600 A.2d 1077 (D.C. 1991).

"It has been clear since [the Supreme] Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest." Lebron v. WMATA, 749 F.2d 893, 896 (quoting Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 (1984). Although the instant case is framed as raising a First Amendment issue, it does not necessarily mean that the Board’s action either implicated the First Amendment or constituted a First Amendment violation. The Supreme Court has consistently upheld jurisdictions’ right to maintain their electoral process to assure integrity and reliability:

Accordingly, this Court has concluded that a State has a compelling interest in protecting voters from confusion and undue influence. The Court also has recognized that a State indisputably has a compelling interest in preserving the integrity of its election process. The Court thus has upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.

Burson v. Freeman, 504 U.S. 191, 199 (1992) (citations omitted). Where evidence in the record evinces forgery of circulator affidavits, false statements within the affidavits, non-residents not subject to the Board’s subpoena power circulating the petition, and false statements by circulators in presenting the primary purpose of a proposed initiative measure, it becomes virtually impossible to determine which voters actually signed the petition in support of the primary purpose of the measure. The Board welcomes a through examination of the whole record to ensure that the Board’s decision was a reasonable interpretation of the statutes and regulations it promulgates in light of any constitutional concerns and the Board’s compelling interest of protecting and upholding the integrity of the electoral process.

Back to top of page


II. HISTORY OF THE INITIATIVE PROCESS IN THE DISTRICT OF COLUMBIA

On March 10, 1978, the "Initiative, Referendum, and Recall Charter Amendments Act of 1977" became effective. In relevant part, the Charter Amendments Act of 1977 reserved to the registered qualified electors of the District of Columbia the power to propose laws, with some exceptions, to the electorate for their adoption. On June 7, 1979, the "Initiative, Referendum and Recall Procedures Act of 1979," the enabling legislation for the Charter Amendments Act of 1977, became effective.

Since the enactment of the Charter Amendments Act of 1977, the Courts have long recognized the responsibility of the Board to protect the integrity of the election process through its application of the Procedures Act of 1979 and the Board’s own regulations. The Board’s regulations and the enabling legislation prescribe carefully crafted procedures designed to provide an orderly initiative, referendum and recall process, and to prevent fraud in the execution. These procedures cannot be characterized as "mere technicalities", but as safeguards which ensure the right of the electorate to pursue and validly present a measure for ballot access. See Dankman v. BOEE, 443 A.2d 507 (D.C. 1981) (en banc). The history of the initiative process in the District of Columbia reinforces the statutory mandate of the Board of Elections and Ethics to protect and ensure the integrity of the manner in which the power to propose laws is invoked by the electorate.

Back to top of page


III. THE BOARD CORRECTLY CONCLUDED THAT THERE WAS A POLLUTION OF THE CIRCULATION PROCESS THAT EXTENDED BEYOND A HANDFUL OF DISCRETE ACTS OF WRONGDOING

The Board concluded that the cumulative impact of the irregularities in the petition circulation process at the Red Roof Inn was such that it polluted the process and warranted the rejection of petition sheets circulated by individuals who were clearly identifiable as working under the auspices of the Stars and Stripes organization. The testimonial and other evidence garnered during the nine days of testimony more than amply supports the reasonableness of the Board’s conclusion in this regard.

A. The Board Properly Interpreted the Role and Responsibility of the Circulator of an Initiative Petition in the District of Columbia

Liberally taking phrases out of context, playing "fast and loose" with language, and recasting the essence of the Board’s statements to create a strawman, the Petitioner devotes several pages of its brief to the argument that the Board "misapprehended the scope of the responsibility of circulators" by improperly engrafting an "operational predominance or control" requirement on circulators in the District that violates the First Amendment. See Pet’r Br. At 33-38. This argument is a red herring.

In a section bearing the heading "The Applicable Law," the Board set forth its interpretation of the role and responsibility of the initiative petition circulator in the District of Columbia. The Board stated:

The statutory and regulatory requirements for initiative petition circulators clearly contemplate that the D.C. resident circulator is deemed to be the party responsible and accountable for the circulator process as it pertains to the particular petition sheet(s) to which he or she is attesting. The circulator must be sufficiently engaged in the process of gathering signatures so as to be able to ensure the integrity of that process. Accordingly, while a circulator may utilize assistants—including non-residents—in circulating the petition, the circulator must be "in the presence of" each signer at the time of signing such that he or she is aware of, and can attest to, the circumstances surrounding the signing, including for example, the nature of any representations that are made to potential signers regarding the subject of the petition.[footnote omitted] The law does not require that the circulator must be the person who first approaches the signer, the person holding the clipboard with the petition sheet, the person who gives the clipboard to the signer, or even the person who always responds to the signer’s questions. However, the circulator must be sufficiently engaged in the process and in such close proximity to the signer so as to be able to be fully responsible, fully accountable, and well versed in the circumstances of the signature gathering effort.

BOEE Ex. 69 at 12. There can be no question that the Board’s interpretation properly incorporates the statutory and regulatory requirements that govern the obligations and responsibilities of circulators under District law, while appropriately recognizing the rights of non-residents to participate in the process.

The Petitioner does not appear to take issue with this interpretation—nor can it. Indeed, although putting its particular "spin" on the issue, the Petitioner highlights the same affidavit requirements in articulating its position as those upon which the Board relied in setting forth its interpretation. See, e.g., Pet’r Br. at 35 (D.C. Law Requires that Circulators "Be Responsible and Accountable through Their "Presence" and Their Affidavits"); Id. (resident circulator must be "in the ‘presence’ of the person being solicited in order to have knowledge of the several items listed in the affidavit …"). The Petitioner also admits that the Board’s interpretation acknowledges the "freedom of non-residents involved in the process" to assume responsibilities associated with the circulation effort. Id. In the final analysis, therefore, the Petitioner is really without any basis to mount a challenge—let alone a credible one—to the interpretation advanced by the Board.

The Petitioner attempts to mount a challenge nonetheless. Draped in the trappings of the First Amendment, Petitioner claims that the Board has imposed "predominance and control" requirements that are not only an "unwarranted extension of D.C. law," but are "fatally vague" and impose an "undue burden on the First Amendment rights of the resident circulators, the non-residents engaged in political speech, the proponents of Initiative 68, and the District’s voters." Pet’r Br. at 36-37, 38 n.20. This strawman that Petitioner has created and the unwarranted invocation of First Amendment law are grounded in a mischaracterization of the Board’s opinion. In fact, it is clear that Petitioner misinterpreted and took out of context language that the Board used to describe the factors that seemingly contributed to Petitioner’s violation of the applicable law.

In its Memorandum Opinion, the Board stated:

The evidence revealed that there was a serious breakdown in the operation of Categories 2 and 3 that resulted in clear violations of District law. While the applicable law, as discussed above, requires the D.C. resident circulator to be the responsible and accountable party in the signature gathering effort, the law was turned on its head in that non-resident assistants assumed the predominant role. This reversal of roles was encouraged by a system in which … [the non-resident assistants exercised an] unbridled level of control and discretion … over the petition circulation process [that] gave them an air of authority and placed them in a position that allowed them to manipulate the process and circumvent the laws of the District of Columbia.

BOEE Ex. 69 at 27-28. This passage refers to the applicable law as set forth earlier in the Board’s opinion. Similarly, the phrase "predominant role" obviously is intended to capture the concept of the "responsible and accountable party in the signature gathering effort" referenced in the earlier part of the sentence and in the previously discussed applicable law. See BOEE Ex. 69 at 12 ("However, the circulator must be sufficiently engaged in the process and in such close proximity to the signer so as to be able to be fully responsible, fully accountable, and well versed in the circumstances of the signature gathering effort."). Correspondingly, the phrases, "this reversal of roles" and the "law [being] turned on its head", necessarily and unmistakably refer to the violations of law revealed by the testimony where the non-resident assistant, rather than the D.C. resident, became the "responsible and accountable party in the signature gathering effort." Finally, the Board’s description of those aspects of the petition drive system that appeared from the evidence to "encourage" such violations of law, does not alter the Board’s statement of the applicable law. See BOEE Ex. 69 at 27-28.

In short, it is clear that the challenge that Petitioner attempts to mount to the Board’s interpretation of the obligations and responsibilities of circulators under District law is nothing more than "argument for argument’s sake." Petitioner’s attempt to lend some credence to its argument by wrapping it in First Amendment analysis cannot mask the fact that it is grounded in mischaracterizations of the record that are divorced from the reality of the Board’s ruling. Petitioner’s argument—which serves only to confuse what is otherwise clear—seeks to lead the Court into an unnecessary and unwarranted digression into First Amendment law, and should be rejected by this Court.

Back to top of page


B. The Board Properly Applied Its Interpretation of The Circulator’s Role and Responsibility To The Facts Of This Case

It is abundantly clear that the Board properly applied its interpretation of the circulator’s role and responsibility to the facts of this case. Six of the circulators who testified—all of whom initially asserted their Fifth Amendment right against self-incrimination and were subsequently granted immunity—stated unequivocally that at the direction, or with the knowledge, of individuals associated with the petition circulation companies, they did not comply with the statutory "in the presence" requirement, and thus signed a false affidavit. See BOEE Ex. 69 at 28-33. Other circulators—three by name—were also implicated in the same illegal conduct. Id. at 29, n.28, 30, 32-33. In addition, two circulators asserted their Fifth Amendment right against self-incrimination regarding the circulator’s affidavits that they signed, and thus were unavailable for testimony regarding their satisfaction of the requirements therein. Id. at 33-34. Accordingly, in view of the extent to which a false affidavit on an issue as critical as the "in the presence" requirement impugns the integrity of the circulation process, and an assertion of the Fifth Amendment privilege against self-incrimination precludes inquiry into such issues, the Board properly rejected the petition sheets attributed to these individuals. See Citizens Against Legalized Gambling v. District of Columbia Bd. Of Elections and Ethics, 501 F. Supp. 786, 790 (D.D.C. 1980); Williams v. District of Columbia Brd. of Elections and Ethics, 804 A.2d 316, 319 (D.C. App. 2002); BOEE Ex. 69 at 10-17.

The Citizens Committee has extensively cited Citizens Against Legalized Gambling v. Brd. Elections & Ethics, 501 F. Supp. 786 (D.D.C. 1980) without properly putting into context the nature of that decision or the subsequent changes to the D.C. Election law and the Board’s regulations since that decision was rendered. Citizens involved inter alia a challenge to a Board rule which failed to disqualify signatures on an initiative petition that were obtained by circulators who were not registered voters and who thus were in violation of a District of Columbia statute. At the time this matter was considered by the D.C. Federal District Court, D.C. Municipal Regulation 1607.9 "permit[ed] the Board to consider as valid a signature on a petition that ha[d] been solicited by a person who ha[d] not complied with the provisions of D.C. Code § 1-1116(h)." Citizens at 790.

The D.C. Code has changed considerably since this judgment was rendered in 1980. As aforementioned, the D.C. Code now provides that an entire petition shall not be accepted by the Board if the affidavit requirements are not met or the petition was circulated by a non-resident. D.C. Code §§ 1-1001.16(k)(1)(D), (E). The Board’s regulations reflect this same prohibition, D.C. Mun. Regs. tit 3 §§1006.3 (d), (e). These substantive changes in the D.C. law and the Board’s regulations governing the circulator process properly address the concerns raised when there is a question as to who actually circulated the petition sheets at issue. Citizens specifically noted that there was no such issue in that case:

In this case, it is alleged that some of the circulators swore that they were registered voters, and yet they were not. But the name of the circulator is correct, and all necessary information is provided. To deny the persons who signed these petitions the chance to have those signatures count-solely because of misconduct by others that does not cast doubt on the signatures themselves-would force this Court to stand on form rather than substance.

Citizens at 790 (emphasis added).

Whereas there was no allegation that the circulators did not perform the witness requirement or that citizens were misled as to the primary purpose of the petition in Citizens, the Challengers in the instant case challenged the petition on precisely those grounds. The circulators that testified to signing petition sheets that they did not circulate could in no way be legally accountable for observing and truthfully attesting to that process. These circulators also implicated other circulators who they witnessed engaging in the same conduct, (BOEE Exh. 69 at 32-33).

On the one hand, Petitioner does not appear to take issue with the Board’s findings of culpability or unavailability/unreliability regarding the foregoing individuals. See Pet’r Br. at 38-39 ("Accordingly, the Board rejected the petition sheets from each of the nine [sic, eleven] individuals about whom it had at least some evidence of malfeasance."). On the other hand, however, Petitioner seems to suggest that in the absence of an abundance of evidence of obvious forgeries, the violation of the "in the presence" requirement can be casually dismissed because "the numerous otherwise-valid signatures had simply been collected by a non-resident outside the presence of a resident circulator." See Pet’r Br. at 39. Much like Mr. Carl Towe, the owner and manager of Stars and Stripes, who viewed the circulator’s affidavit as a mere "legal technicality" on the bottom of the petition sheet (July 26 Tr. at 73-74), appellants now seek to relegate the statutory "in the presence" requirement, which appears on the circulator’s affidavit, to a position of virtual insignificance.

Petitioner cannot be serious in advancing such an argument. The Board has no authority to accept initiative petitions circulated by non-residents. See D.C. Code §§ 1-1001.16(k)(1)(D), (E). Further, the "in the presence" requirement is at the very core of the safeguards intended to help ensure the integrity of the petition circulation process. Neither Petitioner nor the Board has license to casually disregard this statutory requirement. Indeed, it is this requirement that places someone on the scene upon whom the Board and the Courts of the District of Columbia can call to attest to the circumstances surrounding the signature gathering effort.

Moreover, one cannot simply assume that signatures are, in fact, "otherwise valid" in the absence of obvious forgeries as Petitioner asserts. As the testimony of Robert Price—who testified that he did not know that his name appeared on a petition sheet until alerted to this fact by a news reporter—as well as Stephen Atkins and Forrest Jackson amply demonstrate, forgeries do not have to be obvious to the casual observer in order to be forgeries.

In short, the central role that the "in the presence" requirement plays statutorily, as well as in helping to ensure the integrity of the process, cannot be casually dismissed as suggested by the Petitioner. Circulators who sign petition sheets that they did not circulate cannot truthfully attest to the circumstances surrounding the signature gathering effort, therefore rendering the affidavit—and the benefits to the integrity of the process derived from the affidavit—a nullity. While cases of obvious forgeries, as in Williams, are unquestionably sufficient to warrant the rejection of petition sheets, this Court should decline Petitioner’s invitation to mandate that evidence of such forgeries is necessary or the sine qua non for such rejections.

Back to top of page


C. The Board’s Conclusion That The Instances of Individual Malfeasance Were Indicative Of A Broader Problem In The Petition Circulation Process Was Reasonable

Appellants argue that it was error for the board, having purportedly found "only limited instances of actual malfeasance" to have condemned the entire Stars and Stripes organization. Pet’r Br. at 40. According to appellant, "the handful of non-compliant circulators" were really just "cherry-picked examples of wrongdoing that illustrate the exception rather than the rule." Id. at 40, 48. Petitioner fails to appreciate the cumulative impact of the totality of the evidence in this case.

In view of the Challengers’ assertion that there was a pervasive pattern and practice of fraud, forgery and falsification of the Petition that warranted the rejection of the entire Petition, the Board viewed each aspect of the case, not only in isolation, but cumulatively. When the totality of the evidence is considered, the record amply supports the Board’s conclusion that there was a pollution of the petition circulation process that went beyond a handful of discrete instances of wrongdoing. The reasonableness of the Board’s decision is overwhelming in light of the evidence of irregularities and improprieties garnered from the witnesses who honored the Board’s subpoenas and testified as to the circumstances surrounding the collection of signatures on their petition sheets.

First, contrary to Petitioner’s assertion, the circulators from the Red Roof Inn operation who testified were not "cherry-picked examples of wrongdoing." Id. The Board, in performing its duty to maintain the integrity of the election process, sought to inquire about the circumstances of the collection of signatures on petition sheets by exercising its subpoena power to require circulators’ attendance and testimony pursuant to D.C. Code § 1-1001.05(h)(1)(A). Indeed, as the record reflects, the Board issued subpoenas for a total of one hundred and three (103) circulators, fifty-three (53) of whom the Board was unable to contact. The circulators from the Red Roof Inn operation who actually testified were those who responded to the subpoenas and were available to testify within the schedule in which the Board was working. (Board Exh. 6h at 108-115). Thus, the group of circulators who actually testified in response to subpoenas issued by the Board were not the "cherry-picked" lot that Petitioner claims. Pet’r Br. at 48.

Further, although the Petitioner is now claiming that the circulators from the Red Roof Inn operation who testified to malfeasance were "cherry-picked," the Petitioner had every opportunity to select and proffer its own witnesses from the Red Roof Inn to counter the testimony of those who testified adversely to its position. Petitioner could have brought in such witnesses on its own, or it could have requested that the Board subpoena witnesses. It did neither. Indeed, the Board found that there was a "deafening silence" from the Petitioner "in the face of the indisputably troubling evidence of wrongdoing in the operation at the Red Roof Inn." BOEE Ex. 69 at 48, 49. As the Board observed and the record reflects, all of the circulator witnesses proffered by Petitioner were associated with the 1501 M Street portion of the petition drive operation—which, as the Board found "provided a striking contrast to the operation at the Red Roof Inn." Id. at 49. None of those witnesses had any "contact with, or knowledge of, the activities associated with the Red Roof Inn." Id. Having chosen to sit back and "remain[] mum" during the course of the proceedings (Id.)—notwithstanding the opportunity to proffer evidence that the Petitioner deems favorable to its position—Petitioner should not now be heard to argue that the circulator witnesses who testified constituted a "cherry-picked" group.

Second, it is significant that ten (10) of the eleven (11) circulator witnesses from the Red Roof Inn who appeared before the Board asserted their Fifth Amendment right against self-incrimination—unlike their counterparts from the 1501 M Street operation. That such a large number of the witnesses from the Red Roof Inn who testified deemed it necessary to assert their Fifth Amendment right and to choose to testify only under a grant of immunity is telling. Indeed, of the eight (8) individuals who subsequently testified under a grant of immunity, six of them recounted clear violations of the "in the presence" requirement in which they had engaged at the direction, or with the knowledge, of individuals associated with the petition circulation companies. BOEE Ex. 69 at 28-32. Further, three other individuals were implicated by name in similar wrongdoing. Id. at 32-33. In addition to the three (3) named individuals, Tanisha Colbert testified more generically that she suggested signing petition sheets circulated by someone else because "everybody else was doing it." (BOEE Ex. 6h. at 29). Accordingly, just based on the testimony of these witnesses, the scope of the wrongdoing had expanded beyond their individual cases.

Third, there was further evidence that the violations of law involving the "in the presence" requirement were not isolated occurrences. Mr. John Capozzi submitted a written complaint to the Board and also testified that he personally observed individuals who were admittedly non-residents circulating petition sheets in Southeast, D.C. Board Ex. 3; BOEE Ex. 69 at 32. There also was evidence that such a practice apparently was ratified by some of the individuals to whom the petition sheets were submitted at the end of the day. Indeed, Tenisha Colbert and Antoine Jeffries testified that Mr. Jeffries – who had previously had no involvement in the circulation process, but was simply present with his friend in the hotel room of Mike Jones when petition sheets were being turned in—was drafted to sign the petition sheets of two non-residents who appeared in the hotel room and simply announced that they did not have a D.C. resident witness. (BOEE Ex. 6i at 62).

Fourth, there was also evidence of forgeries. Two witnesses testified that their signatures were forged on the circulator’s affidavit. Mr. Forrest L. Jackson testified that his signature was forged on forty petition sheets and Mr. Stephen Atkins testified that his signature was forged on eighteen petition sheets. (BOEE Ex. 6c at 129-38; id. at 115-16); (BOEE Ex. 69 at 34-35). Another witness, Mr. Robert Price, also testified that his signature, which appeared as one of the petition signers, was forged. Then, there were allegations about a "signing party" at which individuals were directed to copy names out of the telephone book. Although the Board could not determine how wide-spread this conduct was, the Board concluded – based especially on the testimony of Mr. Andre Rempson who stated that he was so directed and complied with the instruction – that at least some of this conduct occurred. (BOEE Ex. 69 at 35-36.)

Fifth, as the Board further noted, nine (9) witnesses that it attempted to subpoena listed addresses that were either non-existent or were for premises that were abandoned. (BOEE Ex. 69 at 47, n.45); (BOEEE Ex. 6i at 108-35). Such conduct obviously negatively impacts the Board’s ability to locate the circulator to inquire as to the veracity of his affidavit, and bears adversely on the credibility of the circulator.

Finally, at the beginning of the hearing, Petitioner conceded eighty-nine (89) petition sheets, and toward the end of the proceedings appellants conceded an additional three hundred and seventy-eight (378) petition sheets for a total of four hundred and sixty-seven (467) petition sheets. (BOEE Ex. 69 at 18). These petition sheets were conceded in the face of various challenges including illegible names and/or signatures of circulators on circulator’s affidavit of circulation, altered circulator affidavits, and that the circulator did not circulate the petition attributed to him/her as circulator. In addition, they involved a total of one hundred and thirteen (113) circulators—substantially beyond the particular circulators who testified before the Board.

By way of example, the names of seventeen different circulators appeared on a total of thirty-two petition sheets where the signatures were altered on the circulator’s affidavit of certification. Specifically, in each instance,one name was blackened out and replaced with another. Although the alteration does not permit one to discern the name that was blackened out in most instances, on seven (7) petition sheets the name Ray Kingsford was replaced with the name Hope Williams. The significance of this particular example is that Ray Kingsford is the same non-resident for whom Danielle Campbell testified that she signed petition sheets which he had circulated outside of her presence. See BOEE Ex. 69 at 29. Quite clearly, the non-residents – on whose behalf D.C. residents were signing petition sheets that the D.C. resident did not circulate – did not necessarily restrict themselves to a particular D.C. resident for signing purposes. This further illustrates the fact that the evidence of wrongdoing was not confined to the particular individuals who testified, but went much beyond.

The Board found, and the record confirms, that in response to this litany of improprieties and irregularities, Petitioner remained "essentially mum." (BOEE Ex. 69 at 49.) As in its current brief, Petitioner chose to rest on its unsubstantiated assertion that there were only a "few instances of individual malfeasance" by a "handful of non-compliant circulators." (Pet’r Br. at 44, 40). As discussed above, however, there is substantial evidence in the record to support the Board’s conclusion to the contrary.

Moreover, Petitioner’s alternative argument that the Board "ignored extensive evidence that . . . demonstrated substantial efforts by the Committee and Stars & Stripes to safeguard the integrity of the process" (Id. at 41) also does not aid its cause. Petitioner goes to great lengths to describe its purported "attention to the integrity of the process" and the "voluminous evidence of significant efforts to safeguard the petition-gathering process." Pet’r Br. at 42, 44. In this regard, Petitioner touts the alleged oversight and supervision of its managers, and the number of controls that were purportedly in place to ensure that the process was monitored and the petitions were given the proper review prior to acceptance, including Circulator Agreements, identification requirements, Supplemental Witness Declarations, and Notices to Petition Circulators. Id. at 41-43. Petitioner also touts the "purging process" and the follow-up "’quality assurance’ to check validity rates, accuracy, and ward distribution goals." Id. at 42, 43. Notwithstanding these "measures" however, the evidence reveals that, in the final analysis, there was no concerted effort to ensure that the law was adhered to, the procedures were followed, and the controls that were purportedly in place were there in more than name only. Indeed, the evidence amply supports the Board’s observation that "no one was minding the store." (BOEE Ex. 69 at 48).

Based on the testimony presented, the Board described in considerable detail significant deficiencies "in the conduct of the petition drive at the Red Roof Inn operation" that the Board concluded "came from the top, manifested itself in several ways, and created an environment that was ripe for the types of improprieties and irregularities that occurred." (BOEE Ex. 69 at 45-48). There is nothing in the litany of "controls" which Petitioner cites that even remotely detracts from the reasonableness of the Board’s findings in this regard.

For example, Petitioner describes an elaborate identification system and claims that "[t]he petition collection system required the circulators to provide identification upon turning in petition sheets – so their signatures on the petition affidavits could be matched against signatures on their IDs." Pet’r Br. at 9. However, as John Michael, Petitioner’s own manager testified, the D.C. resident circulators were not required to accompany the non-resident assistant when the petition sheets were submitted to the managers. (BOEE Ex. 6g at 352; BOEE Ex. 69 at 28). This reality was borne out by the testimonies, for example, of Danielle Campbell, who stated that she signed petition sheets circulated by non-residents for two days during the Fourth of July weekend when she remained at home (BOEE Ex. 6f at 289-90, BOEE Ex. 69 at 29-30); Evelyn Gerst, a housekeeper at the Red Roof Inn, who signed blank petition sheets at the request of a non-resident while she was cleaning his room at the hotel; and Stephen Atkins and Forrest L. Jackson, who testified unequivocally that they did not sign petition sheets which purported to bear their signatures as the circulator. As Mr. Michael candidly acknowledged, because the non-resident had custody and control of the petition sheets and the D.C. resident did not have to accompany the non-resident to turn in the sheets, he would not know whether the D.C. resident actually signed the petition sheet. (BOEE Ex. 6g at 353; BOEE Ex. 69 at 28). Nor would he know, of course, the circumstances surrounding the manner in which the signature of the D.C. resident was obtained. As the Board correctly noted, such an "unbridled level of control and discretion that the non-resident ‘assistants’ exercised over the petition circulation process … allowed them to manipulate the process and circumvent the laws of the District of Columbia." (BOEE Ex. 69 at 28).

Similarly, Petitioner noted that "as [Angelo] Paparella [of PCI] explained, the managers ‘were responsible to make sure that the circulators were working, producing signatures, complying with all the applicable laws, and making sure that they had all their paperwork properly done.’" Pet’r Br. at 10. These, however, were the same managers, who testified that they did not go out into the field (July 27 Tr. at 263, 269, BOEE Ex. 69 at 48); or like Mr. Towe, were too busy to participate in circulator training or to monitor circulator activities in the field. (July 26 Tr. at 63, 91). These were the same managers, who as the Board noted, allowed the non-residents to engage in the unsupervised recruitment of D.C. resident circulators from off the streets, thus paving the way for the kinds of irregularities that occurred in the recruitment of Evelyn Gerst, Angelo Farrell, and Forrest Jackson. BOEE Ex. 69 at 46; July Tr. at 293-294. They were the same managers who, like Mr. Towe, were unfamiliar with what some of the managers did in connection with the training of "the circulators they hired off the streets" (July 26 Tr. at 17); or like Mr. Michael, who simply left all aspects of the recruitment of D.C. resident circulators and their training to the non-resident assistants. July 27 Tr. at 293-295. In short, the picture painted by the actual testimony of the managers was a far cry from the well supervised and coordinated system that Mr. Paparella claims to have envisioned.

Then, according to Petitioner, there was Angelo Paparella himself, who testified that he received regular reports as to the activities "on the ground … on many days on an hourly basis …" (Pet’r Br. at 5). Yet, on an issue as important as the Clint Hyatt memo, which was prepared in response to allegations that non-resident assistants were substituting for D.C. resident circulators, Mr. Paparella had no knowledge of the memo and considered it "dumb." (Board Exh. 6i at 356). In like manner, while Pedro Alphonso, the Chairman of the Committee, was said to be aided by his "field managers … [who] ‘were the eyes and ears out in the field’" (Pet’r Br. at 9), Vickie Wilcher, the Treasurer of the Committee, testified that she spent "over an hour" in the field "during the five day period." (Board Exh. 6h at 527). In addition, as noted before, the managers from the petition circulation companies testified that they did not go out into the field. Once again, the type of oversight of the process that Petitioner touts was not borne out in reality. In short, far from the system that may have appeared on paper, the evidence received confirms the reasonableness of the Board’s conclusion that, in actuality, the environment was one that was "ripe for the types of improprieties and irregularities that occurred. (BOEE Ex. 69 at 45).

Finally, the Petitioner places great emphasis on the "purging process" and the "quality assurance" checks that were done on the petition sheets as means of safeguarding the integrity of the process. Pet’r Br. at 42-43. The testimony revealed, however, that these measures were employed for the purpose of determining the signatures for which the circulators should be paid. (Board Exhs. 6g at 42-60; 6h at 77-80). Indeed, it is undisputed that the petitioner submitted fifty six thousand and forty-four (56,044) signatures to the Board as purportedly valid signatures. It is not until after the Board’s staff had launched into the process of conducting its line-by-line review of this large volume of signatures and in the context of the hearing before the Board that the petitioner conceded 467 petition sheets. And, it was not until after the conclusion of the Board’s entire review process and the filing of its brief in this Court that the petitioner now admits that it has "withdr[awn] or acknowledged … some deficiency" in thirty-four thousand, three hundred eighty (34,380) signatures—or sixty-one percent (61%) of the 56,044 signatures—thus leaving 21,664 purportedly valid signatures. See Pet’r Br. at 10. This huge percentage of conceded signatures speaks volumes in terms of the credibility of the petition drive process in which the petitioner engaged. Moreover, if, in fact, the "purging process" and the "quality assurance" review were designed to safeguard the integrity of the process as the petitioner now claims, the benefit of the review process would presumably have been passed through to the Board. It obviously was not.

There can be no doubt that the evidence in this case more than amply supports the Board’s conclusion that there was a pollution of the circulation process that went beyond isolated instances of wrongdoing. Petitioner’s argument to the contrary should be rejected by this Court.

Back to top of page


IV. THE MESSAGE CONVEYED BY THE DISPUTED T-SHIRTS AND IN INSTRUCTIONS IMPARTED TO CIRCULATORS WERE FALSE AND MISLEADING

During closing arguments in this matter, counsel for the Petitioner stated – clearly and unequivocally – that the message on the T-shirts – SIGN UP! For Jobs, Schools, & Healthcare – misrepresented Initiative Measure No. 68:

CHAIRMAN LEWIS: Let's assume that we agree with that contention, that the proponents are not restricted to [advocating] the four or five bullets that are on the summary sheet attached to the petition sheet. I guess you would agree with me, however, that the prohibition against making misrepresentations nonetheless stands?

MR. RAY: Absolutely.

CHAIRMAN LEWIS: Okay. Now, let's start with the schools and health care issue, and we'll take up the brochure a little bit later on. Let's start with the schools and the health care issue. And to the extent that in the training classes and indeed on the yellow tee shirt there was an articulation that this initiative--you sign up for this initiative and you get basically an initiative that deals with schools, and that deals with health care. Tell me how you reconcile that with the fact that the committee does not have the authority to direct funds to schools and to health care.

MR. RAY: Madam Chairman, I think the yellow tee shirt was a mistake.

CHAIRMAN LEWIS: Okay. It may be a mistake, but my question is whether it is a misrepresentation?

MR. RAY: Madam Chairman, I would say it's also a misrepresentation, and I think that's why it was pulled as soon as it was learned about.

CHAIRMAN LEWIS: So you would acknowledge that as written and as advertised on that tee shirt, that constitutes a misrepresentation?

MR. RAY: Yes.

(BOEE Exh. 6i at 229-230). In addition to stating this conclusion, counsel explained the underlying rationale:

MR. RAY: But I do think if you have somebody sign up, you know, for jobs, sign up for schools, sign up for health care, the clear implication of that is that's what you're signing up for.

(BOEE Exh. 6i at 231).

Counsel’s concession was a reflection of the evidence in the Hearing record which indicated first, that the T-shirts constituted a misrepresentation of Initiative Measure No. 68, and second, that the Petitioner and its agents knew this to be the case. Vickey Wilcher, treasurer of the Citizens Committee, testified that upon seeing circulators wearing the T-shirts, she instructed Clint Hyatt, an assistant to Stars and Stripes President Carl Towe, to collect them because she knew that circulators could not wear them. (BOEE Exh. 6g at 501-02) Mr. Towe testified that "the T-shirts were not matching what was [] on the petition, and that we didn't want to have any false representation or misrepresentation of the petition, and that we need–-aren't to mislead anybody in any way, what they w[ere] signing, we needed to get those T-shirts off of the streets immediately." (BOEE Exh. 6f at 40).

Counsel’s concession is significant in that it obviously reflects an appreciation for, and recognition of, the facts as they were presented at the hearing as well as the underlying context in which this issue arises – specifically, the circumstances which preceded the acceptance of this initiative as a proper subject for an initiative in accordance with the applicable law. Now, divorced from both the testimony at the hearing which bears on the issue and the background facts which provide the context – both of which are conspicuously absent from the Petitioner’s brief – Petitioner argue that the message on the T-shirt was not a misrepresentation after all. However, the facts and the context do matter in analyzing this issue, and are fully consistent with counsel’s conclusion that the message on the T-shirts constituted a misrepresentation of Initiative Measure No. 68.

The facts and context indicate that the original version of Initiative Measure No. 68 that was submitted to the Board on April 22, 2004 included legislative text which included merely the recommendation that two funds—the "District of Columbia Public Schools Fund," and the "District of Columbia Senior Citizens Prescription Drug Benefits Fund" – be established. That version also included the mere recommendation that revenue generated from the lottery expansion be divided equally between these two funds and the District’s general revenue fund. However, the summary statement in the April 22, 2004 version, which the Petitioner presumably hoped that potential signatories would see, indicated that Initiative Measure No. 68 "will … generate revenue for programs to improve the District’s public schools and assist District senior citizens in obtaining prescription drug benefits[.]" (BOEE Exh. 44 at 4). The summary statement added that "[t]he monies raised [pursuant to the measure] will be deposited in the District’s general revenue fund with the advice of District voters that the monies be used to improve District public schools and to assist District senior citizens in obtaining prescription drugs." Moreover, the short title of the April 22, 2004 version of Initiative measure No. 68 – "Jobs, Education, and Healthcare Lottery Expansion Initiative of 2004" – was clearly intended to impart to voters a message that the measure was as much about education and healthcare as it was about expanding the lottery, which it was, and is, not.

The inaccuracies in the short title and summary statement for the original version of Initiative Measure No. 68 as formulated by the Citizens Committee prompted the District of Columbia Attorney General, Robert Spagnoletti, to comment at length about the possibility that the short title and summary statement would "confuse" voters. In a May 27, 2004 letter to the Board concerning whether or not Initiative Measure No. 68 was a proper subject for an initiative, Mr. Spagnoletti went beyond that limited analysis and noted that "[Initiative Measure No. 68] tries to ‘sell’ the proposal by promising monies for education and health purposes[.]" (Resp. App. Exh. 1). The Attorney General further wrote that the short title "does not accurately reflect that the Initiative only recommends that tax proceeds be used for education and healthcare purposes[,]" and that the "single reference to ‘advice’ in the Summary Statement may mislead people reading [it, who] may not understand that the Council is not obligated to use the funds as ‘advised.’" Id. (emphasis added).

On May 28, 2004, the Citizens Committee submitted a revised version of Initiative Measure No. 68 which addressed the concerns raised by the Board and the Attorney General. Specifically, the revised short title omitted references to jobs, education, and healthcare, and the revised summary statement indicated that the measure merely recommended that the revenue generated from the measure be used to advance public schools and healthcare in the District. That the Petitioner altered its formulations of the original version’s short title and summary statement, clearly reflecting its recognition that the initiative could not deliver on the "promises" regarding education and healthcare.

The record of the Hearing also reflects that Ross Williams, the individual affiliated with Stars and Stripes who conducted the circulator training sessions on behalf of the Citizens Committee, made statements during these sessions which imparted the notion that Initiative Measure No. 68 guaranteed benefits in the areas of education and healthcare. During the Board’s Hearing, on July 27, 2004, Mr. Williams testified under oath that he instructed circulators to rely on education and health care benefits of the Initiative in order to encourage voters to sign the Initiative Measure No. 68 petition. He testified that he encouraged his trainees to say that Initiative Measure No. 68 "was about health care;" "that health care would be part of the package;" and "that there would be monies isolated out of the process that would go towards education." (BOEE Exh. 6g at 25, 28, 26)(emphasis added). These statements clearly misrepresent Initiative Measure No. 68. The legislative portion of the measure is not about healthcare, does not include healthcare as a part of its package, and does not isolate monies that will go towards education.

There is absolutely nothing in Mr. Williams’ testimony which indicated that he conveyed to circulators that Initiative Measure No. 68, even if passed, would not guarantee the benefits he instructed them to rely on in order to garner signatures for the Petition. Rather, the language used by Mr. Williams’ in his training sessions – according to his own sworn testimony -- conveyed the impression that benefits in education and healthcare were not potential secondary effects of the measure, but assured primary effects. To be sure, Mr. Williams did testify that he instructed circulators to tell potential signatories that Initiative Measure No. 68 was about gambling, but there was simply no distinction made between gambling, the expansion of which would automatically occur if the initiative passed into law, and benefits in education and healthcare, which would not automatically be established. The Citizens Committee tries to distract from this truth by contending that Mr. Williams’s statements were not false and/or misleading because "the stated purpose of Initiative 68 is ‘[t]o amend the Law [by] … recommending that revenues accruing to the District from the operation of video lottery terminals be distributed equally to the District of Columbia Public Schools Fund, [and] the District of Columbia Senior Citizens Prescription Drug Benefits Fund[.]" Pet. Brief at 21. However, the reference to this provision underscores the Board’s point regarding the falsity of Mr. Williams’ instructions: these funds do not exist, and can not be created pursuant to Initiative Measure No. 68.

Even as the Citizens Committee conceded that the language on the T-shirts constituted a misrepresentation of Initiative Measure No. 68, it continued to argue that the statements made by Mr. Williams during his circulator training sessions were not. However, no credible distinction can be made between the language on the T-shirt and Mr. Williams’ oral communications; both were designed to induce potential signers to sign the petition based on the representation that the initiative would produce benefits for schools and healthcare. But Initiative Measure No. 68 did not—and could not—make any such promise or guarantee, and the Citizens Committee’s actions confirm that they were well aware of this fact. (See BOEE Exh.69 at 40-42).

The Citizens Committee asserts that the Board implicitly and erroneously concluded that "significant numbers of circulators heard Williams [and] understood his remarks in the way the Board interpreted them and then actually solicited signatures by claiming … that the Initiative would guarantee ‘jobs, education, or healthcare[.]’" Pet. Br. At 19. The Hearing record manifests a substantial basis for the Board’s conclusion: it shows that Mr. Williams trained the majority of potential circulators from the Red Roof Inn operation, and that he conducted training sessions four times per day for five days – and trained between 105 and 110 people -- starting on June 30. (BOEE Exh. 6g at 64). Clearly, his audience was comprised of a significant number of the Initiative Measure No. 68 petition circulators. Mr. Williams also testified that the substance of his training remained constant during the entire period that he trained the circulators. (BOEE Exh. 6g at 167).

As established above, the substance of Mr. Williams’ training, which was informed not by an examination of Initiative Measure No. 68 itself, but rather by brochures and three poster boards which simply stated jobs, education, and healthcare, respectively, (BOEE Exh. 6g at 25-26) included statements to circulators which indicated that Initiative Measure No. 68 would produce benefits for schools and healthcare. The Board had no basis upon which to believe that the many circulators who heard Mr. Williams’ flawed instructions did not comply with them. Rather, the evidence presented in the Hearing revealed that, not only were the circulators instructed to provide information in a manner that constituted a misrepresentation of Initiative Measure No. 68, but they followed those instructions. For example, Danielle Campbell testified that she heard several circulators tell potential signers that Initiative Measure No. 68 would lower the prices of medicine for senior citizens. (BOEE Exh. 6f at 319-20). Similarly, in a written complaint received by the Board from Dwayne L. Smith, he stated:

"She [the circulator] asked me to sign the petition for health care in the District. I read the petition twice and did not find any reference to health care but saw references to a video lottery terminal initiative."

In short, both the message on the T-shirt and Mr. Williams’ instructions misrepresented Initiative Measure No. 68, and this Court should so find.

Back to top of page


V. THERE IS STATUTORY AUTHORITY FOR THE BOARD’S REGULATION REQUIRING CIRCULATORS TO ATTEST THAT THEY MADE NO FALSE STATEMENTS ABOUT THE INITIATIVE TO SIGNATORIES

Having failed to demonstrate that no misrepresentations were made regarding the substance of Initiative Measure No. 68, the Citizens Committee next seemingly argues that, even if false or misleading statements were made in connection with Initiative Measure No. 68, such statements provide no basis upon which to strike the Petition sheets signed by circulators associated with Stars and Stripes because the Board lacks authority to require that circulators attest to the absence of false statements. See D.C. Mun. Regs. tit. 3, § 1003.6(g)(1998). This argument, too, is without merit.

Pursuant to the "Initiative, Referendum and Recall Charter Amendments Act of 1977," registered voters in the District are allowed to propose legislation and present it to the District’s electorate for approval. However, a proposed initiative measure may not be presented to voters for approval unless it is found to be a proper subject for initiative in accordance with the applicable law, and it is demonstrated to have broad-based popular support. This support, pursuant to District law, must be manifested by a petition which bears the valid signatures of five percent of registered voters in the District both at the city-wide level and in at least five of the District’s eight wards. See D.C. Official Code § 1-1001.16(i).

The statutory requirement that an initiative measure be shown to have broad-based support across the District, as determined by a given percentage of valid signatures, would be rendered meaningless if proponents of an initiative measure and/or their agents were allowed to misrepresent the measure to voters while endeavoring to persuade electors to sign the supporting petitions. Invariably, voters simply do not take the time to inform themselves adequately about the precise nature and effect of proposed measures, or to even read the summary statements contained on initiative petition sheets. Instead, they rely heavily on the information provided by the initiative petition circulators who are soliciting their signatures. If this information is false or misleading, voters may be induced into signing a petition supporting a measure which they do not actually support, leading to a distortion of the actual level of support for a measure, and signatures that are not validly obtained, and hence invalid.

The Board’s regulation requiring circulators to attest that they "ha[ve] not made any false statements regarding the initiative or referendum to anyone whose signature is appended to the petition" helps to insure that voters who sign initiative petitions are not given false or misleading information concerning proposed measures, and thereby mistakenly sign an initiative measure petition against conscience. This regulation, moreover, was promulgated consistent with the Board’s "considerable leeway to protect the integrity and reliability of the initiative process, [and] election processes generally[,]" Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182,191, and to make certain that these processes are conducted in a "fair and honest" manner. Id. at 187.

Back to top of page


VI. THE FALSE STATEMENTS CONVEYED BY THE DISPUTED T-SHIRTS AND IN INSTRUCTIONS IMPARTED TO CIRCULATORS DO NOT CONSTITUTE CORE POLITICAL SPEECH WHICH IS TO BE PROTECTED

As the Board strives to fulfill its duty to protect the integrity and reliability of the initiative petition circulation process, however, it remains ever mindful of the fact that the "circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as core political speech." Meyer v. Grant, 486 U.S. 414, 421-422 (1988). Accordingly, the Board constantly endeavors never to unnecessarily infringe upon the First Amendment rights of parties involved in initiative petition circulation. In the instant case, the Board has not encroached upon First Amendment rights, because the statements that the Board has attempted to regulate do not constitute the "core political speech" which the First Amendment was established to protect.

As the U.S. Supreme Court noted in Brown v. Hartlage, 456 U.S. 45 (1982)("Brown"), "demonstrable falsehoods are not protected by the First Amendment in the same manner as truthful statements[,] … [b]ut erroneous statement is inevitable in free debate, and … it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive[.]" Id. at 60.

In Brown, the Court overturned the decision of a Kentucky appeals court which had voided an election after it found that the winning candidate violated the Kentucky Corrupt Practices Act by stating during his campaign that he would work for a reduced salary. Unbeknownst to the candidate, this statement was false because the salary for the office he sought was fixed by law. In overturning the Kentucky appellate court decision, the Court stated that the Kentucky Corrupt Practices Act, as applied by the state court, did not afford the requisite "breathing space" to core political speech. The Court specifically found that the statute’s application was defective because it established a penalty of absolute liability for a political false statement where "[t]here ha[d] been no showing [that the candidate] made the disputed statement other than in good faith and without knowledge of its falsity, or that he made the statement with reckless disregard as to whether it was false or not." Brown, at 61. Accordingly, where false political statements are made with knowledge of their falsity, or with reckless disregard as to whether they are false or not, they are not protected.

The record before the Board indicated that the misrepresentations communicated both through the disputed T-shirts and the instructions imparted by Ross Williams to circulators during training sessions were made with reckless disregard as to whether they were false or not. That this is the case is most poignantly demonstrated by the fact that the Stars and Stripes managers, including Mr. Williams, never personally reviewed the substance of Initiative Measure No. 68, even though their organization had been entrusted with substantial responsibilities in the petition circulation process, including circulator training. Because they did not read the text of Initiative Measure No. 68, they saw nothing wrong with distributing T-shirts that the Citizens Committee deemed inconsistent with, and misrepresentative of, the measure, and accordingly recalled. Mr. Williams, by his own admission, didn’t care at all "[why the T-shirts were being pulled back] because [he] had enough to do, and [he] didn’t need more information than [he] needed to know." (BOEE Exh. 6g at 165). However, had he taken the time to educate himself as to the reasons for the recall of the T-shirts, he would have understood, as the Citizens Committee and his own direct supervisor, Carl Towe, clearly did, that the T-shirts were "were not matching what was [] on the petition [which contained an accurate synopsis of the measure][.]" (BOEE Exh. 6f at 40).

Taking the time to learn about the problematic nature of the T-shirts might have led Mr. Williams to discontinue to utilize during his circulator training sessions a sales pitch which, like the T-shirts, conveyed the erroneous impression that Initiative Measure No. 68 guaranteed benefits in education and healthcare. However, Mr. Williams unfortunately did not take this time. Instead, Mr. Williams continued to rely on information from cryptic poster boards and a document which only superficially discussed the measure, and to pass on misinformation about its substance and effect to circulators, who were on the front lines of the petition drive communicating one-to-one with voters. Moreover, he was never encouraged by anyone in either the Citizens Committee or Stars and Stripes to halt this spread of false and misleading information; rather, he testified that "they knew what [he] was espousing in the presentations [and] [n]o one asked [him] to change that." (BOEE Exh. 6g at 166).

This failure on the part of Stars and Stripes representatives to gain an understanding of the substance of Initiative Measure No. 68 facilitated the proliferation of misrepresentations concerning the measure. More importantly, it caused the circulators operating under the auspices of Stars and Stripes to misrepresent the measure to voters, which resulted in the violation of the attestations in the circulator’s affidavit that prohibits the making of false statements regarding the Initiative.

Back to top of page


VII. THE TAINT IN THE CIRCULATION PROCESS WAS MOST CONCENTRATED IN THE STARS AND STRIPES ORGANIZATION

The testimony before the Board revealed that the Citizens Committee entered into an agreement with Progressive Campaigns, Inc. (PCI), a professional California petition circulation company in late spring or early summer of 2004, for the management of the petition drive. As the prime contractor, PCI engaged several independent contractors to fulfill its contract with the Citizens Committee. These subcontractors included, inter alia, Stars and Stripes, which was owed and managed by Carl Towe, and based in Florida. Stars and Stripes subcontracted with the Activist Group, which was owned and managed by Ross Williams; Charles Snow; Grant Sawyer; and Chad Towe. Each of the Stars and Stripes independent contractors then hired their own managers and workers, some from outside of the District of Columbia, to assist with the petition drive. Most of the Stars and Stripes non-resident managers and assistants resided at the Red Roof Inn.

Based on many of the factors discussed above, the Board found that the Stars and Stripes operation, which was the principal organization at the Red Roof Inn had a very splintered, uncoordinated approach to the management of the Petition drive characterized by a lack of discipline that contributed to "an environment that was ripe for the type of improprieties and irregularities that occurred". (BOEE 69 at 45-48). Such wrongdoing did, in fact, flourish within that organization, as reflected by the fact that the core group, from which the Board heard testimony, worked under the auspices of Stars and Stripe. Several non-residents, who were involved in wrongdoing, also were affiliated with Stars and Stripes. Of course, Carl Towe, Ross Williams and Clint Hyatt were all leaders within that organization.

Based on the foregoing, it was reasonable for the Board to conclude that the focus of the wrongdoing was within the Stars and Stripes organization.

The Board properly considered First Amendment interests by tailoring its ruling to those individuals who were clearly identified as associated with Stars and Stripes. Thus, of the 332 D.C. resident circulators, the Petition sheets of 67 circulators were rejected.

Back to top of page


CONCLUSION

For the foregoing reasons, the Court should uphold the decision of the Board, and deny ballot access to Initiative Measure No. 68 on the November 2004 ballot for consideration by the voters of the District of Columbia.

Respectfully Submitted,

Kenneth J. McGhie (Bar No. 385313)
Alice Miller (Bar No.
Terri D. Stroud (Bar No. 465884)
Rudolph M. D. McGann, Jr. (Bar No 471731)
D.C. Board of Elections and Ethics
One Judiciary Square
441 4th Street, N.W., Suite 270N
Washington D.C. 20001-2745
(202) 727-2194

Back to top of page


Send mail with questions or comments to webmaster@dcwatch.com
Web site copyright ©DCWatch (ISSN 1546-4296)