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No. 04-AA-957 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE,
Petitioner, On Petition for Review of the District of Columbia Board of Elections and Ethics Reply Brief to American Civil Liberties Union Amicus Curiae Brief by DCWatch and DC Against SlotsDorothy Brizill, pro se Carol Colbeth (D.C. Bar No. 439198) LIST OF PARTIES1. Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, represented by: George W. Jones, Jr. Erik S. Jaffe John Ray 2. Respondent District of Columbia Board of Elections and Ethics, represented by: Kenneth J. McGhie, General Counsel 3. Intervenor Ronald L. Drake, Pro Se 4. Intervenor DCWatch, Pro Se 5. Intervenor DC Against Slots Carol Colbeth (Bar No. 439198) 6. Amicus curiae TABLE OF CONTENTSList of Parties The Amicus Curiae Brief Is Incorrect on Several Factual Grounds Conclusion TABLE OF AUTHORITIESStatutes DC Code §1-1001.16(o)(1), 7, 8 Intervenors DCWatch and DC Against Slots submit this brief in reply to the American Civil Liberties Union's amicus curiae brief that was accepted by this Court on August 31, 2004. ARGUMENTThe Amicus Curiae Brief Is Incorrect on Several Factual IssuesWith regard to the facts of the case, and in its description of the Board of Elections and Ethics' handling of Initiative 68 after it was filed on April 22, 2004, through the Board's hearing on the petition challenges), the American Civil Liberties Union's amicus brief relies completely on the presentation and recitation of facts from the Petitioner's appeal brief. From its reliance on that sole source, the brief draws the erroneous conclusion that "alleged false statements were indeed the principal, if not the only, basis for the Board's decision" (ACLU brief at 4-5). The reliance of the amicus brief on the Petitioner's brief as the sole source of its factual understanding leads the amicus into several factual errors that are detailed below. In Footnotes 3 and 7 (ACLU brief at 3, 6), the amicus brief complains that the Board's order with regard to the challenges does not contain the conclusion that the petition had failed to reach the required number of signatures of qualified registered voters. The brief fails to understand that the Board of Elections was pursuing two parallel, though independent, reviews of the petitions at the same time. At the conclusion of its hearing on the challenges, on August 3, 2004, the Board announced its findings with regard to those challenges (Oral ruling is August 3, 2004, Tr., Exhibit 67; written order is Exhibit 69). However, the Board had not yet completed its staff's review of the petitions, and its comparison of them to the voting rolls. It could not announce whether or not the petitions contained enough qualified signatures until that process was completed on the petition sheets that still remained in the eligible universe. When that process was completed, the executive director of the Board issued her memorandum and determination of whether the petition could be certified (Exhibit 68); the determination could not have been made earlier. The amicus brief erroneously claims, simply quoting the argument made in the Petitioner's brief, that "the principal reason for rejecting all signatures collected by persons affiliated with Stars and Stripes was that those circulators had, in the Board's view, made false and misleading statements to potential signers that the initiative would produce benefits for schools and healthcare" (ACLU brief at 4). In its reliance on the Petitioner's brief, the amicus fails to acknowledge any of the primary findings of "flaws in the process" that the Board stated in its written order at 2-3 (Exhibit 69). The amicus brief is incorrect, because it fails to understand the process used, in its attempted explanation of how the Board arrived at its conclusion that the petition for Initiative 68 had only 14,687 signatures (ACLU brief at 4-6). Although there were initially 56,044 signatures on 3,869 petition pages, the Board of Elections and Ethics' staff verified the voter registration status of petition signers pursuant to DC Code §1-1001.16(o)(1) (see Exhibit 68). As the Board's Executive Director states in her memorandum, after the verification process, the removal of signatures that were conceded by the Citizens Committee for Video Lottery Terminals, and the removal of signatures on petitions successfully challenged by Ronald Drake, the total number of registered voters who were listed on the petition was found to be 21,279 (Exhibit 68 at 3). Then, the Board applied the results of its ruling on August 3, 2004, on the challenge of DCWatch and DC Against Slots. "As a result of the final decision on the challenges filed against the petition, the remaining number of apparent verified signatures is 14,687" (Exhibit 68 at 4-5). The amicus brief argues that, "It is obviously none of the Board's concern whether a petition operation is well or poorly managed or whether the managers have personally read the DC Code or the text of the proposed measure" (ACLU brief at 7, footnote 9). This misunderstands the Board's concern with the management of signature gathering efforts. The amicus may be claiming that petition circulators cannot be obliged to obey any election laws at all, not just the law against making false statements to voters. It may be claiming that the corrupt election practices statute (DC Code §1-1001.16(k)(1)) is unconstitutional as a whole. But unless that is the claim being made, petition circulators must have an adequate knowledge of the election laws that they must follow, and that they swear in their affidavits that they did follow. Circulators may have that knowledge from their own prior experience or from the training that is regularly offered by the Board of Elections and Ethics. In this case, the circulators hired by Stars and Stripes did not have that knowledge, and Stars and Stripes did not even inform them that such training was available from the Board. By offering its own "training," really recruitment, sessions to petition circulators, Stars and Stripes assumed the responsibility of informing its circulators of the laws that they were obliged to follow and of the importance and meaning of the affidavit that they signed regarding their adherence to those laws. The initiative committee's and Stars and Stripes' failure to perform the duty that they assumed is a completely valid point for the Board to make in reaching the judgment that the entire petition circulation effort managed by the Committee and the firm were deficient with respect to the law. The amicus brief does accept the applicability of the corrupt elections practices statute when it erroneously claims that the only legal grounds for rejecting a petition are enumerated in DC Code §1-1001.16(k)(1) (ACLU brief at 17). However, the brief fails to recognize that the grounds stated in the Code are supplemented by the provisions in the District of Columbia Municipal Regulations (specifically 3 DCMR, Elections and Ethics, §1009) regarding the "validity of signatures on petitions." The D.C. Board of Elections and Ethics Opinion Did Not Rely on First Amendment GroundsThe American Civil Liberties Union's amicus brief misunderstands and misstates the order issued orally by the DC Board of Elections and Ethics on August 3, 2004 (Exhibit 67), and affirmed in its written order on August 13, 2004 (Exhibit 69), and it ignores the abundant evidence presented in the transcripts of its nine days of hearings. Contrary to the contention of the amicus, the DC Board of Elections and Ethics based its decision to strike petitions gathered by circulators and purported circulators associated with Stars and Stripes on the basis of uncontradicted and unrebutted evidence of pervasive false and forged circulator affidavits, and on overwhelming evidence that the entire petition circulation process managed by this company was permeated with fraud (Exhibit 69 at 2-3). The introduction of First Amendment issues by the amicus is a diversion from the central issues addressed by the Board. On this issue, DCWatch and DC Against Slots stand on the arguments made in their August 27, 2004, brief at 20-25; and we adopt the arguments made in the DC Board of Elections and Ethics August 27, 2004, brief at 13-33, 40-42, and 46-47; and in the Ronald Drake August 27, 2004, brief at 10-14. Nevertheless, DCWatch and DC Against Slots, as well as the DC Board of Elections and Ethics and intervenor Ronald Drake, did address First Amendment issues in their briefs. DCWatch and DC Against Slots stand on their discussion of the First Amendment issues in their August 27, 2004, brief at 25-30. In addition, we adopt the discussion of the First Amendment issues in the DC Board of Elections and Ethics August 27, 2004, brief at 33-45, and in the Ronald Drake August 27, 2004, brief at 14-15, 22-25. Like the Petitioner, the amicus brief takes the position that petition circulators are free to utter any lie, make any misrepresentation, and use any trick to induce a registered voter to sign a petition; and that the Board of Elections has no legislative or constitutional authority to protect voters from the most blatant or deliberate fraud in the circulation of petitions. Like the Petitioner, the amicus holds that the voter who can be easily deceived deserves to be defrauded; that the professional circulator who hides the wording of the petition under other literature or by presenting only its reverse, non-text, side to the voter, and who then lies about the subject of the petition to the voter, is merely engaged in spirited political discussion; and that signatures gathered by fraud and deception must be credited by the Board of Elections as the actual efforts of citizens to petition their government. The amicus brief fails to understand or appreciate that initiative petition circulators have two roles, roles that are set in law and that subject them to two sets of duties. Petition circulators are agents and representatives of the proponents of the initiative. But circulators are also agents and representatives of the District of Columbia Board of Elections and Ethics while they gather the signatures. They are extensions of and surrogates for the Board of Elections in ensuring the fairness and integrity of the signature gathering process, and their affidavits, in lieu of direct and immediate supervision by Board of Elections, attest to the fact that they have carried out their duties in compliance with District law and regulations. In their role as agents for the proponents of the initiative, circulators are free to engage in discussion and advocacy and free to persuade registered voters of the merits of their proposal, but that freedom is not unfettered and unlimited because of the dual nature of their role. As representatives and agents of the Board of Elections, they may not lie to voters in order to obtain their signatures; they may not misrepresent the nature and purpose of the initiative; they must ensure and attest to the fact that they have upheld the integrity of the signature gathering process. On an election day, proponents of candidates and of initiatives are kept outside of polling places, where they are free to distribute campaign literature and engage voters in discussions about election issues. However, inside the polling places election workers ensure that voters get the correct ballots and assist voters in a neutral way to understand exactly what is on those ballots. The amicus brief, at 2, presents as a hypothetical terrible consequence of the Board of Elections opinion that, "Followed to its logical conclusion, the Board's reasoning in this case would authorize the Board to set aside the results of balloting on an initiative on the grounds that proponents had mischaracterized the measure in their communications with voters." That is a false conclusion as it relates to initiative proponents, but it is completely accurate with regard to poll workers. The Board of Elections would be compelled to set aside the results of balloting on an initiative if it found that its poll workers in the precincts had systematically misrepresented the measure to votes. If, for example, poll workers had regularly mischaracterized the initiative to voters as being about something other than its actual subject. In many regards, petition circulation and balloting are parallel processes, and the Board of Elections must safeguard the integrity of both. The amicus' equation of petition signature gathering to balloting is a good one, but the amicus fails to draw the correct conclusion from it: petition circulators may be agents of the initiative's proponent, but they also stand in the same position as poll workers in their responsibility to the Board of Elections and Ethics. The only way for petition circulators to escape this restriction, and to exercise an unfettered right to mislead and deceive voters, is for them to relinquish their role as signature gatherers, and to concentrate solely on political speech and advocacy that encourages voters to sign the petition. When proponents of an initiative accept the role of petition circulators, they willingly accept from the Board of Elections and Ethics its delegated responsibility, not only to ensure the integrity of voters' signatures, but also to ensure that voters are properly and accurately informed of the initiative measure set before them. The government of the District of Columbia could set up a different system for gathering signatures for initiatives and referenda. It could require that all signatures for petitions be signed at official government offices, under, for example, the oversight of representatives of the Registrar of Voters. Proponents of initiatives and referenda could then have completely unfettered freedom to attempt to mislead and trick voters about their proposed ballot measures, since the actual signatures would be gathered under the watchful eye of neutral agents of the Board of Elections and Ethics. Those agents could ensure that voters were given a copy of an had an opportunity to read at least the Short Title and Summary Statement of the initiative or referendum, and that they understood what the measure entailed and what it did not entail. Of course, this arrangement would make it much more difficult for proponents of initiatives and referenda to gather signatures for their measures. The ability to engage a voter in a discussion on the street or in a meeting and solicit his or her signature immediately is a great benefit for initiative proponents, and makes their task much easier. In exchange for that convenience, proponents who gather signatures must agree to respect, obey, and enforce restrictions similar to those that the Board of Elections and Ethics places on its own employees. They agree not to misrepresent, to lie, or to trick voters. Signature gatherers for a candidate must likewise agree that they will correctly represent which candidate their petition is for, and that they will not gather signatures by representing their petition as being for whomever the voter supports. Signature gatherers for an initiative agree to inform voters accurately about the nature and purpose of the measure they wish to place on the ballot. That is a simple and minimal requirement to place on circulators in exchange for the ability to gather signatures outside of the direct supervision of the Board of Elections, and the Board of Elections has a right and a responsibility to require it and to enforce that requirement. CONCLUSIONFor the reasons stated above, the Court should affirm the decision of the Board of Elections and Ethics not to certify Initiative 68 for the ballot because its petition did not contain enough valid signatures. Respectfully submitted, Respectfully submitted, Carol Colbeth (Bar No. 439198) CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Reply Brief to the Amicus Curiae Brief by DCWatch and DC Against Slots was hereby delivered by facsimile or by E-mail (by permission of the receivers) this 2nd day of September 2004 upon the following: George W. Jones, Jr. Erik S. Jaffe John Ray Kenneth J. McGhie, General Counsel Ronald L. Drake, Pro Se Jeffrey D. Robinson, Esq. (D.C. Bar No. 376037) Arthur B. Spitzer Dorothy A. Brizill |
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