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No. 04-AA-957
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR D.C. VIDEO LOTTERY TERMINAL INITIATIVE,
Petitioner, On Petition for Review of the District of Columbia Board of Elections and Ethics Reply Brief for Respondent District of Columbia Board of Elections and Ethics In Response to Brief of American Civil Liberties Union of The National Capital Area as Amicus CuriaeKenneth J. McGhie (Bar No. 385313)* *Counsel for Respondent D.C. Board of Elections and Ethics LIST OF PARTIES1. Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, represented by: George Jones, Jr. Erik S. Jaffe John L. 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 DC Watch, Pro Se 5. Intervenor DC Against Slots, Pro Se TABLE OF CONTENTSLIST OF PARTIES I. THE ACLU HAS CHOSEN TO IGNORE THE ALLEGATIONS, THE TESTIMONY AT THE HEARING AND LARGE PORTIONS OF THE BOARD’S RULING 1. Residents Signing Affidavits for Non-Residents While
"Outside the Presence" II. THE BOARD’S FINDING THAT INITIATIVE MEASURE NO. 68 WAS
MISREPRESENTED IS CONSISTENT WITH THE FIRST AMENDMENT CONCLUSION TABLE OF AUTHORITIESCase LawSupreme Court Decisions Brown v. Hartlage, 456 U.S. 45 (1982) StatutesD.C. Code § 1-1001.08 The Court granted the American Civil Liberties Union ’s Motion to enter an appearance and file its brief as Amicus Curiae. Respondent, D.C. Board of Elections and Ethics, respectfully requests the opportunity to submit this response to the Brief of the American Civil Liberties Union of the National Capital Area. ARGUMENTI. THE ACLU HAS CHOSEN TO IGNORE THE ALLEGATIONS, THE TESTIMONY AT THE HEARING, AND LARGE PORTIONS OF THE BOARD’S RULINGIt is apparent from the brief submitted by the ACLU that its representatives were not at the hearing on the challenges to Initiative Measure No. 68, did not review the transcript of the Board’s proceedings, and chose to quote very selectively from the Board’s oral and written opinions. If this were not the case, the ACLU certainly would have recognized what is obvious: that the Board never excluded any petition sheets – let alone those of 58 circulators – based "solely", "primarily" or "principally" on false and misleading statements as they claim. See ACLU Br. at 4, 6, 8, 9.1 The ACLU’s conclusion to the contrary is grounded in a conspicuous avoidance of large portions of the Board’s oral and written opinions. In focusing solely on certain select passages from those opinions that discussed the false advertising conclusion, the ACLU pretends as if the rest of the opinion does not exist. Thus, for example, one would never know from reading the ACLU’s description of the Board’s oral ruling that the Board not only discussed in detail other irregularities and improprieties, but noted that "[t]here were several issues [not just one] that the Board found troubling with respect to the operations out of the hotel and principally the Red Roof Inn." (BOEE Ex. 67 at 17). Nor would one know that the Board stated explicitly that "in addition to … the false statements and representations … there were certain problems that the Board discerned from the evidence with respect to the process as a whole that appeared to be centered in the Red Roof Inn." Id. at 22. (emphasis added). One would also have no appreciation for the fact that the Board discussed at length various factors, including the reversal of roles between the D.C. resident circulators and the non-resident assistants, that facilitated the type of "circumvention of the District of Columbia laws," that was reflected in the testimony. Id. at 22-25. One would be equally unaware that "[t]he Board found that the problems with the process, particularly stemming out of the Red Roof Inn, were troubling and that they were pervasive," and that the Board ultimately concluded that "the signatures gathered by Stars and Stripes, including Ross Williams should be stricken in their entirety because of the types of problems" described in the opinion. Id. at 26, 27. It is unmistakably clear that any reasonable reading of the Board’s oral opinion is a far cry from that portrayed by the ACLU. But the ACLU’s game of "let’s pretend" does not stop there – it continues with its equally tortured description of the Board’s written opinion. See ACLU Br. at 6-8. In asserting that "if one were to eliminate the discussion of voter communications from the Board’s explanation for its disqualification of all Stars and Stripes signatures, there would be essentially nothing left to explain that drastic and outcome-determinative action,2 the ACLU has again donned its blinders. Accordingly, the ACLU simply ignored the Board’s identification in the "Introduction" to the opinion of the "flaws in the process, which bore on the validity of the signatures collected"; the subsequent discussion of all of those flaws; the Board’s repeated references to the irregularities and improprieties that "polluted" and "permeated" the Red Roof Inn operation; and the Board’s conclusion that the petition drive operation at the Red Roof Inn was "fraught with opportunities for abuse of the process, system and laws … [and] would encourage, on a systemic basis, the kinds of violations about which there was testimony." See BOEE Ex. 69 at 3, 18-48, 50-51. Also unnoticed by the ACLU was the fact that, in response to the allegations of a pervasive pattern of wrongdoing, the Board "considered the individual alleged violations as well as their collective impact based on the testimony of the various witnesses and the Board’s review of associated documentary and other evidence." Id. at 25. It goes without saying, of course, that the "collective impact" of the violations would have no meaning if, in fact, the basis for the Board’s conclusion rested on only one factor. Simply stated, the misrepresentation by circulators for Stars and Stripes was not the only reason, the primary reason, or the principal reason for the Board’s rejection of their signatures. Indeed, far from being the dispositive reason, the other violations can, and do, stand on their own, independently of the false statement issue, and provide more than ample support for the Board’s conclusion. That is because there were substantial irregularities and improprieties in the petition circulation process that gave rise to the Board’s conclusion that "serious violations of law that cast doubt on the validity of the signatures gathered permeated and polluted the petition drive operation conducted from the Red Roof Inn" (BOEE Ex. 69 at 51). One can only marvel at the lengths to which the ACLU has gone (and the Petitioner as well) to try to convert this case into a single issue, implicating constitutional considerations. Undoubtedly, this extraordinary effort stems from the substantial amount of other evidence that supports the Board’s conclusion to which the ACLU has no response, including: 1. Residents signing Affidavits for non-residents while "outside the presence"
2. Forgeries
3. Altered Circulator AffidavitsA total of fifty-four (54) petition sheets were challenged on the ground that they contained alterations in both names and/or addresses on the circulator’s affidavit. The Proponents conceded forty (40) petition sheets in this category at the commencement of the hearing. The challenge for a total of twelve (12) of the remaining fourteen (14) petition sheets were upheld. Of those fifty-two (52) petition sheets, thirty-four (34) were signed by circulators affiliated with Stars and Stripes, while the affiliation of the circulators for the remaining eighteen (18) petition sheets could not be determined from the records provided. 4. Multiple Names and/or Addresses on the Circulator’s Affidavit
5. Training of Circulator by Non-Resident Uninformed about D.C. Law or Proposed Initiative Measure
6. Conceded Sheets
7. The Proponents did not Rebut the Substantial Evidence of Improprieties in the Petition Process
In short, these facts of record amply support the reasonableness of the Board’s conclusion that there was a pollution of the petition drive operation conducted from the Red Roof Inn. (BOEE Ex. 69 at 51). Thus, the Board’s decision can be affirmed even independently of the false statement findings. II. THE BOARD’S FINDING THAT INITIATIVE MEASURE NO. 68 WAS MISREPRESENTED IS CONSISTENT WITH THE FIRST AMENDMENTThe ACLU states that the Board disqualified thousands of "otherwise valid" signatures of registered D.C. voters on initiative petitions on the ground that petition circulators made false and misleading statements about the initiative to prospective signers.8 As aforementioned, the Board did not disqualify any signature solely on the grounds of false and misleading statements. Moreover, 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. . ." Id. at 60. 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. Respondent submits that both criteria are supported by the facts of record under the circumstances here. The statements are demonstrably false as evidenced by the initiative law and the history of the proceedings in this matter in the context of the proper subject determination. (See BOEE Ex. at 4-6, 40-41; Resp. Br. at 36, 41). Specifically, the ACLU does not mention any facts prior to July 1, 2004, upon which the Board relied upon in arriving at its conclusion. (See ACLU Br. at 3). Further, there was at best a reckless disregard as to the truth of falsity of the statements.
Finally, contrary to the ACLU’s assertion, the Board does not care if a circulator suggested benefits that would materialize or not. Nor does the Board care whether or not a circulator states that an initiative will "benefit Ward 5," or is "great for the District’s economy." The only thing a circulator cannot do is state that there is a provision guaranteed in the proposed law when there clearly is not. Such a statement would be a misrepresentation of the initiative, and an initiative cannot be placed on the ballot unless there is appropriate support for the particular change in the law that the measure seeks to make. In conclusion, the Board’s decision reflects a reasonable response where there is no true indication whether signatories signed the petition in support of the actual measure in light of these false statements being made. III. THE BOARD CONSISTENTLY ENDEAVORED NOT TO UNNECESSARILY INFRINGE UPON THE FIRST AMENDMENT AND TO NARROWLY TAILOR ITS DECISION IN FAVOR OF THE FRANCHISEThe suggestion that the Board simply ignored the First Amendment rights of voters is belied by the record. To the contrary, the Board carefully protected the constitutional rights of voters while safeguarding the integrity of the electoral process. See generally Burson v. Freeman, 504 U.S. 191 (1992). Even beginning with its initial ruling on alleged defects in individual petition sheets, the Board gave deference to the franchise. Where a circulator’s name was challenged as illegible, the Board attempted to identify the circulator by checking the voter roll by the address on the petition sheet to determine if there was a registered voter at the address whose information matched that on the petition sheets. Where circulation dates were missing on the Circulator’s Affidavit of Certification, the Board considered whether there was any other indicia on the petition sheet which indicated when the petition was circulated.9 Where the circulator’s name was incomplete, or as in one case containing only a first name (Damon) , the Board found that the address and signature on the petition sheet in question matched those found on other petition sheets circulated by that individual (Mr. Catchings). Where the Challengers claimed that Initiative Measure No. 68 brochures that described the Capitol Horizon entertainment project and other benefits that the Proponents intended to offer constituted a misrepresentation of the initiative, the Board found that Proponents could talk about the ancillary benefits of the initiative and such was protected First Amendment speech. Throughout the proceedings, if there was any doubt, the Board leaned in favor of the franchise. For example, the Board took no independent action with respect to any circulator that it could not locate, could not subpoena, or who failed to appear after being properly served with a subpoena. The Board noted that the Proponents may have hired a significant number of transient and/or homeless individuals. The Board, however, has long recognized the right of homeless D.C. residents to participate in the electoral process. Even more telling of the Board’s concern for protecting "core political speech" was its finding that non-residents could participate in the signature gathering process in the District of Columbia. For the first time in the District of Columbia the Board has had the opportunity to interpret the Circulator’s requirements as it relates to the use of non-residents and has concluded that a non-resident can freely advocate along with District residents in support of an Initiative. Finally, when the Board was faced with challenges which requested that the entire Petition be thrown out for pervasive fraud and misrepresentations the Board attempted to determine who the wrongdoers exactly were. Accordingly when the Board determined that the primary wrongdoers were those working under the Stars and Stripes organization the Board only excluded petition sheets for those circulators that it could clearly identify with Stars and Stripes. This identification was accomplished by reviewing the entity to which petition sheets were turned in by circulators. Because much of the documentation in this regard identified only the non-resident assistants and not the D.C. resident circulator, many circulators could not be identified with either a non-resident assistant or with a petition drive company. Therefore out of the more than 300 resident circulators working on the petition drive the Board could identify only fifty-seven (57) circulators, as clearly identifiable with Stars and Stripes. The Board noted that there was over 100 identified circulators for whom the Board could not identify any affiliation, but once again the Board chose to include rather than exclude questionable petition sheets. CONCLUSIONFor the foregoing reasons and the reasons stated in the Board’s initial brief, this Court should affirm the Board’s August 3, 2004 decision with respect to the challenges to Initiative 68. Respectfully submitted Kenneth J. McGhie (Bar No. 385313)* 1. The ACLU is apparently also unfamiliar with the
Board’s process. It cites as
“curious” the fact that the Board’s
“official decision” does not contain the “crucial
conclusion” that the petition failed to contain the requisite number of
signatures to qualify for ballot access.
See ACLU Br. at 3, n.3.
The “crucial conclusion” was appropriately contained in the
Executive Director’s report to the Board, which included both the
results of the challenges to the Initiative that came before the 3-member
Board (D.C. CODE §§ 1-1001.16(o)(1), 1-1001.08(o)(2)) and the review of
the Petition conducted by the Board’s staff. (BOEE Ex. 68a at 4) The
Board properly adopted the Executive Director’s report and officially
certified the Petition as insufficient for ballot access at a public
meeting held on 2. ACLU Br. at 8. The ACLU’s grossly inaccurate rhetoric here, and in various other places throughout its brief, creates much heat, but sheds little light. See also, e.g., ACLU Brief at 18, n.20 (“the Board’s obvious distaste for paid professional petition circulators”). There is, of course, no basis whatsoever, for the ACLU’s assertion that the Board’s action was “outcome-determinative.” In striking contrast, what is outcome-determinative is the ACLU’s transparent attempt to cast the Board’s opinion as one-dimensional, when in fact the Board’s finding of irregularities and improprieties that permeated and polluted the petition drive process encompassed a much broader scope. 3. Thus, this Court should address the constitutional issue raised by the misrepresentation finding last—not first or exclusively—and should address it only if necessary. “If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality . . . unless such adjudication is unavoidable.” U.S. Department of Commerce v. U.S. House of Representatives, 525 U.S. 316, 343 (1999) (citations omitted). 4. The fact that three individuals were found by the Board to have essentially complied with the “in the presence” requirement does not of course affect the Board’s ultimate conclusion of a pollution of the process or a systemic violation. 5. Mike Jones was subpoenaed to testify before the Board; however, the Proponents represented that he was engaged in another petition circulation drive, and he submitted an affidavit. Unfortunately, no party was afforded the opportunity to cross-examine Mr. Jones and the Board accorded no weight to his self-serving affidavit in light of the conflicting testimony provided by witnesses during the hearing. 6. ACLU underestimates the impact of the Board’s findings regarding the environment in which violations occurred. See ACLU Br. at 6-7. The environment suggested the existence of systemic problems. (BOEE Ex. 69 at 50-51). 7. During the pre-hearing conference on July 20, 2004, the parties agreed to meet and mutually stipulate which petition sheets were to be withdrawn. (BOEE Ex. 4 at 17). These eighty-nine (89) sheets were conceded by the Petitioner as a result of the Challenge. 8. Of course, a random statistical sample pursuant to D.C. Code § 1-1001.16(o)(1), which is conducted only if there is a sufficient number of signatures to qualify for ballot access (17,599)—and that was not met here—is a prerequisite to determining the genuineness of signatures. 9. The ACLU appears to be suggesting that petition sheets that were conceded by the Petitioner should have been considered by the Board nonetheless. See ACLU Br. at 5 n.4. In addition to the fact that the Board was not always aware of why certain sheets were conceded, it would be strange indeed for the Board to consider sheets that were removed from consideration by the Petitioner, and never offered again for consideration. |
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