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DC Board of Elections and Ethics 
Reply brief to American Civil Liberties Union amicus brief on Initiative 68
September 3, 2004

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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,
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

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 Curiae

Kenneth J. McGhie (Bar No. 385313)*
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

*Counsel for Respondent D.C. Board of Elections and Ethics

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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

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TABLE OF CONTENTS

LIST OF PARTIES
TABLE OF CONTENTS
TABLE OF AUTHORITIES
ARGUMENT

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"
2. Forgeries
3. Altered Circulator Affidavits
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

II. THE BOARD’S FINDING THAT INITIATIVE MEASURE NO. 68 WAS MISREPRESENTED IS CONSISTENT WITH THE FIRST AMENDMENT
III. THE BOARD CONSISTENTLY ENDEAVORED NOT TO UNNECESSARILY INFRINGE UPON THE FIRST AMENDMENT AND TO NARROWLY TAILOR ITS DECISION IN FAVOR OF THE FRANCHISE

CONCLUSION

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TABLE OF AUTHORITIES

Case Law

Supreme Court Decisions

Brown v. Hartlage, 456 U.S. 45 (1982)
Burson v. Freeman, 504 U.S. 191 (1992)

Statutes

D.C. Code § 1-1001.08
D.C. Code § 1-1001.16

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.

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ARGUMENT

I. THE ACLU HAS CHOSEN TO IGNORE THE ALLEGATIONS, THE TESTIMONY AT THE HEARING, AND LARGE PORTIONS OF THE BOARD’S RULING

It 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:

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1. Residents signing Affidavits for non-residents while "outside the presence"

  • Six of the eight circulators from the Red Roof Inn 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. These individuals were Danielle Campbell, Tenisha Colbert, Melissa Darnell, Evelyn Gerst, Antoine Jeffries, and Andre Rempson. They all worked under the auspices of Stars and Stripes.4

    • Non-residents Curtis Fuentes, Ray Kingsford, Mike Jones and Darryl Bonner, who were implicated in the wrongful conduct were affiliated with Stars and Stripes.

  • There was evidence that the violations of law involving the "in the presence" requirement were not isolated occurrences.

    • 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). Mike Jones was a manager for Stars and Stripes.5

    • 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).

    • Two circulators from the Red Roof Inn who came before the Board, Tanica Hunter and Gwendolyn D. Squirewell, exercised their Fifth Amendment right against self-incrimination in connection with any testimony regarding the affidavits that they signed concerning the circulation process.

    • Three other circulators were implicated in wrongful conduct (Shemika Mack, Antoinette Pitter, and Angelo Farrell).

    • "In Mike[ Jones'] room, it was always a lot of people, a lot of commotion in his room. Some people would come in and say they didn't enough signatures or some people didn't have a witness, most of the out of towners. They would say they didn't have enough signatures or they didn't have a witness and they would come and ask Mike do you know a D. C. resident that can sign off my papers, because I didn't have a witness today. And he would find somebody, find a D. C. resident and get them to sign off on their papers." (BOEE Ex. 6h at 31). "So, the D. C. residents were signing on the out of towners and they was getting other people to sign theirs. So, I figured it was okay, since everybody else was doing it." (Id. at 29).

    • Some days like at the end of the day, like at the Red Roof Inn, people didn't have witnesses. The out-of-towners, they will go out all day and get signatures; but they didn't have nobody to sign it. And so I made a couple of extra dollars by just them, signing their papers. (BOEE Ex. 6f at 304).

    • Clint Hyatt prepared a memorandum for distribution that was addressed to all circulators to reinforce the fact that circulators must be D.C. residents. Notwithstanding the evidence of non-residents circulating the petition, the memo’s distribution remains somewhat of a mystery. Mr. Hyatt testified that he had no idea who copied or distributed the memo. (July 23 Tr. at 428-29). He stated that he learned that it had been distributed from Mr. Towe. (Id. at 429). However, Mr. Towe testified that he did not know whether the memo was distributed. (July 26 Tr. at 154). (BOEE Ex. 69 at 47).

  • The environment provided fertile ground for abuses of the process and other wrongdoing to occur. It was an environment that "would encourage on a systematic basis, the kinds of violations about which there was testimony." (BOEE Ex. 69 at 50-51).6

    • Mr. Towe viewed the circulator’s affidavit as a "legal technicality" on the bottom of a declaration. (July 26 Tr. at 73-74). This is particularly troubling not only because Mr. Towe was the principal of Stars and Stripes, but also because he testified that he apprised his managers of the laws of the District of Columbia. (BOEE Ex. 69 at 45).

    • Mr. Towe also testified that he was too busy to do a variety of things, including participating in circulator training, going into the field, and monitoring circulator activities in the field. (July 26 Tr. at 63, 91) Meanwhile, the managers acknowledged that they also did not go into the field. (July 27 Tr. at 263, 299). Thus, there appeared to be major gaps in knowledge among those in charge of the operation as to important details of the operation. (BOEE Ex. 69 at 48)

    • The recruitment practice encouraged non-resident assistants to engage in the seemingly unsupervised recruitment of individuals from off the streets. The lack of supervision of the process provided fertile ground for the irregularities identified in the recruitment of Evelyn Gerst, Angelo Farrell and Forrest Jackson. (BOEE Ex. 69 at 46).

      • Contributed to the problem which the Board faced in trying to locate circulators for purposes of serving subpoenas.
    • Although Mr. Michael was not affiliated with Stars and Stripes per se, he candidly acknowledged that, 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). This practice facilitated the irregularities in the signing of petition sheets by Evelyn Gerst, Angelo Farrell Danielle Campbell, as well as forgeries experienced by Stephen Atkins and Forrest Jackson.

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2. 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 (40) petition sheets and Mr. Stephen Atkins testified that his signature was forged on eighteen (18) petition sheets. (BOEE Ex. 6c at 129-38; id. at 115-16); (BOEE Ex. 69 at 34-35).

    • The Petition Sheets under this category were submitted under the auspices of Stars and Stripes.

  • Robert Price testified that his signature was forged on a petition sheet for Initiative Measure No. 68. According to Mr. Price, he was first alerted to the fact that his name was on a petition sheet by a news reporter. (July 23 Tr. at 201). Mr. Price testified that he was approached by circulators at the Giant supermarket on the corner of Seventh and O Street, where he told them that he was against the measure. (Id. at 202). Mr. Price was able to confirm that his signature was forged upon reviewing the petition sheet with his purported signature appended. (Id. at 202). (BOEE Ex. 69 at 35).

  • 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 by Mike Jones and complied with the instruction – that at least some of this conduct occurred. (BOEE Ex. 69 at 35-36.)

    • Andre Rempson was a circulator for Stars and Stripes

  • Testimony of Tenisha Colbert examination by Challenger Brizill: "Q How do you account for the fact that they look alike? A I don't know how to -- somebody else must have signed someone else's name. That's all I can account for that, because when I passed it out, they said -- I had three or four boards in my hand. I would talk to a person, give that person the board, tell them, you know, "Are you a registered voter," tell them what it's for, and let them sign it. If I see someone else walking past while they're signing, I'd go to someone else. Q So you may not --A So if they signed someone else's name, if they signed someone else's name, I didn't see that." (BOEE Ex. 6b at 290-91); "Q Is there a great similarity in the handwriting for those individuals? A Yes. They do look alike.Q Can we look at signature 13 and 14 on the page? A And they all have the same address. So maybe someone signed for someone in their house. They all do have the same address. It's just different names. Q No. They do not all have the same address. The one on number seven is not the same address. A Okay. I didn't see that.

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3. Altered Circulator Affidavits

A 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.

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4. Multiple Names and/or Addresses on the Circulator’s Affidavit

  • Twelve (12) Petition sheets were challenged on the ground that multiple names and/or addresses were on the circulator’s affidavit. The Board upheld the challenge with respect to five (5) of the twelve (12) challenged sheets. The presence of the two names and/or signatures on the petition sheet at issue created doubt as to the actual circulator and cast a shadow on the validity of the circulator affidavits at issue. Four (4) of the Five (5) petition sheets were purportedly circulated by an individual working with Stars and Stripes, while the affiliation of the circulator for the remaining sheet could not be determined.

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5. Training of Circulator by Non-Resident Uninformed about D.C. Law or Proposed Initiative Measure

  • 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 Ex. 6g at 167).

    • Mr. Williams did not review the District’s election laws, the Board’s rules and regulations on initiative circulation, or any cases involving initiative circulation. (BOEE Ex. 6g at 18).

    • Mr. Williams further testified that he never reviewed the Initiative Measure Prior to explaining to circulators what the proposed measure was about. (BOEE Ex. 6g at 23).

  • Martha Ward testified: "We were instructed not to talk about the gambling initiative, but to talk about other things, like it's about the children, it's about health care, it's about better money for the prescriptions, but not to get into any discussion about the gambling initiative." (BOEE Ex. 6b at 42).

  • Tenisha Colbert testified that no one explained the significance of the circulator affidavit: "Prior to signing the first -- the first time you signed this affidavit, did anyone explain to you the purpose of the affidavit?" A. No. He told me I had to sign, because I was the one that went out and did it." (BOEE Ex. 6b at 274).

  • Martha Ward testified that Ross Williams never explained the significance of the circulator affidavit during the training sessions: (Id. at 114).

  • Testimony of Andre Rempson: "Q Did he do any training with you; that is to say, give you any instructions other than --A Well, the first couple hours, I'd just stood and watched. Q You stood and watched what? A How they did the petitions, how do we go about getting petitions done. Q You watched other people [g]ather petitions? A Yes. Q Who did you watch? A Tenisha. Q Did he give you any other training other than that? A No." (BOEE Ex. 6b. at 332).

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6. Conceded Sheets

  • Petitioner conceded eighty-nine (89) petition sheets at the beginning of the hearing, forty (40) of which were discussed under category 3 above.7 Toward the end of the proceedings, Petitioner 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.

    • All of these sheets were from circulators affiliated with Stars and Stripes or affiliation could not be determined from the documentation provided

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7. The Proponents did not Rebut the Substantial Evidence of Improprieties in the Petition Process

  • There was considerable evidence presented of improprieties at the Red Roof Inn to which the Proponents provided no credible response.

  • Although the Proponents called a total of five witnesses who were circulators, all of them – without exception – were associated with the 1501 M Street portion of the petition drive operation. All of them – without exception – testified that they had no contact with, or knowledge of, the activities associated with the Red Roof Inn. (BOEE Ex. 69 at 48-49)

  • During the Pre-hearing conference, the Proponents were informed by the Board’s General Counsel of their ability to provide evidence that would rebut the evidence presented by the Challengers pursuant to D.C. Code §§ 1-1001.16(o)(1), 1-1001.08(o)(2). (BOEE Ex. 4 at 40, 44, 86).

  • The Proponents did not request that the Board issue any subpoenas for individuals associated with the Red Roof Inn operation, or for signatories from associated petition sheets.

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.

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II. THE BOARD’S FINDING THAT INITIATIVE MEASURE NO. 68 WAS MISREPRESENTED IS CONSISTENT WITH THE FIRST AMENDMENT

The 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.

  • Mr. Williams did not review the District’s election laws, the Board’s rules and regulations on initiative circulation, or any cases involving initiative circulation. (BOEE Ex. 6g at 18).

  • Mr. Williams further testified that he never reviewed the Initiative Measure Prior to explaining to circulators what the proposed measure was about:

Q Okay. You told them to explain the petition. Did you give them a copy of the initiative law?

A The initiative law?

Q Yes.

A No. At that time, we didn't have the initiative when I first started the training. We didn't have the petition at that particular time. It wasn't produced to us. It was held up in court.

Q But the initiative law was available, so did you have a copy of the initiative law?

A No. No, I did not. (BOEE Ex. 6g at 23).

All I said that it would help with health care. That was my understanding that health care would be part of the package. Without reading the whole thing, I didn't have a full explanation. (BOEE Ex. 6g at 28).

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.

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III. THE BOARD CONSISTENTLY ENDEAVORED NOT TO UNNECESSARILY INFRINGE UPON THE FIRST AMENDMENT AND TO NARROWLY TAILOR ITS DECISION IN FAVOR OF THE FRANCHISE

The 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.

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CONCLUSION

For 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)*
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

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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 August 5, 2004. (BOEE Ex. 68b)

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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