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Government and People
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE,
On Petition for Review of the District of Columbia Board of Elections and Ethics
Brief for Intervenors DCWatch and DC Against Slots
Dean J. Snyder
1. Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, represented by:
George W. Jones, Jr.
Erik S. Jaffe
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)
TABLE OF CONTENTS
Argo, et al. v. D.C. Board of Elections and Ethics, Order of Judge
James Boasberg, June 29, 2004.
D.C. Code § 1-1001.02(16)(A)
3 DCMR Chapter 10
Treatises and Publications
T.J. Halstead, "State Regulation of the Initiative Process:
Background and Analysis of Issues in Buckley v. American Constitutional
Law Foundation, Inc., et al." CRS Report for Congress, February
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE,
On Petition for Review of the District of Columbia Board of Elections and Ethics
Brief for Intervenors DCWatch and DC Against Slots
1. Whether the District of Columbia Board of Elections and Ethics erred when it certified that Initiative 68 lacked 17,599 valid petition signatures and, as a result, that the initiative could not be placed on the November 2004 general election ballot in the District of Columbia.
On July 6, 2004, the Citizens Committee for the Video Lottery Terminal initiative filed with the DC Board of Elections and Ethics 3,869 petition pages containing 56,044 signatures in support of Initiative 68, the Video Lottery Terminal Initiative of 2004 (Exhibit 1). Although District law gives proponents 180 days to circulate an initiative petition, the Citizens Committee gathered all of its signatures within a five-day period, from 4:00 p.m. on July 1, 2004, when the BOEE issued the petition forms, to 5:00 p.m. on July 6, 2004, when the Committee submitted its petition.
On July 19, 2004, DC Watch and DC Against Slots challenged this petition under DC Code §1-1001-16(o)(1) and several sections of 3 DCMR Chapter 10 (Exhibit 3). This challenge, also known as the Brizill/James challenge, was based on a pervasive pattern and practice of fraud, forgery, and falsification of the petitions that permeated the entire petition circulation process. The challenge alleged that the great majority of the signatures appeared on petitions with false affidavits. Specifically, the challenge alleged that: 1) some of the circulator’s affidavits, supposedly "signed" by one person, were in several different handwritings and were therefore fraudulent; 2) some of the circulators admitted in interviews to signing affidavits on petition sheets that they did not in fact circulate, and that were circulated outside their presence by nonresident professional circulators; 3) some circulators’ affidavits were signed with nonexistent addresses, nonresidential addresses, or addresses that were not valid residences of the circulator; 4) some of the affidavits were signed by mentally incompetent persons who could not have circulated their petitions themselves; 5) some circulators submitted such a great quantity of signatures that it would have been physically impossible to have collected them within the time frame claimed on the affidavit; 6) some affidavit signatures were redacted and substituted with the signature of another; 7) some affidavits were attributed to an individual who stated his identity was stolen and that he circulated no petitions and signed no affidavits; and 8) some circulators’ petitions contained forgeries that were so pervasive that they rendered their affidavits valueless. Moreover, the challenge indicated that some circulators stated in interviews that they had witnessed "signing parties" at which nonresident professional petition circulators and others forged signatures on petitions with names taken from the telephone book. The challenge also alleged that circulators were disguising and misrepresenting the very nature of the initiative by presenting it to registered voters, through the use of T-shirts, brochures, and their oral presentations.
(Exhibit 3 at 6)
Another challenge, brought by Ronald Drake (Exhibit 2), alleged certain specific defects on many of the petition sheets submitted to the Board. It alleged that all of the petition sheets could be invalidated on the basis that each suffered from at least one of eleven specified circulator affidavit defects.
In response to the challenges, the Board held nine days of intensive hearings, from July 21 through July 28 and on August 2, totaling over 88 hours — by far the lengthiest and most detailed evidentially hearing it had ever held on any issue (Exhibits 6a-6i). It issued subpoenas and requests for appearances for 130 individuals: "This number included the three officers of the Citizens Committee for the Video Lottery Terminal Initiative, 102 circulators, eleven signatories, eight representatives of Progressive Campaigns, Inc. (PCI) and its subcontracting affiliates, three individuals identified as supporters of Initiative Measure No. 68, two managers at the hotels where nonresident circulators stayed while in D.C., and one purported signatory. The Board ultimately heard testimony from 38 witnesses. . . ." (Exhibit 69, Board Order at 8-9.) Because the two challenges focused on problems with the circulation of the petition, the Board issued subpoenas for 103 circulators. However, only fifteen circulators appeared pursuant to subpoena (August 2 Tr. at 110); of those, eight circulators who initially asserted their Fifth Amendment right not to incriminate themselves ultimately testified under a grant of use immunity (Exhibit 69, Board order at 28). The Board was unable to serve fifty-three subpoenas (Exhibit 43) because of problem addresses — some building addresses did not exist or were not residential, some were vacant, some buildings were not accessible, and at some addresses the residents denied that the subpoenaed individuals actually lived there (August 2 Tr. at 110, 115). Thirty-five circulators who were served subpoenas did not respond or appear at the hearing (August 2 Tr. at 110).
The Board acted under two statutory deadlines. The statutory deadline for the Board to resolve all challenges was August 3, 2004, pursuant to 3 DCMR 1011.3, "The Board shall receive evidence in support of and in opposition to the challenge and determine the validity of the challenged petition not more than fifteen (15) days after the challenge has been filed." The Board issued its oral ruling with respect to the challenges on the day of that deadline, August 3, 2004 (Exhibit 67); its written order was subsequently issued on August 13, 2004 (Exhibit 69). That order found:
(Exhibit 69, Board Order at 2-3)
The statutory deadline for the Board to complete its verification process and certify whether the petition would be accepted for the November ballot was set by DC Code 1-1001.16(o)(1): "After acceptance of an initiative or referendum petition, the Board shall certify, within 30 calendar days after such petition has been accepted, whether or not the qualifying percentage and ward distribution requirements established in subsection (i) of this section, and whether or not the necessary number of names and signatures of registered qualified electors of the District of Columbia, properly distributed by wards, appear on the initiative or referendum petition." That deadline was August 5, 2004, and on that day the Board adopted the memorandum report of its executive director, Alice Miller, which "determined that this initiative petition does not meet the statutory requirements for certification to the ballot. . . ." (Exhibit 68, August 5 Memo, at 1.)
To be certified for the ballot, the petition had to contain 17,599 signatures of apparent registered voters. Although slots proponents submitted 56,044 signatures on petition sheets, only 21,664 of those signatures survived the standard petition verification process of matching the signatures to the names and addresses of registered voters, as performed by the Board of Elections and Ethics. After removing signatures that were on sheets that were conceded or withdrawn by the attorney for the proponents and signatures that were on sheets that were challenged on technical grounds by Mr. Drake, only 21,279 signatures remained. On the basis of the joint challenge filed by DCWatch and DC Against Slots, the Board further found that it could have no confidence in the affidavits on petition sheets that could be confirmed as having been collected by the signature gathering operation at the Red Roof Inn run by Stars and Stripes, the petition circulation company that was the lead subcontractor to Progressive Campaigns, Inc. It rejected those petition sheets, and the remaining number of signatures of apparent verified registered voters was 14,687, which was not sufficient for the petition to be certified for the ballot (Exhibit 68, August 5, Memo, at 2-5).
Appellants filed a timely challenge to this court asking for review of the Board of Elections and Ethics’ determination. The matter is docketed for oral argument on September 8, 2004.
The DC Board of Elections and Ethics summarized the background history of this initiative in its August 13, 2004, Order at pages 4-8 (Exhibit 69).
On July 1, 2004, the Board of Elections and Ethics issued petition forms for Initiative 68, the Video Lottery Terminal Initiative of 2004, to the Citizens Committee (Exhibit 41). The Committee had 180 days to gather the signatures of 17,599 registered voters, but gathered their signatures in five days and submitted the petition to the Board of Elections and Ethics on July 6, 2004 (Exhibit 1).
Evidence in the record and testimony indicated that there were two distinct signature gathering operations. One was run out of the Manatt, Phelps & Phillips law firm, where the counsel for the Citizens Committee, John Ray, is the managing partner. It had a separate management and payment schedule, and those whom it hired as paid petition circulators were all local DC residents, many of whom were very experienced in DC politics and familiar with and experienced in circulating petitions. This operation eventually employed 151 circulators.
However, in order to secure sufficient signatures within the tight time schedule that it had chosen for itself, the Citizens Committee hired Progressive Campaigns, Inc. (PCI), a California-based professional petition management firm (Exhibit 37). In turn, PCI subcontracted with three other petition management firms: Stars and Stripes, Initiatives Plus, and John Burkett Petition Management. Since each of these subcontractors seemed to consist of only one employee/principal, each company then hired nonresident independent contractors to act as managers and as petition circulators. These third-level independent contractors then recruited local DC residents, who were hired as fourth-level independent contractors to them. At each level, in order to protect their status as independent contractors, those who did the hiring claimed that they exercised no supervisory function over those who worked for them. None of these firms, principals, subcontractors, managers, or independent contractors is based locally in the District of Columbia, although both PCI and Stars and Stripes claimed to have done petition circulation in the District before. This operation, completely separate from that run out of Manatt Phelps, eventually employed 181 DC residents. Stars and Stripes employed, by various estimates given during the hearing, between eighty and one hundred nonresidents, and it was never made clear how many nonresident managers and circulators were hired by Initiatives Plus and John Burkett Petition Management.
Most of the day-to-day operation of the multiple petition companies was run by, and the great majority of the petitions were circulated by individuals affiliated with Stars and Stripes, based in the Red Roof Inn in Chinatown. Initiatives Plus and John Burkett Petition Management were based at the Days Inn on New York Avenue. However, since individual managers and petition circulators contract with different companies on various campaigns, and since the bookkeeping of this operation was not entirely clear or disclosed to the Board of Elections, this complex network was not fully illuminated during the hearings, and it is not completely clear which company employed which managers and circulators. (It is for this reason that the Board of Elections and Ethics disqualified only the petition sheets of those circulators whom it could be clearly and convincingly determine worked for Stars and Stripes on the basis of the company’s own paperwork.)
All of the principles, subcontractors, and independent manager contractors left the District of Columbia shortly before or within days after the Initiative 68 petitions were submitted on July 6, 2004. As a result, only a few of the highest ranking owners and managers were available to testify before the Board of Elections and Ethics. The lower level independent contractors, who had information most probative in this case, were long gone and well beyond the jurisdiction of both the Board of Elections and the Superior Court. See, Signature Collecting in the Initiative Process: How Democratic is It?, 64 Montana Law Review 35 (Winter 2003), in Intervenor’s Appendix. For example, one independent contractor whose testimony was critical and particularly requested by the Board because he had been named by several witnesses as having been involved in wrongdoing, Mike Jones, was not made available for testimony by the Citizens Committee because he was too busy collecting petition signatures in Ohio.
When the professional managers of these petition circulation companies testified before the Board, without exception, they praised their own work and companies, and spoke of their many years of experience and of the many safeguards they use in their work to prevent signature fraud and other irregularities. They could not explain, however, why the Citizens Committee needed to concede the validity of so many petition sheets (89 sheets were conceded on July 21, 2004 [Exhibit 8]; 378 on July 29, 2004 [Exhibit 42]) when these safeguards were supposedly in place. Moreover, none of those who testified said that they spent any time monitoring, observing, or supervising the training of petition circulators or the actual circulation of petitions on the street or monitoring activities in the rooms of the Red Roof Inn, where the improprieties occurred.
The proponents, in their brief, revisit the factual findings made by the Board of Elections and Ethics about the degree of responsible supervision of petition circulators by the Citizens Committee for Video Lottery Terminals, by Progressive Campaigns, Inc., and by Stars and Stripes, Inc. They do so based on a credulous recitation of the self-interested testimony given by Pedro Alfonso of the Citizens Committee; Carl Towe of Stars and Stripes; Ross Williams, an independent contractor hired by Stars and Stripes for this campaign; and Angelo Paparella and Robert Grocholski of Progressive Campaigns, Inc.
The Board, as the trier of fact of this case, solicited and heard the testimony of these witnesses. Each of these witnesses testified for between three and four hours each. The Board gave each of them an ample opportunity to defend the performance of their respective organizations and to detail any steps that they may have taken to detect and prevent fraud and abuse of the petition circulation and signature gathering process. And in the end, the Board gave their testimony the credibility that it believed it deserved.
The sum total of the testimony of all these witnesses was that they did little or nothing to supervise properly and oversee the petition circulation process or the training of circulators, even though they were aware of complaints from the public and reports in the press of widespread problems. Mr. Alfonso, chairman of the Citizens Committee, testified that he relied upon the observations of Vicky Wilcher, the treasurer of the committee (July 28 Tr. at 213), and on Rob Newell, the funder and beneficiary of the initiative. Mr. Newell never testified, although the challengers requested that he be subpoenaed; Ms. Wilcher testified that she spent a total of one hour on one occasion driving about the city and observing petition circulators, during the entire five-day period (July 27 Tr. at 526-527).
Mr. Paparella, the president of Progressive Campaigns, Inc., testified that he was never in the District of Columbia during the petition collection process and that he relied on his assistant, Mr. Grocholski, to supervise the local situation (July 28 Tr. at 313-314). In turn, Mr. Grocholski stated that he placed full confidence in Mr. Towe, the president of Stars and Stripes, but he did not testify that he himself took any steps to observe, manage, or supervise any of the contractors and circulators who worked for Stars and Stripes (July 27 Tr. 428ff.). Mr. Towe testified that he was in only one training session given to circulators for perhaps a total of ten minutes because he was "too busy doing other things" (July 26 Tr. at 30). He said that he never went into the field to observe, manage, or supervise petition circulators ("I didn’t have time to go out into the field," [July 26 Tr. at 63]) and that his managers didn’t either ("I think at some times they were, but to the best — I don’t know how much they was out there," [July 26 Tr. at 63]).
In his closing statement, John Ray, attorney for the proponents, stated that, all told, the Proponents "hired" or paid 332 D.C. resident circulators (Exhibit 69, August 13 Order at 52). As stated by the Board, it was virtually impossible from the records provided by the Proponents to determine which paid circulators were recruited and supervised by which company, if they were supervised at all.
What is abundantly clear and credible was the testimonial evidence by DC citizens who were employed by the Stars and Stripes operation at the Red Roof Inn. This testimony overwhelmingly detailed how the most important legal requirements for valid petitions — swearing that the signatures were made in the presence of the affiants, and swearing that the signatures were the true signatures of those whom they purported to be — were routinely flouted or ignored at the instruction of and/or with the knowledge of the nonresident "professionals" and "managers." And they demonstrated that affidavits were routinely and as a matter of common practice signed by individuals who did not circulate those petition sheets.
Eight different witnesses who circulated petitions for Stars and Stripes — Danielle Campbell, Tenisha Colbert, Melissa Darnell, Evelyn Gerst, Bobbie Diggs, Margot Inabinet, Antoine Jeffries, and Andre Rempson — originally invoked their Fifth Amendment rights against self incrimination but were later heard by the Board under a federal and state immunity agreement. Seven of these individuals testified that they signed petition sheets that were actually circulated by others, whom they did not even observe or witness circulating those sheets; and six of them testified that that they did so at the instruction of and with the knowledge of independent contractors employed by Stars and Stripes.
Danielle Campbell testified that she was instructed by her manager (a contract employee of Stars and Stripes) that as a "witness" she only had to go to the Red Roof Inn at the end of the day to sign affidavits on petitions that were circulated by out-of-town circulators who were contractors of Stars and Stripes (July 26 Tr. at 27-28). She also testified about a "signing party" at which petitions were forged in Room 316 or 318 of the Red Roof Inn, a room occupied by Stars and Stripes contractors (July 26 Tr. at 304-307).
Tenisha Colbert testified that she signed affidavits for petitions she had not circulated at the Red Roof Inn, in the presence of an out-of-town Stars and Stripes manager. She further stated that this out-of-town manager actively and routinely matched out-of-town circulators, who needed their petition affidavits signed by residents, with other DC residents, willing to sign affidavits (July 28 Tr. at 28-32).
Melissa Darnell testified that she, Antoinette Pitter, and her brother were instructed by out-of-town circulators to sign affidavits on petitions that were circulated out of her presence, and that she did not witness (July 26 Tr. at 372-373).
Evelyn Gerst testified that she herself circulated no petitions, but that Darryl Bonner, an independent contractor for Stars and Stripes, had her sign affidavits both on blank petition sheets and on petitions that he and two other out-of-town independent contractors for Stars and Stripes had actually circulated (July 26 Tr. at 208-14).
Bobbie Diggs testified that he signed affidavits on petition sheets circulated by himself and two out-of-town circulators with whom he worked, and that he could sometimes witness the actions and conversations of the two other circulators and sometimes not witness them (July 26 Tr. at 478-479, 491).
Antoine Jeffries testified that, at the request of one Stars and Stripes manager, he signed affidavit sheets actually circulated by two other, different Stars and Stripes managers (July 28 Tr. at 59-61).
Andre Rempson testified that he too was asked by a Stars and Stripes manager to sign affidavits on petitions that were circulated by other nonresident Stars and Stripes managers (July 26 Tr. at 405-408). He further testified that a Stars and Stripes manager asked him to copy names from a telephone book onto petition sheets, and that he actually did copy two names but stopped because he felt bad about it (July 26 Tr. at 419-420).
In addition, two DC citizens testified about the forgery of their signatures on affidavits that could only have been done by independent contract employees of Stars and Stripes. Forrest Jackson testified that he signed a petition sheet as a registered voter, that he was asked by the two circulators who secured his signature to show them his identification, that he was then distracted and the circulators disappeared with his identification cards, which were returned to the grocery store where he worked the next day — and that he did not learn until he was contacted by a member of the press that his name was on forty-two petition sheets as the circulator (July 23 Tr. at 129-132). Stephen Atkins testified that he turned in two petition sheets that he had circulated to an out-of-town manager at the Red Roof Inn, but that he had never seen and never signed the other nineteen petition sheets that bore his name as circulator (July 23 Tr. at 116-120).
In addition, two other circulators who worked by Stars and Stripes, Tanica Hunter and Gwendolyn D. Squirewell, exercised their Fifth Amendment right against self-incrimination and were not recalled by the Board. The conclusion that the Board drew with regard to Hunter and Squirewell can well be generalized with regard to the entire universe of Stars and Stripes circulators who testified, who could not be located, and who failed to respond when subpoenaed:
(Exhibit 69, August 13 Order at 33-34)
The evidence about the Stars and Stripes operation given in the testimony of the eight DC resident circulators given immunity and by testimony of the two residents who testified as to the forgery of their signatures is supported by press accounts of interviews with other circulators that worked for Stars and Stripes and who did not respond to subpoenas (see, among other articles in the record of the hearing and the DCWatch/DC Against Slots challenge, BOEE Exhibit 3, Serge F. Kovaleski and Lori Montgomery, "Widespread irregularities Seen in D.C. Slots Petitions," The Washington Post, July 18, 2004, A01). It is also supported by the fact that, on their face, the affidavits of several other circulators who did not respond to subpoenas were written in varying handwritings. Their testimony about the nature of the Stars and Stripes operation is supported by the fact that the Board was unable to locate and serve subpoenas on the majority of purported DC resident circulators supposedly hired by Stars and Stripes, and that the great majority of those circulators who were subpoenaed failed to respond to those subpoenas.
In addition, the testimony about the petition circulation operation run by Stars and Stripes was uncontradicted and unrebutted by any evidence presented by the Citizens Committee.
(Exhibit 69, August 13 Order at 48-49)
At issue in this matter is a DC Board of Elections and Ethics review of a citizen-filed challenge to a well funded, well staffed ballot initiative campaign, seeking to place a gambling proposal on the District of Columbia’s November 2004 general election ballot. While important First Amendment speech issues are always present in ballot access contests, they are not always in dispute. In the instant matter, the lofty questions of free speech and enfranchisement are being used as a subterfuge to avoid and obfuscate the more mundane question critical to this case — whether signatures collected to qualify the ballot initiative were obtained by fundamentally fair, honest, and reliable means. Intervenors assert that the overwhelming record of evidence, now before this court, shows that the signature collection process, the threshold requirement for proponent’s ballot access in November, was so fatally flawed that the Board of Elections and Ethics was required to reject the initiative as a matter of law.
The applicable law under which the Board heard the challenge is D.C. Code §1-1001.16(h), which specifies that:
The Code’s definition of residence for these purposes is given in §1-1001.02(16)(A):
DC Municipal Regulations, Title 3, §1009.9, states that with respect to an initiative,
In 2002, the District of Columbia Board of Elections and Ethics, in its Memorandum Opinion and Order in case No. 02-016, Brizill v. Williams (Appendix), titled one section of its order: "The circulator’s signature on an affidavit is the most significant aspect of a nominating petition because it helps ensure integrity in the nominating process." It further wrote:
(BOEE Memorandum Opinion and Order, Administrative Hearing No. 02-016, July 29, 2002, at 7)
In the Williams case, the Board found that because it could not rely on the affidavits of certain circulators, and because there was such "widespread obstruction and pollution of the nominating process as it pertained to the nominating petition sheets circulated by [those questionable circulators]," that the petitions that may or may not have been circulated by them, but which were signed by them, could not be counted.
In its memorandum and order, the Board made reference to numerous case decisions:
(BOEE Memorandum Opinion and Order, Administrative Hearing No. 02-016, July 29, 2002, at 7-8)
In upholding the Board’s finding in the case of Williams v. DC Board of Elections and Ethics, 02-AA-854, this Court went even further than the Board. It found:
(Williams v. BOEE, 804 A.2d 316 [D.C. 2002] 5-7)
The same rule applies to petitions for initiatives and referenda as for candidates. The process employed by the DC Board of Elections to review initiative and referendum petitions requires the DC registrar of voters to examine only the individual names and addresses on petition sheets to determine whether they match names and addresses on the voter rolls. However, it is the prerogative, role, duty, and obligation of the Board of Elections itself to examine the circulators and the process employed to circulate the petitions, when that process and those circulators are challenged. With the evidence available to it, the Board had to make the determination that the practices of the petition circulation companies in this case — the widespread use of circulators who were unqualified because they were not residents of the District of Columbia, the deliberate misattribution of those unqualified circulators’ petitions to DC residents, the forgery of circulators’ signatures, and the use of circulators with false addresses, in addition to the old-fashioned forgery of petition signers’ signatures — required the Board to disqualify these petitions in order to fulfill its primary duty, to protect the integrity of the election process.
The Supreme Court of Arizona held in Brousseau v. Fitzgerald,
(Brousseau v. Fitzgerald, 675 P.2d 713 (Ariz. 1984), at 9-10)
In this case, even though the petition circulation companies’ review of the petitions revealed that at least half of the signatures that they submitted to the Board of Elections and Ethics were invalid (July 28 Tr. at 316-317), they made no effort to strike those signatures that they themselves had determined not to be valid — they submitted all signatures to the Board, including those they knew not to be valid. The professional signature gathering companies did not believe that their work should be "designed to reduce the number of erroneous signatures," or "guard against misrepresentations," any more than they believed that they had a duty to "confirm that signatures were obtained according to law." They were hired, and they performed their work, simply to maximize the number of signatures that would be submitted to the Board of Elections, whether or not those signatures were erroneous and whether or not they were obtained according to law. They were paid by the signature, and it was against their interest to reduce the number of erroneous signatures and guard against misrepresentations, just as it was against their interest to supervise the conduct of their "independent contractors."
As recently as June of this year, this very court acknowledged the necessity and propriety of the District’s election procedures, which in certain circumstances have denied ballot access. In Best v. District of Columbia Board of Elections, 852 A.2d 915, 2004 D.C. App. LEXIS 297, this court stated that "…we appreciate the importance of reasonable regulatory provisions that are aimed, for example, at ensuring candidate eligibility, preventing voter confusion and electoral fraud, and the like…. Nothing in our opinion today is intended to call such provisions into question."
The Petitioners misconstrue the Board’s order, and appear to believe, incorrectly, that the Board primarily based its order on the numerous flagrant misrepresentations made by the proponents of the initiative, and rejected the petition sheets collected by Stars and Stripes predominantly because of, the false statements that the proponents of the initiative made to registered voters in order to persuade them to sign the petition.
This court should not be mislead by the Petitioner’s attempt to blame the rejection of signatures on a "core political speech argument," particularly their discussion of what may or may not have been said in support of the Initiative in training, on T-shirts, or in campaign material. Assuming, arguendo, that the Committee and its trainers, made no impermissible statements, the Board of Elections would still have had to reject the petitions at issue because of false affidavits, because they are filled with forgeries, and are otherwise unreliable.
However, a closer review of the Board’s order shows that the limitations placed on the Committees’ "core free speech" were judicious and narrowly applied. The Board used its findings of false statements as one of several reasons for faulting the signature gathering operation led by Stars and Stripes. They used the misstatements and T-shirt problem as evidence of laxity and mismanagement that indicated to the Board a larger problem.
Most troubling to the Board were the yellow T-shirts (Exhibit 32) that found their way onto the streets in the early days of the petition drive. The shirts contained the language, "Sign Up! For Jobs, Education and Healthcare." "Jobs, Education and Healthcare" is the exact language that the Superior Court disallowed with regard to the title and summary statement of the initiative on the petition. Judge Boasberg ruled that it was misleading to "sell this initiative" on those grounds since any benefits of "jobs, education and healthcare" were purely speculative, since the city council may or may not use profits for these purposes (Exhibits 56 and 57).
The Citizens Committee accepted this limitation and never appealed that aspect of Judge Boasberg’s opinion. For that reason, the Board was entitled to believe that this issue had been finally adjudicated and could reasonably expect that the disputed language would not be used in the T-shirts, campaign material, or as part of the sales pitch to gather signatures on the petition.
DC law and the Board’s application of it was in accord with the Supreme Court’s substantial protection of core political speech. The Board rightfully required circulators to personally witness signatures that they attested to in their affidavits. Throughout the hearing process, the questioning of circulators focused on two central questions — did they personally watch individuals sign the petitions and did the actual person make the signature.
Nevertheless, the First Amendment argument made by the Citizens Committee is worth addressing, since the Board of Elections and Ethics does deal with it as a minor, subsidiary point in its order and in its reasoning with regard to flaws in the circulation process. The Citizens Committee’s brief contends, as the proponents of the initiative at times contended during the Board of Elections hearing, that circulators are free to say anything to registered voters to persuade them to sign their petitions. This extends, they claim, not only to exaggerating or inventing potential benefits of the initiative, but also to misrepresenting the very nature of the petition itself.
The proponents’ argument is that the First Amendment gives petition circulators the freedom and right to lie to, deceive, and trick voters in order to obtain their signatures. This extends beyond the proponents’ right to claim, truthfully or untruthfully, that they will build not just the slots casino that is called for in the initiative but also a vast entertainment and hotel complex around that casino. It extends beyond the proponents’ right to claim that they will establish an "a charitable trust with an equity interest to fund a literacy program" (Exhibit 23) that they may or may not intend ever to establish.
The Citizens Committee, however, now claims that individuals who circulated their petition to legalize slot machines may disguise the very purpose, intent, and nature of the petition. They claim that circulators may pretend that the petition does not concern slot machines at all, but is about building a family entertainment center. They may misrepresent the petition as being against legalizing slot machines. They may even say that the petition is not an initiative petition at all, but a contest to win a car. These are all examples of misrepresentations and false statements that testimony, individual complaints to the Board of Elections (Exhibit 50), and newspaper reports entered into the record of the Board of Elections hearing (Exhibit 3) show occurred with some frequency during this petition gathering process. They are also not examples of political opinion, which is protected by the First Amendment, but of factual statements that were made about the content and nature of the initiative itself, which is not protected.
Proponents and circulators were free to make any number of claims about the initiative that are unprovable, questionable, or simply false. They could claim that a slots gambling casino would be a positive public good; that the funder of the initiative was a well-known public benefactor who was true to his word; that the casino would only be a small part of a massive entertainment complex; or that the funder of the initiative would establish an educational trust fund if the initiative were passed. However, petition circulation is not a game of three-card Monte.
Proponents and circulators may lie about the possible or potential benefits that will occur if an initiative is passed by the voters, but they are not free to deceive and trick voters about what they are signing. They are not free to claim that a petition to legalize slot machine gambling and to grant an exclusive casino license to the funder of the initiative is really a petition for better schools and health care, a petition against slot machines, or a contest to win a car, any more than they can claim that it is really about establishing world peace and ending hunger.
Proponents claim that such behavior is condoned by the First Amendment, and that District law and regulations that prohibit false statement about initiatives to voters who are potential signers of petitions is unconstitutional. They treat voters as mere suckers, patsies who deserve to be deceived if they can be. But this conflicts with and undermines the proponents’ argument that the voters signatures represent the voters’ right to petition their government. Voters cannot knowingly and knowledgeably petition their government if they do not know and are not informed about the nature of the petition that they sign.
Proponents may as well claim — and may in fact be claiming — that candidates for office have a First Amendment right to run under false, assumed identities, or that candidates have a First Amendment right to lie about their political party registrations in order to run as representatives of parties to which they do not belong.
The subject matter and nature of the initiative petition must be presented accurately to the voter, and it is not a violation of the First Amendment for the Board of Elections and Ethics to place such a requirement on the proponents of initiatives and the circulators of petitions. The laws and regulations of the District of Columbia that set forth this requirement, and the Board of Elections and Ethics’ enforcement of this requirement through the circulator’s affidavit, are necessary to ensure that this is done. And these laws and regulations, and the Board’s enforcement of them, are necessary, not to proscribe and constrict, but to protect and preserve the integrity of the voters’ right to petition their government and the integrity of the election process.
The Congressional Research Service’s report for Congress, "State Regulation of the Initiative Process: Background and Analysis of Issues in Buckley v. American Constitutional Law Foundation, Inc., et al. (Appendix), states succinctly the balancing that the Supreme Court requires between what it terms "the two divergent lines of jurisprudence":
(CRS at 2)
At a minimum, the regulation of elections must include the ability and authority to require that proponents and circulators do not deceive and trick voters into signing petitions by misrepresenting what the petition is for and about.
The Court need not address the First Amendment issues raised by the proponents, because those issues were not central to the reasoning of the Board of Elections’ order. However, if it does address those issues, it should make clear that there is not, as the proponents claim, a First Amendment right to lie to, deceive, and trick voters about the subject matter and nature of an initiative in order to induce them to sign a petition.
The Court of Appeals’ review of the Board of Elections and Ethics decision in this matter is governed by two sections of the DC Code.
As this Court found in Williams,
(Williams v. BOEE, 804 A.2d 316 [D.C. 2002] 3-4)
The District of Columbia Board of Elections is entitled to deference by the Court because its decision was reasonable and supported by substantial evidence in the record, by an exhaustive nine days of hearings, and by substantial evidence that was uncontradicted by the initiative Committee.
This was a long and complicated case, but it presented a single simple issue: protecting the integrity of our election laws in the District of Columbia. The Intervenors’ challenge to these petitions was based on numerous instances of affidavits on petitions signed by individuals who, in fact, did not circulate the petitions; on false and nonexistent addresses for circulators; on the forgery of signatures on affidavits; on repeated forgeries within petitions; and on crossed out and substituted names and addresses of circulators on petitions. All of these challenges were borne out by the preponderance of the evidence and testimony presented in these hearings.
The issue of subpoenas is especially central to the Intervenors’ argument here on review. The challengers collectively had the burden of proving extensive irregularities that impugn the integrity of the presented signatures by the preponderance of the evidence. We relied upon the Board of Elections and Ethics to subpoena witnesses that we had a legitimate need and right to question in open hearings. The proponents never objected or questioned our right to seek these witnesses. They never argued that any of our subpoenas were frivolous or improper. Likewise, the Board never objected to our right to seek testimony from these witnesses, and did, in fact, use their very best efforts to locate and serve our witnesses. They regularly reported on the record about their efforts to locate the needed witnesses. The BOEE also sought, sua sponte, federal and state immunity arrangements for eight witnesses who invoked their Fifth Amendment right against self incrimination.
1 Despite these Herculean efforts to bring witnesses to the Board hearing, the vast majority of those we sought did not appear, either because they could not be found or because they did not respond when subpoenaed. The BOEE is not required to credit the affidavits of persons who invoked the Fifth Amendment, who evaded subpoenas, or who otherwise refused to testify and submit to cross examination. With regard to these potential witnesses, the Board of Elections properly and reasonably concluded that their evidence would have supported the testimony that was given by those witnesses who did appear and who testified with grants of immunity. Therefore, not just the preponderance of the evidence, but the totality of the evidence, led to the conclusion that the signature gathering operation of the profession petition circulation companies — and at a very minimum that portion of that operation that was run by Stars and Stripes at the Red Roof Inn — was so fraught with fraud and misrepresentation that the petitions that could unquestionably be attributed to it had to be rejected.
The Board weighed the evidence presented to it by the proponents about the parallel signature gathering operation that took place at Manatt Phelps, and found that there was no evidence of systemic and pervasive fraud; and the challengers did not allege that there was. It weighed the evidence presented to it by the representatives of the Citizens Committee and the owners and employees of the signature gathering firms, and it found it unpersuasive at best with regards to any steps that the Citizens Committee, Progressive Campaigns, Inc., or Stars and Stripes took to eliminate or even reduce fraud, even after overwhelming evidence of that fraud had been presented to it by the challengers and in press reports. As a result, the Board reached the only reasonable conclusion available to it, and responded with a remedy — striking only those petitions that could without any doubt be attributed to the Stars and Stripes effort — that was the least that it could take to preserve the integrity of the election process.
Carol Colbeth (Bar No. 439198)
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Brief for Intervenors DCWatch and DC Against Slots and appendix was hereby hand delivered this 27th day of August 2004 upon the following:
George W. Jones, Jr.
Erik S. Jaffe
Kenneth J. McGhie, General Counsel
Ronald L. Drake, Pro Se
Dorothy A. Brizill
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