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DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
Monday, February 14, 2000
The Honorable Linda Cropp, Chairperson,
Council of the District of Columbia
441 4th Street, NW
Washington D.C. 20001
Dear Chairperson Cropp:
The Board of Elections and Ethics ("the Board") has
reviewed "School Governance Charter Amendment Act of 2000," ("the
Act") as it was adopted and passed by the Council on February 1, 2000. The Board
would like to take this opportunity to express its dire concerns regarding this Act and
recommend a suitable legislative alternative. In reviewing the Act, it is the opinion of
the Board that the measure is improper for submission to the electorate in its current
form as a valid charter amendment. Specifically, the measure encompasses alternative
provisions-which is inconsistent with the charter amending procedure codified at D.C. Code
§1-205, and D.C. Municipal Regulations title 3 §1801. The Board recommends employing the
Advisory Referendum, to accomplish Council's aim.
This act does not constitute a proper measure
the purpose of ratifying an amendment to the Charter. Rather, the Council wishes to place
both the "Nine Member Elected Board of Education Charter Amendment Act of 2000,@ and
the "Five Member Appointed Board of Education Charter Amendment Act A
2000"Titles I and II of the Act, respectively before the electorate for ratification.
By offering the electorate differing proposals for the School Board's composition, the
Council has effectively placed the charter amending proceeding in a posture that was never
intended by the enabling statute, §303(c) Home Rule Charter Amendments Act. When prefaced
with a brief history of the Charter and the amending process, the Board's determination
becomes more lucid.
HISTORY OF THE CHARTER AND THE AMENDING PROCESS
In 1973, the United States Congress decided to grant the
District of Columbia some form of self-government thus the creation of the District
of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 88
Stat. 785 (1973). ('`Home Rule Act").
Congress also wanted the approval of the District citizens for
this new form of government. Congress recognized that whatever entity was responsible for
ensuring a fair and democratic referendum process (i.e. adequate notice, period for
comment, public hearings. conducting election, and certifying results) should be an
independent and separate entity from the executive and legislative branch of government.
Because the D.C. Board of Elections was already a functioning independent entity in the
District of Columbia under the District of Columbia Election Act of 1955, the Board of
Elections was charged with this responsibility.1
Congress also empowered the District's Council with
ratification from a majority of the electorate to amend the Home Rule Act with
respect to Title IV of the act, which embodies the District's Charter. The committee
recognized that the amending process should be a separate provision so that it could only
be amended by an act of Congress and not the District's Council:
[I] think the amending process should be identified outside
the charter, to make the amending process unamendable ... It would make it simpler and
more understandable if we pull a couple of things that are now in the charter, that I
think ought to be out of it. and be identified as part of the congressional statutories.
Id. at 626-7 (statement of U.S. Rep. Donald Fraser).
The committee as a whole voted to separate the Charter Amending Process and designate it
as Title III of the act. Congress than gave the Board responsibility for promulgating
rules for ratifying any proposed Council amendments to the Charter in §303 of Title III.
The Charter Amendment Procedure is the vehicle for amending
any part of Title IV of the District of Columbia Self-Government and Governmental
Reorganization Act, Pub. L. No. 93-198. 88 Stat. 785 (1973) (hereinafter referred to as
"the charter"). This process begins when the Council passes an act to amend a
portion of the Charter. D.C. CODE §1205(a). In the instant case, the Council does not
leek to enact substantive law; rather, the Council seeks to place the question of what
substantive alternative should ultimately be employed as the charter amendment.
Moreover, title III of the measure saliently purports to
supersede the Board's congressional delegation of authority by directing the Board to
place Titles I and II of the act on the November 2000 general election ballot. This
provision runs contrary to the congressional intent which enabled the charter amending
process. In sum. the charter amendment procedure is ill suited for the legislative
activity at issue here because the amending procedure does not provide for various s
alternatives for a charter amendment; rather. the procedure calls for submission of a
Not to be confused with the citizen initiated referendum, the
charter amendment referendum process does not provide for conflicting measures; on the
other hand, D.C. CODE § 1-1320(s) provides for such instances in the case of initiatives
and citizen initiated referendums. This situation notwithstanding, there does exist a
statutory mechanism by which the Council may place the question of how the structure of
the Board of Education is to be changed, if at all, before the voters of the District of
Columbia. This mechanism is D.C. Code §1-229(b), which provides that A[a] special
election may be called by resolution of the Council to present for an advisory referendum
vote of the people any proposition upon which the Council desires to take action."
THE ADVISORY REFERENDUM ALTERNATIVE
It is difficult, at present, to imagine an issue that merits
an advisory referendum vote more than that of school governance. As several Council
members have themselves attested, the Council has been unable to reach consensus on this
important and controversial issue and, understandably desires that the electorate-the
entity with the greatest stake in the matter-play a major role in deciding which course of
action is to be taken. The Charter makes clear, however, that the role of the electorate
in the Charter Amendment Procedure is to ratify (or not, as the case may be) the will of
the Council as it is expressed in an act passed by that body. The present scenario
presents a Council intent on improving the School Board Governance, but unable to decide
exactly how to do so. Therefore, the Council has decided to delegate a legislative
function to the electorate which is impermissible.
That point being made, there is no obstacle whatsoever to the
Council engaging in efforts to gauge in some manner the public's sentiments concerning any
proposed changes to the Board of Education, and then taking these sentiments into account
in any act it passes. Indeed, not only does D.C. Code §1229(b) establish that this may be
done, Chapter 19 of Title 3 of the D.C. Municipal Regulations, entitled "The Advisory
Referendum Process," sets forth the details concerning how it may be done. All that
must occur in order to begin this process is the transmission of a resolution2
from the Council to the Board which conforms to D.C. Code §1-229(a) and the Board's
regulations governing the Advisory Referendum Process. I have enclosed a copy of these
regulations for your review.
In sum, the Board respectfully recommends that the Council: 1.
reconsider submitting the School Governance Charter Amendment Act of 2000 to the Board as
the act intended to commence the Charter Amending Procedure, and; 2. consider utilizing
D.C. CODE §1229(b) to call a special election for an advisory referendum vote. The Board,
of course, stands ready and willing to not only conduct this process, but also to answer
any questions you may have with respect thereto.
Board of Elections & Ethics
1. District of Columbia
Self-Government: Markup on H.R. 9056 Before the Full House Comm. on the District of
Columbia, 93rd Cong. 573 (statement of Michael Senger, House Legislative Counsel).
2. There are several advantages to
using a resolution to call a special election for an advisory referendum vote. One
implication of using a resolution is that unlike acts of the Council, which
pursuant to D.C. Code §47-392.3 must be presented to the D.C. Financial Responsibility
and Management Assistance Authority for review resolutions need not be so
presented. The Council may also specify in the resolution the date on which the special
election to present the referendum shall be conducted. Hence, the referendum could
conceivably go before the voters during the May 2, 2000 Presidential Preference Primary
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DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
March 15, 2000
Councilmember Kevin Chavous
Chairman, Education, Libraries, and Recreation
441 4th Street, N.W
. Washington, D.C. 20001
Dear Councilmember Chavous:
This is a response to your March 6th letter requesting a
Special Election to be scheduled on a proposed change to the Home Rule Charter.
In order for the Board to schedule a Special Election for a
Charter Amendment proposal, it would be necessary to amend Title 3 DCMR Chapter 18 of the
Board's regulations. The Board has discussed this matter and is prepared to modify the
regulations pursuant to the Council's request. However, the Board is concerned that the
Council be fully advised of the cost, logistics and other administrative issues associated
with scheduling a special election this year.
First, as you know, scheduling a Special Election this year
will increase the number of citywide elections from three to four during calendar year
2000. This will be the first time a Special Election will be held during a Presidential
Election year where three elections are already scheduled. Moreover, in the past, Special
Elections have historically generated an extremely low voter turnout. In fact the last two
citywide Special Elections the Board was mandated to conduct in July of 1997 and December
of 1997 resulted in a turnout of 5.5% and 7.5% respectively. The respective cost per voter
for each of these Special Elections was $1728 and $10.89.
Second, a Special Election would involve an expenditure in the
neighborhood of $350,000.00 and $400,000.00. At this time the Board does not have the
funds for this expenditure and would have to request supplemental funding in order to
cover the total projected cost. A projected fiscal impact statement that addresses the
specific costs associated with the conduct of a Special Election is attached.
Third, the Board is also cognizant of the need to attract 1100
- 1200 pollworkers necessary to assist with the election. As you are aware many of the
city's pollworkers are senior citizens who enjoy working with the Board, but have personal
commitments that may entail summer vacation plans between the two already elections
scheduled to be conducted on May 2n' and September 12, 2000. Stated simply, recruiting an
adequate number of pollworkers in the middle of the summer holiday period may pose a
Finally, consideration must be given to the reality of
potential election schedule conflicts that the Board may encounter. During the period of
June 12th through July 17th, the Board anticipates intense involvement in the Petition
Filing and Challenge Periods for the September Council Primary. Simultaneously, from June
26th through September 11th, the Board will be addressing the start of that same process
for candidates in the various election contests preparing to obtain ballot access for the
November Presidential General Election. As noted above, throughout this period staff
members will be required to recruit and train pollworkers and perform clean-up activities
from the previous election, while also making preparations for the September Election
which involves among other activities, servicing the voting equipment, completing in-house
inventory, and ordering election supplies. Nevertheless, the addition of a Special
Election to this clearly intense schedule is workable, provided that the Board is given
the proper level of funding, adequate staffing and ample notice to allow for sufficient
In sum, if the Council decides to proceed with a Special
Election for the proposed Charter Amendment the Board will adjust the regulations to
permit its occurrence. However, for the reasons noted herein the funding appropriation
must be adequate to meet the Board's mandate. Please be advised this Special Election will
be conducted with the same level of integrity and professionalism the Board has been
traditionally known to deliver.
We would appreciate an early confirmation of the Council's
intent to enable the Board to proceed in a timely manner.
Benjamin F. Wilson
cc: Alice P. Miller, Executive Director
Kenneth R. McGhie, General Counsel
Fiscal Impact of Conducting a Special Election
in the June/July 2000 Timeframe
|Ballots one Citywide
|Election Workers (est. 1,100)
|Staff Augmentation & Overtime
|Precinct Supplies (Ballot boxes, etc.)
|Advertising (Publication of Specimen Ballot in Newspaper)
|Postage (Notification to all registered voters)
Security OPM, etc.
|Communications (Precinct Telephones)
Tables & Chairs, etc.
|Estimated Total Fiscal
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LINDA W. CROPP
April 4, 2000
Ms. Alice Miller
Board of Elections and Ethics
441 - 4th Street, N.W.
Suite 250 North
Washington, D.C. 20001
Dear Ms. Miller:
This is to request that a special election be scheduled as
soon as possible to allow the electorate to vote on Act 13-295, the School Governance
Charter Amendment Act of 2000.
Thank you for your assistance in this matter.
Linda W. Cropp
cc: All Councilmembers
Charlotte Brookins-Hudson, General Counsel
Phyllis Jones, Secretary to the Council
Honorable Anthony Williams, Mayor
Constance B. Newman, Vice-Chair, D.C. Financial Authority