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Anthony A. Williams, Democratic Candidate for
Mayor in the
September 10, 2002, Primary Election
Response to Challenges to Nominating Petitions
July 17, 2002

DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS

In re: Challenges to Petition to Nominate Anthony "Tony" Williams for the Office of Mayor of the District of Columbia

RESPONDENT ANTHONY WILLIAMS' RESPONSE TO THE CHALLENGES

Anthony Williams, the Nominee in the challenged Nominating Petition and the Respondent in these proceedings, by undersigned counsel, herein responds to the two Challenges which have been filed to his Nominating Petition, which are as follows:

(a) the Challenge to Nominating Petition filed on July 15, 2002 by Ms. Dorothy Brizill, Mr. Gary Imhoff, Mr. Shaun M. Snyder and Mr. Mark L. Sibley (which consists of two parts which they have consolidated into one filing) (the "Brizill/Snyder Challenge"); and

(b) the Challenge to Nominating Petition filed by Ms. Sandra Seegars on July 14, 2002 (the "Seegars Challenge").

For the reasons set forth below, both the Brizill/Snyder Challenge and the Seegars Challenge should be denied, and the Board should find that Anthony Williams has satisfied the Nominating Petition requirements of D.C. Code § 1-1001.08(i)(1).

A. Introduction.

The sole legal issue before the Board in this case is whether the Nominating Petition of Anthony Williams has been "signed by at least 2,000 registered qualified electors of the same political party as the nominee ...." D.C. Code § 1-1001.08(i)(1)(B). Paramount consideration should be given by this Board to the more than 2,000 registered qualified electors who, by signing the Nominating Petition, have expressed their will that a Democratic candidate for Mayor shall be Anthony Williams. That is the focal point of this statute. With respect to other challenged signatures, though we urge that the allegations of impropriety raised by the Complainants should be investigated and dealt with in other proceedings, they should not distract from or cloud that fundamental focus of these proceedings.

We do not attempt to minimize the seriousness of the allegations by the Complainants with respect to these other challenged signatures, nor do we attempt to avoid them to the extent that they have any legitimacy; rather, as discussed below we suggest a procedure whereby the Board can separate the wheat from the chaff within the short time limits of the statute. Ultimately, we believe that, when that is done, the Nominating Petition contains the valid signatures of at least 2,000 registered qualified electors of the same political party as the nominee.

Whatever may be the atmosphere surrounding this Nominating Petition, that requirement is at the heart of the statute and at the heart of this part of the democratic process, and that requirement has been satisfied here. Obviously, the Board's decision has impact beyond the Respondent. As the Court of Appeals stated in Lawrence v. Board of Elections, 611 A.2d 529, 532 (D.C. 1992):

"At the outset, we are mindful of the fact that any decision in this area affects not only the prospective candidate but also the voters as a whole, since a meaningful part of the right to vote is to vote for a candidate of one's choice."

B. Suggested Procedure.

The time periods imposed by the statute (D.C. Code 1-1001.08) on both the parties and the Board within which to analyze approximately 10,000 signatures on the Nominating Petition require practical concessions by the parties, in order to make this statutory procedure workable. Therefore, we have analyzed the entire Nominating Petition and, taking into account the allegations that have been made by the Complainants, we suggest the following approach.

The first group of petition sheets, which is listed in Schedule A to this Response is the set of 215 pages from the Nominating Petition which will not be defended by the Respondent. As to them, the Board should take such action as it deems appropriate. However, as discussed below, both Complainants allege that virtually all signatures on the Nominating Petition have been forged. That accusation casts far too wide a net, which would have this Board throw out legitimate signatures in violation of this statute. We suggest instead that the Board should focus its attention on whether the petition pages other than those listed in Schedule A meet the requirements of the statute and the Regulations. We submit that they do and we further submit that the Board will find that these petition forms alone qualify the Nominating Petition under the statute and the Regulations.¹

As to the 215 pages listed on Schedule A, the Mayor asks the Board to take such action as it deems appropriate. Although the Mayor believes that these other pages may contain valid signatures which would be added to the total necessary to place him on the ballot - and although the Mayor does not seek to disenfranchise any voter who signed his Nominating Petition - the Mayor does not intend to defend before this Board the validity of these remaining pages. It is in the interests of the voters to separate the question of whether Anthony Williams should be a Democratic candidate from the question of whether there were improprieties in the collection of signatures beyond those needed for his nomination.

C. Response to the Challenges.

In this section, we respond to the two Challenges which have been filed with respect to the Nominating Petition.

1. Seegars Challenge.

a. lack of specificity

The Seegars Challenge should be rejected in its entirety by the Board and should not be considered further because it violates 3 DCMR § 1609.2, which provides that:

"Any registered qualified elector may challenge the validity of any petition by a written statement duly signed by the challenger and filed with the Board during the ten (10) day posting period, specifying precisely the alleged defects in the petition; provided that the challenge is filed with the Board by no later than 5:00 p.m. on the day of the posting." (Emphasis added.)

The Seegars Challenge fails this fundamental test. Ms. Seegars' Challenge consists in its entirety of copying the left hand side of every page of the Nominating Petition and challenging every signature with the same Reason for Challenge: "Circulator and signer forged, not registered. Circulator did not personally witness or circulate." Accepting this Challenge would render the entire challenge process meaningless, and would simply throw the burden of a challenge into the lap of the Board. The Regulations provide otherwise when they require the challenger to specify concisely the alleged defects in the petition. 3 DCMR § 1609.2. Indeed, the statute itself (D.C. Code §11001.08(o)) requires that a challenger shall file a challenge "specifying concisely the alleged defects in the petition."

This specification of defects by the challenger is required to be keyed to each individual signature under 3 DCMR 1607.5, which provides that "a signature shall not be counted as valid" in any of the nine circumstances set forth in that Regulation. This signature-by-signature approach lies at the heart of the regulatory process, because the signer's voter registration, and his or her signature on the Nominating Petition, is an individual exercise of the democratic right. Simply repeating the same phrase over and over again, as the Seegars Challenge does, fails to satisfy these regulatory requirements, and should be dismissed. Compare Jackson v. Board of Elections, 770 A.2d 79 (2001) (dismissing election challenge for lack of specificity).

For this same reason, any suggestion that all petition sheets should be thrown out or that all petition sheets of particular circulators should be thrown out, because some are allegedly defective, is contrary to the signature-by-signature approach of the Regulations. Moreover, nothing in the statute or the Regulations authorizes this Board to take such sweeping liberty with the individual rights of individual voters. Board of Elections v. Democratic Central Committee, 300 A.2d 725 (D.C. 1973).

b. registration of circulator

The Seegars Challenge alleges that every circulator was "not registered." The lack of registered voter status of a circulator is not a basis for rejecting a petition. The Supreme Court held in Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) that an election statute which requires circulators to be registered voters is unconstitutional, and therefore cannot be enforced. In that case the petition being circulated was an initiative petition, but the Supreme Court specifically recognized that, as to its holding, there is no difference between initiative petition circulators and candidate petition circulators, when it said: "Initiative-petition circulators also resemble candidate-petition signature gatherers, however, for both seek ballot access". 525 U.S. at 191. Accordingly, any lack of registered voter status of the circulators is not a basis for rejecting any petition sheet.

c. circulators' affidavit

The second basis upon which the Seegars Petition relies is that the "circulator did not personally witness or circulate". This also is not a basis for rejecting the signatures of registered qualified electors on an initiative petition. It is true that 3 DCMR § 1600.5 provides that:

"1600.5 Each circulator shall swear or affirm upon oath that he or she has done the following:

(a) Has personally circulated the petition;

(b) Has personally witnessed the signing of each signature on the petition . . . . "

However, 3 DCMR § 1600.6 provides that:

"Signatures appearing on nominating petition sheets shall not be counted as valid unless all required information is provided by the circulator in his or her signed affidavit." (Emphasis added.)

This Regulation does not say that, if the information which is stated in the circulator's affidavit (as it clearly is here) is somehow inaccurate, the remedy is to reject all of the otherwise valid signatures of the registered voters who signed the petition sheet.' The statute itself supports the conclusion that rejection of otherwise valid signatures of registered voters who sign the petition is not the prescribed remedy. D.C. Code § 11001.08(b)(2) states:

"(2) Only registered, qualified electors of the District of Columbia are authorized to circulate nominating petitions of candidates for elected office pursuant to this subchapter. The Board shall consider invalid the signatures on any petition sheet which was circulated by a person who, at the time of circulation, was not a registered, qualified elector of the District of Columbia."

This statutory provision expressly says that invalidation is warranted only where the circulator is not registered, and does not authorize the invalidation of signatures where the circulator's affidavit is somehow inaccurate. The remedy for inaccuracy is otherwise. The very next statutory sections (D.C. Code §1.1001.08(b)(3) and (4) state:

"(3) All signatures on a petition shall be made by the person whose signature it purports to be and not by any other person. Each petition shall contain an affidavit, made under penalty of perjury, in a form to be determined by the Board and signed by the circulator of that petition which shall state that the circulator is a registered voter and has:

(A) Personally circulated the petition;

(B) Personally witnessed each person sign the petition; and
(C) Inquired from each signer whether he or she is a registered voter in the same party as the candidate and, where applicable, whether the signer is registered in and a resident of the ward from which the candidate seeks election.
(4) Any circulator who knowingly and willfully violates any provisions of this section, or any regulations promulgated pursuant to this section, shall upon conviction be subject to a fine of not more than $10,000, or imprisonment for not more than 6 months, or both. Each occurrence of a violation of this section shall constitute a separate offense. Violations of this section shall be prosecuted in the name of the District of Columbia by the Corporation Counsel of the District of Columbia."

Unlike Subsection (b)(2) above regarding non-registered circulators (which expressly refers to invalidating signatures), the statute provides as the only remedy for a violation of subparagraph (3) that any circulator who willfully violates the petition circulator requirements can be convicted of a crime. See Mitchell v. District of Columbia, 741 A.2d 1049 (D.C. 1999). Again, the statute does not provide for the rejection of signatures of otherwise registered qualified electors, and it would be contrary to the statute for the Board to do so. As the Court of Appeals previously instructed:

"An agency may not thwart the legislative will by treating as identical situations which the governing statute treats differently." Harvey v. Board of Elections, 581 A.2d 757,759 (D.C. 1990).

In a prior case (Dankman v. Board of Elections and Ethics, 443 A.2d 507 (D.C. 1981)), this Board rejected signatures of registered voters for what the Court called the "sins of the circulators". The Court of Appeals, en banc, reversed, stating the fundamental message which we convey to the Board here:

" The possible sins of the circulators are not to be visited upon the electors who signed the petition sheets in good faith.****

We find. that the Board's interpretation . . . was plainly erroneous and restricted rather than implemented the basic purpose of the Initiative Act. That purpose, in the final analysis, is to permit the electorate to vote on appropriate issues. [Citations omitted.]
*** The paramount concern must be with the validity of the signatures on the petitions, for '[t]o deny the persons who signed these petitions the chance to have those signatures count -- solely because of misconduct by others that does not cast doubt on the signatures themselves -- would force this Court to stand on form rather than substance.' Citizens Against Legalized Gambling, supra, 501 F.Supp. at 790; cf. Pendleton v. Board of Elections and Ethics, supra, 433 A.2d at 1104 ('Our purpose in reviewing elections is merely to insure than no voter was disenfranchised through improper interpretation by the Board.')"

Dankman, supra, 443 A.2d at 514-515.

For these reasons, the Seegars Challenge must fail.

2. Brizill/Snyder Challenge.

The Brizill/Snyder Challenge is actually a combination of two submissions: (a) The submission on July 15, 2000 on the letterhead of D.C. Watch by Ms. Brizill and Mr. Imhoff, and (b) the submission filed on July 15, 2002 by Messrs. Snyder and Sibley. In a letter to the Board, they advised that these two pieces comprised one Challenge.

a. lack of specificity

The Brizill/Snyder Challenge is confusing, possibly because of the challengers' decision to join the two challenges together. Where D.C. Watch appears to challenge certain signatures as forgeries, its "co-challenger" does not challenge those same signatures as forgeries or does not challenge the signatures at all. These contradictions are rife in the Brizill/Snyder Challenge, making it virtually impossible for the Mayor or this Board to decipher the precise nature of the challenges. Under 3 DCMR §1609.2, the Challenge is not specific and should be rejected.

b. other bases for challenge

The Brizill/Snyder Challenge also contains a coded "Table of Reasons for Challenge", with letter categories of reasons for the challenge. These letters are placed next to a registered voter's name on the petition form to denote the basis for challenging that signature. To the extent that the Brizill/Snyder Petition, in its category (i) in the Table of Reasons for Challenge, challenges signatures on the basis that "the circulator of the petition sheet was not a registered qualified elector of the District of Columbia at the time the petition was signed", it fails to state a legal basis for a challenge. As stated above, the Supreme Court has rejected any requirement that circulators be registered voters. Buckley, supra. Likewise, category (m) in the Reasons for Challenge in the Brizill/Snyder Challenge states that it is challenging signatures on the basis that "the date of the affidavit predates the signature, signifying that the circulator did. not witness the signature." As stated above, this is not a basis for rejecting signatures of registered qualified electors on the petition, but rather the remedy lies elsewhere.

The chief fault, however, with the Brizill/Snyder Challenge is that it casts far too broad, and unjustified, a net. The vast majority of the signatures are challenged on the basis that they are a "forgery" either as to the signature of the registered voter or as to the signature of the circulator, or as to both. The persons who filed this Challenge are defined in the Regulations (3 DCMR § 400.2(a)) as a "Complainant", which is defined as "one who initiates an action for relief or to enforce a law, rule or regulation under the jurisdiction of the Board . . ." As the proponent of the requested order by this Board, the Brizill/Snyder Challengers bear the burden of proof that the signatures are forgeries. E.g., Columbia Realty Venture v. Rental Housing Commission, 590 A.2d 1043, 1048 (D.C. 1991) (". . .the party asserting a particular fact has the burden of proving that fact.")

We submit that a challenge of forgery should be a very heavy burden, and should require very specific testimony inescapably leading to the conclusion that the signature in question is a forgery. To do otherwise would simply disenfranchise registered qualified electors signing a petition much too easily. If there is any doubt, the balance should be tipped in favor of upholding the challenged signature, and clear and convincing evidence should be required before any conclusion otherwise is even considered. See Kamins v. Board of Elections, 324 A.2d 187, 192 (D.C. 1974) (construction of the statute in favor of the franchise is the course which must be followed in the absence of a compelling reason to do otherwise).

Reviewing the challenged petition sheets in the D.C. Watch portion of the Brizill/Snyder Challenge (which actually shows the supposedly forged signatures of the registered qualified electors in the right hand margin) demonstrates in thousands of instances that the handwriting of the challenged signatures is not the same, thus indicating signatures by different persons, that is, the registered voters who signed the petition. There is no evidence on the face of the Brizill/Snyder Challenge to indicate otherwise. This challenge of forgery is simply far too broad.

It may be that the Brizill/Snyder Challengers believe that if the handwriting in the left column of the petition form, where the printed name and address of the registered voter appears, is in the same handwriting, that constitutes a forgery. Or they may believe that if the "date signed" column appears to have the same handwriting, that indicates a forgery as well. However, it is not improper for the circulator of the petition to print the name and address of the registered voter on the left hand side of the petition and to fill in the dates signed. The only requirement is that in the column "Petitioner's Signature" the registered qualified elector himself or herself is required to sign. This is consistent with 3 DCMR § 1607.5, which only says that the sheet is to include the printed or typed name and address of the signer and the date. It does not say that the registered voter has to fill in those blanks himself or herself.

In summary, the Board should review the petition sheets which we have suggested. When that is done, we believe that it will be seen that the valid signatures of registered qualified electors exceed the required 2,000 minimum by a substantial margin. That, in the final analysis, is the legal issue to be resolved by this Board under the statute (D.C. Code §1-100.08(i)(1).

For these reasons, the Brizill/Snyder Challenge must also be rejected.

D. Conclusion.

For the reasons stated, the Board should find that the Nominating Petition of Anthony Williams for Mayor satisfies the statutory and regulatory requirements, and that his name shall appear on the primary election ballot.

Respectfully submitted,
Dated: July 19, 2002
Vincent Mark J. Policy
D.C. Bar No. 204701
Greenstein DeLorme & Luchs, P.C.
1620 L Street, N.W.
Suite 900
Washington, D.C. 20036
Counsel for Nominee Anthony Williams

1. Our analysis of the petition will continue over this weekend. Additionally, our suggested approach is not intended to suggest that the Board is restricted from reviewing whatever signatures as it sees fit.

2. Additionally, we note that 3 DCMR § 1607.5 provides that:

"A signature shall not be counted as valid in any of the following circumstances . . ."

and then provides nine bases for rejecting a signature on a petition. The failure of the circulator to personally circulate the petition or to witness the signing of each signature on the petition sheet is not among the bases for rejecting the signatures of registered qualified electors on the petition sheet.

Anthony A. Williams, Democratic Candidate for Mayor in the September 10, 2002, Primary Election Response to Challenges to Nominating Petitions July 17, 2002