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DISTRICT OF COLUMBIA IN RE:
REPLY TO RESPONDENT ANTHONY WILLIAMS'S RESPONSE TO CHALLENGESI. INTRODUCTIONRespondent Anthony Williams (Respondent) announces that there is an "atmosphere surrounding this Nominating Petition." Respondent's Response (Response), at page 3. Mr. Williams should know, for he is responsible for creating that atmosphere through massive election fraud, such as has never before been seen in this city. Mr. Williams acknowledges the allegations of impropriety raised by the Brizill/Snyder challenge and urges the Board to investigate those allegations of impropriety and deal with them in other proceedings, but then to let him enjoy the fruits of those improprieties in this proceeding. (RESPONSE), at pages 2-4. Mr. Williams concedes to the Board that he will not defend before the Board of Elections and Ethics (Board) 2151 pages of petitions submitted by the Respondent's own campaign on behalf of the Respondent. However, Mr. Williams declines to state any factual, theoretical, or legal basis for distinguishing between these petition sheets and others that are similarly situated and similarly fraught with forgeries, false affidavits, and other instances of election fraud and legal deficiencies. Mr. Williams quotes the finding of the Court of Appeals in Lawrence v. Board of Elections, 611 A.2d 529, 532 (D.C. 1992) 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." The challengers agree. The Board is responsible for protecting the integrity and reliability of elections in the District of Columbia and for guarding them from fraud. These petitions constitute the largest scale and most blatant violations of election law that have ever been presented to the Board of Elections. Mr. Williams asks the Board to ignore its regulations and the Code of the District of Columbia in order to allow him to benefit from those violations. The Board's actions to enforce the voting law and to protect the election process will have a salutary effect on protecting the voters' right to an honest and fair election process. All of the assertions made in defense of the remaining petitions that Mr. Williams chooses to defend are addressed seriatim in this brief. II. RESPONDENT'S ASSERTIONSIn his brief the Respondent makes a number of assertions. First, the Respondent asserts that the Brizill/Snyder Challenge is confusing and has a lack of specificity. Second, the Respondent asserts that the Board should disregard the controlling District of Columbia statute and regulations. Third, the Respondent defends signatures collected after the circulator's affidavit was signed. Fourth, the Respondent urges the Board to shift the burden of proof that the alleged signers of the petitions are whom the candidate alleges them to be from the candidate to the challengers, and asserts that the challengers bear the burden of proof that signatures that they allege to be forgeries are forgeries. That assertion is dealt with below. Fifth, the Respondent urges the Board to adopt the clear and convincing standard of proof to prove that the persons who signed the petitions are not who they purport to be. III. ARGUMENTA. The Challenge Satisfies the Specificity Standard of the Statute and RegulationsThe Respondent asserts that the Challenge lacks specificity. 3 DCMR, Sec. 1607.5 sets out the grounds on which a signature shall not be counted. The Challenge meets that requirement. In some instances, the Challenge notes that the signer is not registered, or is not registered to vote at the address listed. In others, the circulator was not a registered voter. The forgeries fit into any number of categories, including not being registered to vote, and not being registered at the address listed. The Respondent also asserts that the Brizill/Snyder challenge is confusing because it consists of two separate analyses of the petition sheets that have been joined as a single challenge. The assertion that the challenge is confusing fails on its face because neither the Board of Elections nor its staff is confused by the filing of the analyses as a single challenge. Second, the Respondent asserts that the Brizill/Synder challenge is flawed because it contains a "Table of Reasons for Challenge," and Ms. Brizill's analysis cites that key rather than writing out in full the legal citations beside each challenged signatures. The use of such a key and abbreviations is consistent with past practice of the Board of Elections, and the use of such a key cannot be held to be confusing to the Board and its staff if it is not in fact confusing to them. The use of a key, rather than of fully writing out every legal citation for each and every challenged signature, does not constitute a lack of specificity. The Challenge satisfies the specificity requirement of the regulation. The Respondent errs. B. The Board Is Bound to Follow District of Columbia LawThe Respondent asserts that the Board must disregard controlling statute and regulations as unconstitutional. The Respondent errs, both because the controlling statute and regulations are constitutional and because the Board is bound to follow the statute and regulations. The Board of Elections and Ethics, like every administrative agency, is required to adhere to its own regulations. Dankman v. District of Columbia Board of Elections and Ethics, 443 A.2d 507, 513 (D.C.App. 1982). Dankman has been consistently cited since its issuance for the proposition that an administrative agency is bound by and must adhere to its own regulations. 3 DCMR, Sec. 1604.2 requires that the circulator of a nominating petition be a registered qualified elector. Respondent's reliance on Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 119 S.Ct. 636 (1999), is misplaced. Buckley involved initiative petitions, not nominating petitions. In Buckley, the Court recognizes that a state may regulate the initiative process to deter fraud and diminish corruption. Id. at 204-205. Those regulations are designed to prevent precisely what occurred here, election fraud and corruption. Mr. Williams's response mischaracterizes and misreads Buckley by stating that, although the finding that petition circulators do not need to be registered voters in the state addressed only initiative petitions, "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.'" In fact, the Court specifically differentiated the cases of candidate and initiative circulators, both in the rationale as to their finding and as to results for election law. In the quotation cited in Mr. Williams's response, Justice Ginsburg is explaining the rationale of the Court of Appeals' decision. Justice Ginsburg says that the Court of Appeals sought guidance from Supreme Court decisions regarding both handbill distribution and ballot access. Since the handbill distribution cases are also purely free speech cases, they allow for few state restrictions. However, ballot access cases have allowed for reasonable restrictions for, as Justice Ginsburg said, "States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally." The quotation from Buckley in Mr. Williams's response, ironically, compares initiative to candidate petitions in order to support reasonable state regulations and restrictions. In addition, elsewhere in its decision the Court took pains to differentiate initiative petitions from candidate petitions. The rationale for Buckley is a free-speech rationale, resting on the belief that initiatives represent political speech in a way that candidate ballots do not. As Justice Thomas said in his concurring decision, "We have suggested that ballot initiatives and candidate elections involve different considerations." And the joint decision of Justices O'Connor and Breyer that concurs in part and dissents in part from the majority decision explicitly discusses these different considerations: "the threshold inquiry is whether Colorado's regulations directly and substantially burden the one-on-one, communicative aspect of petition circulation or whether they primarily target the electoral process, imposing only indirect and less substantial burdens on communication. If the former, the regulation should be subject to strict scrutiny. If the latter, the regulation should be subject to review for reasonableness." After the Supreme Court's decision in Buckley, the District of Columbia reviewed the election laws of the District of Columbia and revised them by Bill 13-82. This bill removed the previous requirement that circulators of initiative and referenda petitions be registered voters in the District of Columbia, requiring them instead to be residents of the District of Columbia who are 18 years of age or older. However, the City Council explicitly considered a proposed provision that a similar change be made in District law regarding candidacy petitions, and both the Committee on Government Operations and the Council as a whole rejected that provision. The conclusion of the legislative body of the District of Columbia was that Buckley did not require any change in the law regarding petition circulation in candidate elections, and the law requiring circulators of candidates' petitions to be registered voters correctly remained in force. The state has a legitimate interest in preventing election fraud. Orange v. Board of Elections and Ethics, 629 A.2d 575,579. Keeping accurate, reliable, and up-to-date registration lists is an important state interest. Id. D.C. Code, Sec. 1-1312(o)(3) provides that
D.C. Code, Sec. 1-1312(o)(3) is not severe in its burden. It is a rational and nondiscriminatory exercise of the state's power to regulate access to the ballot. Id., at pages 580-581. To require election officials to do more than compare names against registration lists and other Board records would be to saddle them with tasks and costs that the Constitution does not require them to bear. Id., at page 581. At the time of Orange, there were 102 persons named Mary Johnson; 73 persons named Robert Williams; and 63 named Michael Smith. If the addresses of a signatory bearing one of these names does not agree with the Board's records, which one of the Mary Johnsons would the Board decide to be the correct. Id., at page 581. D.C. Code, Sec. 1-1312(o)(3) does not infringe the due process or First Amendment rights of either the Respondent or the voters who sought to place him on the ballot. Id., at page 581. C. Signatures Signed After the Circulator's Affidavit Is Signed Are InvalidThe Respondent asserts that the Board must count signatures that were collected after the circulator's affidavit was signed. The circulator's affidavit certifies signatures that the circulator had personally collected; the affidavit cannot be prospective or signed in advance of the signers of the petition; and this has been the consistent finding and policy of the Board of Elections and Ethics. The Respondent also relies upon Dankman v. Board of Elections and Ethics, 443 A.2d 507 (D.C. 1981) to assert that the Board may not reject signatures on a petition because of any flaws in the signature of its circulator, and it quotes Dankman as saying that, "The possible sins of the circulators are not to be visited upon the electors who signed the petition sheets in good faith." This quotation, however, is not a holding of the court; it is not binding on the Board; it is the court's paraphrase of the existing Board regulation at the time. Dankman held that the Board erred because it violated one of its own regulations; it did not forbid the Board from requiring circulator's affidavits or from enforcing them. After Dankman, the Board revised its regulations to bring them into compliance with D.C. Code. It is now required by Dankman to abide by and enforce its regulations as they exist. Respondent Williams asserts that the circulator's affidavit should be reduced to a legal nullity and absurdity, having no effect upon the petition to which it applies. The Respondent asserts that a circulator may indeed be prosecuted for signing a false affidavit, but that the affidavit serves no purpose. On the contrary, the affidavit must be assumed to serve the Board's purpose of ensuring the integrity of the signature-gathering process and of attesting to the validity (to the best of the circulator's knowledge) of the signatures that the circulator swears to having witnessed. The Respondent errs. D. Respondent Bears the Burden of Proof That Signatures Are ValidThe Respondent asserts that the Challengers must bear the burden of proof of a negative — that the signers of the challenged petitions are not the persons they are purported to be. It is the respondent that is making the assertion, that the signature on the petition is the valid signature of the registered voter whose name and address are represented on the petition, and the Respondent that must assume the burden of defending that assertion when it is challenged. Mr. Williams's response says that, "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." This is an inaccurate statement of the case. A challenge does not in itself eliminate a challenged signature; it only brings it to the attention of the Board of Elections and Ethics, which then makes a determination of whether or not the signature matches the signature of the voter on his or her voter registration. Mr. Williams would require challengers to prove on the basis of specific testimony that each individual challenged signature is a forgery in order to bring the challenge to the Board, but the challengers cannot make that determination themselves, since that determination is made by the Board. On hundreds of petition sheets filed by candidate Anthony Williams all of the signatures on a sheets are in the same handwriting, and Mr. Williams's response to our challenge concedes, however reluctantly, that those sheets need not be considered by the Board of Elections and Ethics. However, the response by Mr. Williams proposes that many of the challenged petition sheets, even though the printed names and addresses and dates are all in the same hand printing, "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." The proposition advanced by Mr. Williams is that only the most unsophisticated forgery, in which all signatures are in the same hand, can be challenged, and that a slightly more sophisticated forgery — the traditional "kitchen-table" forgery in which a partially completed petition sheet is passed among several people to fill in signatures — must be presumed to be valid. However, the presence of four or five — or more — different handwritings among the signatures on a single petition sheet is not evidence that the signatures are the true and valid signatures of the registered voters whose names are used. The Williams campaign engaged in both kinds of forgery, and both are equally invalid and illegal. The Respondent errs. E. The Standard of Proof Is Preponderance of the EvidenceThe Respondent asserts that the Board must adopt the clear and convincing standard of proof in order to invalidate a signature that it believes to be a forgery, and asserts that the Board's processes and methods of determining forgeries are legally inadequate. Essentially, the Respondent is proposing that the Board of Elections must adopt a method of verifying signatures and identifying forgeries that can be easily overwhelmed by submitting a massive number of forgeries, such as was done in this case. This would prevent the Board from carrying out its mission of protecting the integrity of the election process, including promoting the honesty and integrity of petitions. The Respondent cannot impose on the Board a method of distinguishing valid from forged signatures that is inherently so burdensome that it cannot be carried out, either because of the necessary time constraints during an election period or because of its overwhelming cost. The Respondent errs. IV. SYNOPSIS OF CASESThe following cases have been cited by the Respondent and/or by the Challengers. While not all of the cases have been discussed above, they all bear on this case; and while the Respondent has cited some of the cases, they are all inapposite to his position. Harvey v. District of Columbia Board of Elections and Ethics, 481 A.2d 757 (D.C.App. 1990). D.C. Code, Sec. I-1320(h)(3) invalidated petitions for initiatives and referendum if the circulator were an unregistered voter. However, it did not invalidate nominating petitions where the circulator was an unregistered voter. Accordingly, the regulation that purported to invalidate nominating petitions circulated by an ineligible person was inconsistent with the statutory scheme, and void. D.C. Code, Sec. 1-1312(b)(2), was then enacted after the Harvey decision, to make it clear that only registered, qualified electors of the District of Columbia are authorized to circulate petitions. Orange v. Board of Elections and Ethics, 629 A.2d 575 (D.C.App. 1993). In this case the Board invalidated 1293 challenged signatures. The Respondent chose to contest the Board's decision on only 589, less than half of those invalidated. Id., at page 577. The state has a legitimate interest in preventing election fraud. Id., at page 579. Keeping accurate, reliable, up-to-date registration lists is an important state interest. Id. D.C. Code, Sec. 1-1312(o)(3) provides that
D.C. Code, Sec. 1-1312(o)(3) is not severe in its burden. It is a rational and nondiscriminatory exercise of the state's power to regulate access to the ballot. Id., at pages 580-58l. To require election officials to do more than compare names against registration lists and other Board records would be to saddle them with tasks and costs that the Constitution does not require them to bear. Id., at page 581. At the time of Orange, there were 102 persons named Mary Johnson; 73 persons named Robert Williams; and 63 named Michael Smith. If the addresses of a signatory bearing one of these names does not agree with the Board's records, which one of the Mary Johnsons would the Board decide to be the correct. Id., at page 581. D.C. Code, Sec. 1-1312(o)(3) does not infringe the due process or First Amendment rights of either the Respondent or the voters who sought to place him on the ballot. Id., at page 581. Dankman v. District of Columbia Board of Elections and Ethics, 443 A.2d 507 (D.C.App. 1981). In this initiative case, some of the circulators were not qualified electors when they circulated the petitions. The Board of Elections and Ethics, like every administrative agency, is required to adhere to its own regulations. Id., at page 513. At that time the Board had in effect a rule that stated that the failure of the circulator or an initiative or referendum petition to be a registered qualified elector would not invalidate the signature of an otherwise registered qualified elector. Id., at page 513, note 11. The Board interpreted to the contrary. The Court held that interpretation was not reasonable. The Court also stated that "[t]he possible sins of the circulator are not to be visited upon the electors who signed petition sheets in good faith." Id., at page 514. Dankman has been consistently cited since its issuance for the proposition that an administrative agency is bound by and must adhere to its own regulations. Mitchell v. District of Columbia, 741 A.2d 1045, 1055 (D.C.App. 1999). An administrative agency has wide discretion when implementing legislation pursuant to statute. Lawrence V. Board of Elections and Ethics, 611 A.2d 529, 532 (D.C.App. 1992). A critical ingredient of the electorate's ability to vote effectively is choice among the candidates with demonstrated support. By injecting massive fraud into the process, Mr.. Williams has diminished that critical ingredient, and has hampered the electorate's ability to vote effectively for its choice among the candidates with demonstrated support. Kamins V. Board of Elections for the District of Columbia, 324 A.2d 187, 191 (D.C.App. 1974). No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. To the extent that a citizen's right to vote is debased, his is that much less a citizen. It is a fundamental political right because it is preservative of all rights. Columbia Realty v. Rental Housing Commission, 590 A.2d 1043, 1048, (D.C.App. 1991). In this case the tenant alleged that the management company was receiving a kickback that resulted in an increase in the rent ceiling, but offered no support. The District of Columbia Administrative Procedure Act makes clear that the party asserting a particular fact, as the tenants did here, has the burden of affirmatively proving that fact. In this case, the Respondent has asserted through sworn affidavits that the signatures on his petition are valid. Having made that assertion, he must carry that burden of proof. Board of Elections v. Democratic Central Committee, 300 A.2d 725, 727 (D.C.App. 1973). The intentional use of invalid signatures on a nominating petition may constitute a fraud on the entire democratic process and warrants the strongest possible condemnation. Jackson v. Board of Elections and Ethics, 770 A.2d 79, 81 (D.C.App 2001). In this case the petition failed to meet the Court's standard. The complete statement of error read: "violation of the election process." Any petition brought to the Court under D.C. Code, Sec. 1-1315(b) must contain a concise statement of claims and must identify facts showing an entitlement to relief. In order to obtain relief, the petitioners' burden is not only to show defects or irregularities in the election; petitions must prove also that the flawed election led to a result that is not true. Id. V. CONCLUSIONFor all the foregoing reasons, the Board is bound to enforce the Code of the District of Columbia and its own regulations, and, should it find that the Respondent lacks an adequate number of valid signatures under the Code and those regulations, to uphold the challenge to the Respondent's petitions. Respectfully submitted, Ms. Dorothy Brizill 1. The count of 215 pages was that given by the Respondent. The count by the Board of Elections of the actual page numbers ceded was 214 pages. At the prehearing on July 22, 2002, the Respondent withdrew his concession regarding one page, reducing the final count of conceded pages to either 214 or 213 pages. |
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