Anthony A. Williams, Democratic Candidate for
Mayor in the 
September 10, 2002, Primary Election
Emergency Petition for Brief of Petitioner Anthony A. Williams to
District of Columbia Court of Appeals
July 30, 2002

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DISTRICT OF COLUMBIA
COURT OF APPEALS

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent

No. 02-AA-

EMERGENCY PETITION FOR REVIEW AND BRIEF OF PETITIONER ANTHONY A. WILLIAMS

(Appeal from Order of District of Columbia Board of Elections and Ethics)

Douglas J. Patton, Bar No. 233841
Paul J. Kiernan, Bar No. 385627
Damien G. Stewart, Bar No. 465266
Holland and Knight LLP
Suite 100
2099 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 955-3000

Counsel for Petitioner

I. INTRODUCTION

The Board usurped the role of the voters of the District of Columbia and abdicated its responsibilities in conducting a nominating petition challenge. The Board had one statutory task - to determine whether the challengers sustained their burden on the record of proving that the candidate had submitted too few valid signatures. Instead, the Board reached out for a claim not even raised by the challengers, relied almost exclusively on quotes in newspaper clippings never admitted into evidence or vouched for by any witness, and concluded that the candidate had not sustained a burden of proving the validity of 2000 signatures - a burden which never rests on the candidate.

As discussed below:

• The Board did not find that the Mayor had filed a nominating petition. with too few valid signatures. Rather, without examining the signatures of the voters - save for one page of 20 signatures - the Board concluded that "there was no numerical way possible that the Mayor could achieve 2000 signatures without Counting the nominating petition sheets circulated by the Bishops" - sheets which the Board admitted it never reviewed. The Bishops were 3 out of 22 circulators. The undisputed evidence of the Registrar. of Voters - who did review all of the pages - was that there were at least 2235 valid signatures on petition pages where the law requires that only 2000 signatures be submitted.
• The Board did not find any evidence that the Mayor had personally encouraged or directed anyone to fail to comply with the law.
• The Board did not find that either of the two challenges filed against the nominating petition should be sustained. The Board dismissed one challenge because it was statutorily vague and never held that the other challengers had met their burden of proving that there were insufficient signatures for the Mayor to qualify.
• The alleged inaccuracy of statements in the Bishops' affidavits was not even raised as a challenge. Nevertheless, the Board rested exclusively on this ground to deny the Mayor access to the ballot. Moreover, the Board twisted the Fifth Amendment privilege asserted by the Bishops to create an adverse finding against the Mayor.
• The Board did not show that the Bishops had forged anyone's signature on any page of the nominating petition.

The Board's Order is without foundation in the law or the regulations. It effectively disenfranchises District voters who have clearly expressed their view that Anthony Williams should be a candidate in the Democratic Party primary. The Order is in derogation of the statutory challenge process and imposes a sanction on the candidate not authorized in the law. The Order was an unreasonable action by the Board in light of the record before it and the nature of the challenges mounted.

II. NATURE OF THE CASE

A. Order and Jurisdiction

This case comes to the Court on appeal from the written order of the Board of Elections and Ethics dated July 29, 2002, a copy of which is attached as Exhibit A. The Court has jurisdiction over this appeal pursuant to D.C. Code §1-1001.08(o)(2).

B. Nominating Petition and Proceedings Below

On July 2, 2002, petitioner Anthony A. Williams filed a nominating petition with the Board to have his name placed on the ballot for the September 10 primary election as a Democratic candidate for Mayor. A supplemental petition was filed with the Board on July 3. The Board accepted the petition for filing and posted it for the 10-day review period prescribed by law. D.C. Code §1-1001.08(o)(1).

During the 10-day review period, two challenges were filed. On July 14, 2002, Sandra Seegars filed a challenge. ("Seegars Challenge"). The Seegars Challenge asserted the following as to every individual page of the nominating petition: "Circulator and signer forged not registered. Circulator did not personally witness or circulate."

Separately, Ms. Brizill and Mr. Snyder filed Complaints under the Board's rules alleging that the nominating petition was procured by improper means including fraud. The Complaints are scheduled for hearings commencing on August 6, 2002.

On July 19, 2002, the Mayor filed his response to the challenges, including motions to dismiss both challenges. The Mayor advised the Board that he was not defending the validity of 214 pages out of the nominating petition and asked the Board to judge the validity of the petition using only the remaining 298 petition pages. Of the 5862 signatures on those 298 petition pages, the Brizill Challenge contested 5254 of those signatures; the remaining 608 signatures were not challenged.

On July 24, the Seegars Challenge was dismissed by the Board because the challenge did not meet the requirement set forth in D.C. Code §1-1001.08(o)(1) and 3 DCMR §1609.2 that a challenge must specify precisely the defects in the petition.

On Wednesday July 24, at the beginning of the hearings, the Chair announced that the purpose of the hearing was to determine the validity of the Brizill Challenge and to reach a decision as to whether the Mayor had the statutorily-required 2000 signatures to be placed on the ballot. Tr. at However, during the course of the hearing between Wednesday and Friday, the Board itself reviewed the signatures on only 1 of the 299 pages comprising the nominating petition. On that one page of signatures, nine of the signatures withstood the Brizill Challenge.

Mr. Bishop, Sr. and Mr. Bishop, Jr. appeared in response to the Board's subpoenas and both asserted their Fifth Amendment rights against self incrimination in response to all questions. Crystal Bishop did not appear in response to the subpoena due to hospitalization and, as of the conclusion of the proceedings, the Board had not obtained an order enforcing the subpoena against her.

The Board took testimony from other circulators of petitions, including Franklin Wilds and Ann Lewis. Over objection, these witnesses were questioned about signatures on petition sheets which were not the subject of the challenge and which the Mayor had announced he was not relying upon as part of the 2000 signature requirement. (The Board refers to the Wilds and Lewis testimony in its Order, at 10). Neither Mr. Wilds nor Ms. Lewis testified that any of the Bishops had forged any signatures or any circulators' affidavits.

3. Board's Order

In a concededly unprecedented move, the Board rejected the Registrar's report in total. See Tr. ____ (since the inception of Home Rule, the Board had never rejected the findings of the Registrar) (comments of Chairperson Wilson). As reflected in the written Order issued in the evening on Monday July 29, the Board concluded that absent affirmative evidence introduced by the Mayor in support of the accuracy of the circulators' affidavits signed by the Bishops, none of the signatures on sheets circulated by the Bishops should be counted by the Registrar. This position was directly contrary to the position stated by the Board's General Counsel at the pre-hearing conference that if a circulator's signatures on some petition sheets are found to be forged, "it's the Board's position not to strike all of the petition sheets of that circulator." (July 22 Tr. at 38).

Nevertheless, the Board held that if none of the signatures on any of the Bishops' petition sheets was counted, it was mathematically impossible for the Mayor to reach 2000 votes: 

The Board was prepared to review the entire nominating petition, signature by signature, and rule on the validity of each individual challenge. However, it became clear that even if the Board accepted all of the Mayor's legal arguments, there was still no scenario possible in which the Mayor could obtain 2000 signatures without including signatures attributable to the Bishops.

7. After choosing to no longer defend 214 sheets, the Mayor rested his nomination on 298 nominating petition sheets containing 5862 signatures. The Registrar of Voters determined that 523 of these signers were not registered voters, leaving 5339 signatures. If the Board subtracted the 3552 signatures submitted that were attributable to the Bishops, the Mayor is left with a maximum 1760 signatures prior to the Registrar's evaluation of the challenges.

(Order at 14-15 & n.7).

Despite the fact that the Brizill Challenge made no mention of the issue, the Board concluded that it was 

faced with the issue whether the Bishops had in fact circulated the petition which they had signed as circulators. Pursuant to D.C. Code §11001.08(o) et seq., signatures are presumed bond fide if posted for inspection. The presumption of the validity of the signatures of the persons who signed the Mayor's petition is placed in doubt as a result of statements contained in the newspaper articles made part of the record by the Mayor's counsel. These statements contradicted the information set out in the affidavits of the Bishops and other circulators. (Order, at 12)

The Board said that the newspaper articles were "material evidence of forgeries and false statements" by the Bishops. (Order, at 9). The Board deemed the newspaper reports about the Bishops' activities to be "admission[s] of the Bishops that they signed petition sheets that they did not circulate." (Order, at 14).

The Board was denied the opportunity to ascertain the veracity of the Bishops' affidavits based upon their own testimony because the witnesses refused to testify. The testimony of the circulators was critical, thus the testimony of the circulators was critical to the resolution of this matter [sic]. There was no way for the Registrar of Voters to ascertain whether the circulators personally circulated petitions, or personally witnessed each person actually sign the petition. (Order, at 14).

The Chair stated that "in good conscience" the Board would not allow the Mayor's name to be placed on the ballot. Another Board member stated that the nominating petition was not a "good faith" use of the process.

III. ARGUMENT

A. Standard of Review

To the extent that the cases present for review determinations of fact by the Board we will review to determine whether the findings of the Board are supported by substantial evidence and will not undertake an independent evaluation of the evidence. Where the Board has undertaken to define and apply its own regulations we are, of course, governed by the prescribed reasonableness standard and cannot substitute a different judgment for reasonable Board action, In cases where a question of law, including statutory interpretation, is presented, the parties and the Corporation Counsel have agreed that the proper standard for review permits this Court to determine such issues. We agree that such is a proper interpretation . . .

B. The Board's Decision Was Outside the Board's Lawful Authority

Under the law, the Board does not review a nominating petition unless the petition is challenged.² After the petition is accepted for filing by the Board, the petition is posted for public review for a 10-day challenge period. D.C. Code §11001.08(o); 3 DCMR §1609.1. The regulations provide:

If at the expiration of the challenge period referred to in this section, no challenge has been filed with respect to a nominating petition, the Executive Director, or his or her designee, shall certify the candidate and the candidate's name shall be printed on the official ballot.

3 DCMR §1609.6. Thus, absent a successful challenge, the petition is presumed valid and the candidate's name is printed on the ballot. In its Order, the Board acknowledged this presumption of validity. Order, at 12.

If the petition is challenged, the statute and regulations require that the challenge "specify[ ] concisely the alleged defects in the petition." D.C. Code §11001.08(o)(1); 3 DCMR §1609.2. The Board "shall receive evidence in support of and in opposition to the challenge and shall determine the validity of the challenged nominating petition not more than 15 days after the challenge has been filed." D.C. Code § 1-1001.08(o)(2); 3 DCMR § 1609.4. If the Board upholds the validity of the petition "it shall certify the candidate and the candidate's name shall be printed on the official election ballot." 3 DCMR §1609.5. The challenger bears the burden of establishing his or her challenges. 3 DCMR §424.1.

The statute and regulations provide objective criteria for determining the validity of a nominating petition. A nominating petition for the office of Mayor must be signed by "at least 2000 registered qualified electors of the same political party as the nominee" with the petition filed no later than 69 days before the primary. D.C. Code §1-1008.01(i). The law does not require that a candidate submit more than 2000 signatures nor does it require that a candidate prove the validity of every signature presented in the petition.

The Board's regulations require that for signatures on the petition to be valid (and they are presumed to be valid), the signatures must be 

• on the form prescribed by the Board 

• made by the person whose signature it purports to be and not by any other person. 

3 DCMR §1607.1, 1607.2. In addition to the signature of the voter, the petition "shall contain the voter's current residence address and the date the petition was signed by the voter." 3 DCMR §1607.4.

The regulations further identify nine specific situations in which a signature otherwise properly made shall not be counted as valid:

(a) The signer's voter registration was designated as inactive on the voter roll under D.C. Code §1-13110)(2) at the time the petition was signed;

(b) The signer, according to the Board's records, is not registered to vote at the address listed on the petition at the time the petition was signed;

(c) The signer is not a duly registered voter;

(d) The signature is not dated; 

(e) On a petition to nominate a candidate in a primary election, the signer is not registered to vote in the same party as the candidate at the time the petition is signed;

(f) On a petition to nominate a candidate from a ward, the signer is not duly registered in the ward from which the candidate seeks election at the time the petition is signed;

(g) The petition does not include the printed or typed address of the signer;

(h) The petition does not include the printed or typed name of the signer where the signature is not sufficiently legible for identification; or

(i) The circulator of the petition sheet was not a registered qualified elector of the District of Columbia at the time the petition was signed. 3 DCMR § 1607.5. 

The detailed statutory and regulatory scheme establishes objective criteria for determining whether there are 2000 valid signatures. The Board's records establish whether the signer and the circulator are registered Democratic voters. Those same records establish the address of the signers. The petitions themselves disclose whether the signatures are dated and whether the petition contains the printed or typed name of the signer. Finally, whether through lay or expert evaluation, the Board can determine whether the signature on the petition was made by the person whose signature it purports to be, for example, by comparison with signatures on voter registration cards, as the Registrar did.

Under the Board's long-standing practice, the specification of defects by the challenger is required to be tied to the individual signature under 3 DCMR §1607.5, which provides that "a signature shall not be counted as valid" under any of the nine enumerated situations. The signature-by-signature approach lies at the heart of the regulatory process because the signer's voter registration and her signature on the nominating petition is an individual exercise of the democratic right.

In this case, without notice, the Board abruptly changed the process and the standards for the validity of the petition. The Board rejected the report of its own Registrar of Voters who stated, based on the review of the records and of the challenged petitions, that of the 5254 challenged signatures, 2235 were valid. In other words, the Registrar concluded that the signatures met the requirements for inclusion - signed by the purported signer, on a form required by the Board, without defects of dating, address, or party affiliation, and with a circulator who was a registered voter. The Board provided no reason to dismiss the work of the Registrar nor could the Board question the conclusion reached by the Registrar.

More significant, the Board did not replace the conclusions of the Registrar with any identification at all, let alone conclusions, regarding which of the 5254 challenged signatures were valid or invalid. Since the validity of the petition turns on the assessment of certain objective criteria, the Board cannot conclude that the petition is not valid without a record which could support a challenge to, and identification of, a sufficient number of signatures so as to bring the total below 2000.

Having rejected the Registrar's conclusions, the Board simply halted the proceedings. It did not engage in the -signature-by-signature review that would be necessary to sustain any challenge; it did not even take the 2235 names found to be valid by the Registrar and review that smaller subset to determine whether the minimum needed for the petition had been achieved. 

The Board's leap from rejection of the Registrar's report to rejection of the nominating petition as a whole was illogical, even absurd. The rejection of the Registrar's report did not shift the presumption of validity of the nominating petition. Instead, the Board disregarded the majority of the filed petitions without reviewing any of them. Nothing in the statute or the regulations authorizes the Board to take such sweeping liberties with the rights of individual voters. See Board of Elections v. Democratic Central Committee, 300 A.2d 725 (D.C.1973). The Board's action was capricious and lawless.

The Board's lawful authority is limited to assessment of the validity of the petition in the face of a proper challenge.³ If the Board follows the statute and its a, own regulations, its job is completed when it either (1) determines that a challenger has established grounds to invalidate enough signatures to cause a candidate to fall
below the required minimum, or (2) causes the candidate's name to be placed on the ballot. Here, the Board failed to follow the law and its own regulations, leading to an unreasonable and unsupportable result.

Twenty years ago, this Court had to reverse the Board when it similarly ignored the law and regulations because the Board had concluded that the petition a process had been manipulated. In Dankman v. District of Columbia Board of Elections and Ethics, 443 A.2d 507 (D.C.1981), supporters of a tax reform ballot initiative presented 27,415 signatures for placing the measure on the ballot. The law required that there be 14,000 signatures, including 5% of the registered voters in at least five of the District's eight wards. After the Board made its initial assessment that the petitions complied with the requirements for regularity under the law, several challenges were filed. The Board found that 22,624 signatures had been obtained by seven circulators who were not residents of the District and therefore could not be qualified as circulators. 443 A.2d at 510-11. (Indeed, the circulators had been flown in from around the country by the National Taxpayers' Union solely to collect signatures for this initiative). In language that echoes the sentiments in the present case, the Board in Dankman stated that "their lacking legal status to circulate the petition so tainted this Initiative #7 and the electoral a process that all of the signatures they obtained are rejected .... [T]he evidence before us indicates such a manipulation of the initiative process in direct violation of statutory direction, that . . . the [challenged] signatures . . . must be rejected in order to preserve the integrity of the petition process . . . [and ensure] that the statutory mandate be followed." (quoted in 443 A.2d at 511 (opinion of Judge Harris); id. at 64-65 (dissenting opinion of Judge Mack)).

In reversing the Board and ordering that .the initiative be placed on the ballot, the Court focused on the fact that the Board had deviated from its own regulations. Those regulations stated that the failure of a circulator to be a registered voter did not invalidate the signatures of those persons who were qualified electors. 443 A.2d at 513. Because the regulation was binding on it, the Board did not have authority to ignore the regulation - or "qualify the rule into oblivion," id. at 514 - in concluding that the initiative and the electoral process had been "tainted." Id. at 513. The Court obviously did not endorse the violation of the rules by the promoters but found that the "paramount concern must be with the validity of the signatures on the petitions." Id. at 515.

Here, the statute supports the conclusion that rejection of otherwise valid signatures of registered voters who sign the petition is not the prescribed remedy for any alleged wrongdoing by a circulator. D.C. Code §1-1001.08(b)(2) provides:

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 of signatures is warranted only where the circulator is not registered⁴ and does not authorize the invalidation of voters' signatures where the circulator's affidavit is somehow inaccurate. The statute provides a different remedy if the affidavit is inaccurate and identifies that remedy in the succeeding statutory sections:

(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.

The statutory scheme is clear: Unlike subsection (b)(2) which disallows signatures as the remedy for circulation by a non-registered voter, the stated remedy for violations of subsection (b)(3) regarding the circulator's affidavit is criminal prosecution of the circulator who swears falsely. The Board has no statutory authority to strike valid voters' signatures because of an inaccurate, or even false, affidavit of a circulator.

C. The Board's Order is Inconsistent with the Law

The Board's Order completely reverses the normal evidentiary burdens and rules. The Board states that affidavits should not be used as the basis for administrative decisions but that newspaper articles should be. Moreover, the Board tries to erect on this flimsy - really non-existent -- evidentiary record, the twin legal conclusions that (1) the invocation of the Fifth Amendment privilege by Mr. Bishop, Sr. and Mr. Bishop, Jr. supported the inference that their affidavits were false and therefore invalid, and (2) if those affidavits are invalid, the signatures on all of their petition pages should be discarded. All aspects of this analysis are demonstrably wrong as a matter of law.

The Board states that it found to be "material" evidence the statements attributed to the Bishops in various newspaper articles. Contrary to the Board's Order, the Mayor did not introduce these articles into evidence; indeed, the Mayor objected to the introduction of any newspaper articles into evidence. Tr. - While the articles were discussed in a prehearing conference among counsel and the parties, the articles were not part of the record. The Board cannot rely on evidence not of record in reaching its decision. 3 DCMR §423.11 ("In a contested case proceeding under this chapter, no decision or order of the Board on a complaint or petition shall be made except upon the exclusive record of the proceedings before the Board.")

Moreover, the Board's tortured defense notwithstanding, newspaper articles are the quintessential inadmissible hearsay. As the District of Columbia Circuit noted: "We seriously question whether a New York Times article is admissible evidence of the truthfulness of its contents." Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 1165 (D.C.Cir.1995).

The reason why newspaper articles are inadmissible is because they lack the indicia of trustworthiness sufficient to overcome the hearsay problem. In Hutira v. Islamic Republic of Iran, - F.Supp.2d. -, 2002 WL 1489302 (D.D.C.), Judge Lamberth recently reviewed the reasons why a newspaper article would not be admitted, even in the absence of objection from the defendant who had defaulted in the case:

First, there is no doubt that the newspaper article is hearsay and that it would ordinarily be inadmissible. See, e.g., Eisenstadt v. Allen, 113 F.2d 1240 (9th Cir.1997) (finding that "newspaper articles clearly fall within the definition of hearsay . . . and, thus, are inadmissible."...

[E]vidence constituting hearsay is normally inadmissible because it lacks sufficient guarantees of reliability . . . .In accordance with this principle, courts have specifically found that "[u]nsupported newspaper articles usually provide no evidence of the reporter's perception, memory or sincerity and, therefore, lack circumstantial guarantees of trustworthiness." Eisenstadt, 113 F.3d at 1240. See also United States v. Harris, 271 F.3d 690, 696 (7th Cir. Connoting that "daily newspapers are not reliable evidentiary sources,").

Id. at *6. Indeed, as the Court stated, in assessing summary judgments or in entering judgments in ex parte proceedings, courts routinely rely on affidavits as fulfilling the requirements of due process while "there is no similar dispensation for newspaper or magazine articles, which not being attested are considered less reliable than affidavits or depositions." Id. (citations omitted).

The Board of Elections stood this evidentiary regime on its head, purporting to reject affidavits based on uncorroborated statements in newspaper articles which were not even admitted into the record. While in administrative hearings, hearsay evidence may be relevant and probative and may even serve as "substantial evidence" upon which to base a finding of fact, this Court has cautioned that:

The weight to be accorded hearsay evidence is determined by the item's "truthfulness, reasonableness, and credibility." Among the factors to consider in evaluating the reliability of hearsay evidence are whether the declarant is biased, whether the testimony is corroborated, whether the hearsay statement is contradicted by direct testimony, whether the declarant is available to testify and be cross-examined and whether the hearsay statements were signed or sworn. 

Wisconsin Avenue Nursing Home v District of Columbia Commission on Human Rights, 527 A.2d 282, 288 (D.C. 1987) (citations omitted, emphasis added) (holding that investigator's testimony was hearsay insufficient to serve as "substantial evidence").

2. Fifth Amendment

The Board compounded its evidentiary error by drawing a legally improper and irrational inference from the invocation of the privilege against self-incrimination by the witnesses Mr. Bishop, Sr. and Mr. Bishop, Jr.

The statute requires that circulators swear or affirm that they personally circulated the petition, witnessed the signature of each person signing the petition and inquired of the signers whether they are registered voters in the same party as the candidate. D.C. Code §1-1001.08(b)(3). In the Board's view, the statements in the newspapers "contradicted the information set out in the affidavits of the Bishops and the other circulators." (Order, at 12). The Board subpoenaed the Bishops "to decipher whether nominating petitions were, in fact, asserted to be valid by the circulators themselves," (Order, at 14), another test not called for by the statute. The Board therefore concluded that the affidavits should be not be considered reliable.

The Bishops, of course, had the absolute right to assert their privilege. See Kastigar v. United States, 406 U.S. 441 (1972) (Fifth Amendment privilege against self-incrimination may be asserted in any proceeding, civil or criminal, administrative or judicial, interrogatory or adjudicatory); 3 DCMR §420.1 (privilege against self-incrimination is applicable to hearings before the Board).

The Board inferred from the Bishops' invocation of the Fifth Amendment that their testimony would call into question the truth of the affidavits which they signed, particularly on the question of whether the Bishops had circulated the petition sheets. While a negative inference can sometimes be drawn against a party who asserts the Fifth Amendment in a civil context, the Board here drew an inference against the Mayor based on the assertion of the privilege by two witnesses in this case. The Board apparently also drew a negative inference against the Mayor based on the non-appearance of Crystal Bishop who was in the hospital.

The Board does not claim that the Mayor had any control over the availability of these witnesses. Order, at 13 ("Even counsel for the Mayor's campaign and the Board were precluded from eliciting evidence. . . "). Yet the Mayor has been ruled ineligible to stand for election on the Democratic Party ballot in September because the witnesses invoked their constitutional rights or, in one case, failed to attend the hearing because of apparent medical reasons. The Mayor was effectively hit with a "missing witness" presumption based on the assertion of the privilege by a witness admittedly not available to any party.

The requirements for a "missing witness inference" are that the proponent of the inference demonstrate that the witness is able to explain the transaction such that he would be expected to be called as a witness and that the witness is "peculiarly available to the party against whom the inference (of unfavorable testimony) is made." Katkish v. District of Columbia 763 A.2d 703, 706-707 (D.C.2000) (citations omitted). The missing witness inference creates the danger of "creating evidence from nonevidence" Id. (citations omitted).

Here, the Board not only created evidence out of nonevidence - determining that the Bishops' testimony would be damaging to the Mayor's petition on material points - but the Board made the "evidence" dispositive: "Absent some assurances as to the veracity of the affidavits contained on those sheets, the Board was unable to determine which nominating petitions, if any, the Bishops circulated." (Order, at 16). The Board also suggested that it was the Mayor's burden to bolster the affidavits by introducing evidence about the voters who signed the petitions, again subverting the normal processes in a challenge. Id. The challengers themselves could have called an expert witness to try to establish that there were forgeries, or called a newspaper reporter to testify about what the Bishops said or did not say, or called signatories to testify that the Bishops did not circulate the petition. The challengers did none of these things and did not carry their burden of proof. The Board did not find that the challengers had carried their burden.

3. Disregard of Voters' Signatures

Even assuming that a negative inference was created by the Bishops' assertion of their constitutional right against self-incrimination, the Board's decision disenfranchised 2235 qualified, registered electors. In the District; the will of the voters is paramount and should be preserved inviolate.

(a) The Board is authorized to invalidate signatures of registered voters only in limited circumstances.

The Board is authorized to disregard an otherwise valid signature only in certain limited and narrowly defined circumstances. According to the regulations, signatures appearing on a nomination petition sheet are counted as valid unless all the information is not provided by the circulator in his or her signed affidavit. See 3 DCMR § 1600.6. The regulations also authorize the Board to invalidate signatures contained on a nominating petition under one of the nine specific circumstances set forth at 3 DCMR § 1607.5, quoted above. Similarly, the statute provides, in pertinent part, that "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." See D.C. Code § 1-1001.08(b)(2). These provisions comprise the only instances where the signature of a registered, qualified elector can be deemed invalid by the Board. Tellingly, none of those circumstances existed in this case.

(b) The Board imposed improper remedy to address perceived threat to the integrity of the process.

The proper remedy to address a person who willfully makes a false statement on of circulating affidavit is to seek criminal sanctions -- not to invalidate the signatures of registered, qualified electors. In this regard, D.C. Code § 1-1001.08(b)(3), provides as follows:

Any circulator who willfully violates any provision of this section shall upon conviction thereof, be subject to a fine of not more than $10,000 or to imprisonment of not more than 6 months, or both. Each occurrence of a violation of this section shall constitute a separate offense.

Thus, the City Council decided that the proper remedy to address false statements made by purported circulators of petition sheets is to impose criminal sanctions. The law does not state that, if the information which is stated in the circulator's affidavit is inaccurate (or constitutes a false statement), the remedy is to reject all of the otherwise valid signatures of the registered voters who signed the petition sheet. Indeed, there is no reason to believe that the Council made that determination inadvertently. See Harvey v. District of Columbia Bd. of Elections and Ethics. 581 A.2d 757, 759 (D.C. 1991). As such, the Board's decision to create a remedy that has no statutory or regulatory foundation must be reversed. See also 3 DCMR, §1600.6 (signatures on petition sheets not counted as valid unless all required information is provided by circulator in his or her affidavit; regulation does not provide for invalidation of signatures of circulators' affidavit is inaccurate). 

This Court's well-established precedent is to hold the will of the voters inviolate. For instance, in Harvey this Court reviewed the Board's decision to invalidate the signatures on a nominating petition because they were obtained by a circulator who was not a registered voter. Id. at 758. The Court held that "[a]n agency may not thwart the legislative will by treating as identical situations which the governing statute treats differently." Id. at 759.

In Citizens Against Legalized Gambling v. District of Columbia Board of Elections and Ethics, 501 F.Supp. 786 (D.D.C.1980), the Court upheld the validity of the Board's then-existing Rule 1607.9 which stated that the failure of a circulator to comply with the statute would not invalidate the signatures of voters. The Court agreed that such a rule was permissible both because of the importance of the signer's signature and because of the availability of criminal penalties to address those who break the law:

In this case, it is alleged that some of the circulators swore that they were registered voters, and yet they were not. But the name of the circulator is correct, and all necessary information is provided. To 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. In this situation, the Court finds that noncompliance by the circulator need not - as a matter of law - invalidate any signature so long as the criminal sanctions are pursued. Cf. Mosley v. Board of Elections, 283 A.2d 210 (D.C.1971) (refusing to invalidate nominating petitions that omitted the initiative date); Edwards v. Hutchinson, 178 Wash. 580, 35 P.2d 90, 92 (1934) (refusing to invalidate signatures collected by circulators who were paid in violation of state law).

Although Rule 1607.9 limits the remedies available for illegal circulation, the criminal process is available to pursue anyone who illegally participated in solicitation of signatures. The political process is available to inform the electorate about the tactics employed by the circulators and their sponsors. And the administrative process is available to those who would propose to change the rule for the future.

443 A.2d at 527 (Judge Ferren, concurring).

In sum, the failure of a circulator to personally circulate the petition and to witness the signing of each signature is not among the bases for rejecting the signatures of registered qualified electors on the petition sheet. The law provides for other remedies for such violations which do not infringe on voters' rights.

IV. CONCLUSION

The sole issue before the Board was whether the challengers had established that Mayor Williams' nominating petition did not contain 2000 valid signatures. The evidence and the undisputed factual conclusion of the Registrar was that the 2000 voter standard was met. The voters have spoken on this nomination and the Board should not interpose itself to thwart that will.

Allegations of impropriety can and will be addressed in another forum on another date. Those allegations should not have distracted the Board from its task.

The Board's Order was unreasonable and unsupportable on the record and under the law. Under the statute and the regulations as well as the case law, the Court should restore Mayor Williams to the Democratic Party ballot.

Vincent Mark J. Policy, Bar No. 204701
Greenstein DeLorme & Luchs, P.C.
1620 L Street, , N.W.
Suite 900
Washington, D.C. 20036
(202) 452-1400

Douglas J. Patton, Bar No. 233841
Paul J. Kiernan, Bar No. 385627
Damien G. Stewart, Bar No. 465266.
Holland and Knight LLP
Suite 100
2099 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
(202) 955-3000

Counsel for Petitioner 

1. The transcripts from the hearings have not been completed as of the time of this filing. Petitioner shall supply the transcripts to the Court as soon as possible.

2. For a nominating petition, the Board does not review the validity of signatures unless there is a challenge. The statute provides that the Board can accept the nominating petition "as bona fide with respect to the qualifications of the signatures thereto." D.C. Code §11001.08(o)(1) By contrast, the Board does review the validity of signatures for an initiative and referendum. See 3 DCMR §1007.1. Dankman v District of Columbia Board of Elections and Ethics 443 A.2d 507, 510 (D.C.1981).

3. As the Board's own website describes it in the section providing information for candidates: "Under D.C. law, the Board of Elections and Ethics does not verify candidate nominating petition signatures for accuracy of information. The petitions are accepted as bona fide, subject to a challenge period, during which any registered voter may challenge the validity of the petition signatures. www.dcboee-org/htmldoes/challeng.htm (July 28, 2002).

4. As argued below, and apparently acknowledged by the Board, see Order at 4 n.2, the requirement that a circulator be a registered voter has been held unconstitutional. Buckley v American Constitutional Law Foundation, 525 U.S. 182 (1999).