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Anthony A. Williams, Democratic Candidate for
Mayor in the 
September 10, 2002, Primary Election
Reply Brief of Petitioner Anthony A. Williams and Opposition to Motion for Summary Affirmance Filed by DC Board of Elections
District of Columbia Court of Appeals
August 1, 2002

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DISTRICT OF COLUMBIA
COURT OF APPEALS

ANTHONY A. WILLIAMS, Petitioner, v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent

No. 02-AA-854

REPLY BRIEF OF PETITIONER ANTHONY A. WILLIAMS AND OPPOSITION TO MOTION FOR SUMMARY AFFIRMANCE FILED BY DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS

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

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

TABLE OF CONTENTS

I Introduction
II. The Record of the Hearing Undercuts Key Elements of the Board's Decision

A. Actual scope of the challenge
B. Circulation of Petitions
C. Remedy for irregularities
D. No "concession" of forgeries
E. Role of the affidavits

III. The Administrative Record Does Not Support the Board's Findings

A. The record does not show that the Bishops were responsible for any forged signatures or false affidavits
B. The Board should not have relied on newspaper accounts
C. Improper inferences - Fifth Amendment and absent witness

IV. Conclusion

I. Introduction.

The after-the-fact reasoning employed in the Board's Brief cannot obscure the reality of what happened - and did not happen - during the Board's conduct of the hearing: the sole basis announced for the Board's decision now was expressly not an issue at the hearing. Had it been an issue, the Board's decision to throw Mayor Williams off the Democratic Party primary ballot would still not be supported by the clear evidence that is demanded to strip voters of their rights to select candidates of their choice. In fact, when the Court reviews the testimony cited, it is clear that the Board's decision is not supported by any evidence. The decision was flatly inconsistent with the Board's statutory powers and contrary to the approach to election law cases used by the Board and by this Court previously. The Board is not entitled to summary affirmance. Rather the Order should be vacated and the Mayor's name restored to the ballot.

II. The Record of the Hearing Undercuts Key Elements of the Board's Decision.

The Brief for Respondent District of Columbia Board of Elections and Ethics ("Board Br.") which is also relied upon by the Board in moving for summary affirmance, boils down to the following proposition:

In instances such as the one that the Board was faced with in the instant case, where there are strong questions as to whether the circulators actually circulated the petition and witnessed each signature therein, there is no way to determine whether or not the required information - in this instance the signature of the individual who actually personally circulated the petition and who actually personally witnessed each listed individual sign the petition - has actually been provided. The Board made every effort to ascertain whether or not this essential required information was present but was regrettably unable to do so. And, in light of the evidence contained in the administrative record which strongly indicated that particular petition sheets were severely tainted as a result of circulator irregularities, the Board reasonably decided not to afford such petition sheets the benefit of the doubt.

Board Br. at 14. Put that way, the Board's position would have a surface appeal.

But the record that was actually developed cannot be squared with this artful yet after-the-fact rationalization for the Board's action.

A. Actual scope of the challenge

First, it is clear that the Brizill Challenge did not include a challenge to the nominating petition based on whether the circulators' affidavits were truthful. The Board cites the challenge filed by Mark Sibley and Shaun Snyder (consolidated with the one filed by Dorothy Brizill). The Board states that in their July 15, 2002, letter the challengers state that "pages submitted by Scott Bishop, Sr. contained the nonexistent date of June 31st, and that Scott Bishop, Jr. collected what they allege to be an unlikely number of signatures, 540, in one 24-hour period. These allegations implied a belief that either Scott Bishop, Jr. had forged signatures or had not personally circulated the petition himself." (Board Br. at 7), Everyone was supposedly on notice, therefore, that the petition was being challenged "on the grounds that a circulator had not actually circulated a nominating petition attributed to him." Id.

However, the Brizill Challengers (both Ms. Brizill and Mr. Snyder) specifically disavowed this interpretation of their challenge. In an extended colloquy on the first day of hearings, the challengers agreed that their challenge not embrace an allegation that voters! signatures should be discarded if the person signing as circulator on one petition did not in fact circulate that petition. July 24 Tr. at 260-71. As Ms. Brizill explained:

MS. BRIZILL: We filed two documents at the same time; one was a challenge and one was a complaint [to trigger investigation for potential referral for prosecution). The challenge, as Mr. Policy indicates, has very specific objections referencing provisions in the Code or in the regulations that we believe the petitions were in violation.

The issue of petitions being - the affidavit on petitions being signed by individuals who did not, in fact, circulate the petition is a complaint item in our Letter of Complaint, it is not a challenge. We did not feet that in our challenge we could challenge a signature on that particular basis.

CHAIRMAN WILSON: So I think we have an agreement between you and Mr. Policy, that it is not the subject of this challenge and should not be heard as part of the challenge issue, it should be heard, arguably. as part of the criminal referral.

July 24 Tr. at 265 (emphasis and parenthetical added). With specific reference to the challenge letter filed by Mr. Snyder now relied upon by the Board as providing "notice" to everyone that the question of the accuracy of circulators' petitions was the basis for the challenge - the parties. the Board and the Registrar of Voters all agreed that it did not include such a challenge and no such challenge had been asserted:

MR. POLICY: For the record, I see reasons for challenge. I do not see listed on there that one person circulated a petition and another person signed it.

MS. FAIRLEY [Registrar]: Me neither.

MR. POLICY: If Scott Bishop - did you say "me neither?"

MS. FAIRLEY: Yes, I don't either.

MR. POLICY: If Joe Smith circulated the petition, and Scott Bishop signed his name to that petition, that is not a forgery because Scott Bishop is signing Scott Bishop. So I would object to. . . .

CHAIRMAN WILSON: No, it's not a forgery.

MR. McGHIE: It's a false statement.

MR. POLICY: It's a false statement.

CHAIRMAN WILSON: You are correct.

MR. POLICY: So, if the allegation is that that's included in the Snyder challenge, I disagree. It's just not there.

* * * *

CHAIRMAN WILSON: What Mr. McGann caused us to consider were instances where someone, in fact, circulated a document, but never actually signed as a circulator, and a second person signed his or her actual name as a circulator.

Mr. Policy's point is that is not a specific failure to follow our affidavit procedure that's set out in your challenge; is that correct or not?

MR. SNYDER: I believe that's correct, but that is a violation of the affidavit.

CHAIRMAN WILSON: I promise you it's a violation of the affidavit.

MR. SNYDER: But I do agree with what you said, yes.

CHAIRMAN WILSON: I promise you we will act with more than deliberate speed on a criminal prosecution.

July 24 Tr. at 268-70. Thus, the sole issue on which the Board ultimately stripped Mayor Williams of his position on the ballot - the veracity (not the completeness) of circulators' affidavits - was explicitly and repeatedly identified as an issue which was not part of the challenge. The evidence which the Board now cites to support this issue was introduced for other purposes; throughout the challenge hearing, there was no challenge based on circulation of petition sheets by one person and signing of the affidavit by another person.

B. Circulation of Petitions

In its Order and in its Brief, the Board refers to whether the sheets were circulated by members of the Bishop family. Order at 16 ("Board could not determine with any level of confidence whether the nominating petition sheets were in fact circulated by the Bishops"); Board Br at 14 ("strong questions as to whether the circulators actually circulated the petition and witnessed each signature therein").

Yet at the hearing,, when the Mayor introduced evidence about the efforts made by some of the Bishop family to circulate petitions, the Chairman himself interjected: "I don't believe there is any dispute that the Bishops circulated nominating petitions. And I think the goal of the Board is to separate the wheat from the chaff. We will -- there may be some nominating petitions that were inappropriate or portions thereof, and some that are appropriate. And we're going to examine them as the parties have requested us to do." July 25 Tr. at 139-40.

Despite the acknowledgement that the Bishops had circulated petitions and that the statutory challenge process involved "separating the wheat from the chaff," the Order disallowed all petition pages associated with the Bishop family because the Board claimed a lack of confidence that the Bishops had circulated some petitions.

The Board appeared to adopt the long-discredited "falsus in uno, falsus in omnibus" approach in considering the petition sheets circulated by the Bishops. Whereas that maxim instructed that "if jurors believed that a witness had willfully testified falsely as to any material matter, then they were to disregard the witness' entire testimony, this Court recognized 20 years ago that this jury instruction was inappropriate and should not be given. See Kinard v. United States. 416 A.2d 1232, 1284 (D.C. 1980). Moreover, the Board never made a finding that any one of the Bishops had willfully testified falsely about anything.

C. Remedy for irregularities

The Board argues that since "particular petition sheets were severely tainted as a result of circulator irregularities, the Board reasonably decided not to afford such petition sheets the benefit of the doubt." Board Br. at 14. what the Board actually did was to conclude improperly that because some sheets were tainted, then all sheets associated with the Bishop family should be disallowed from consideration.

As discussed in Section 111(A), below, there was no evidence of forgeries or other irregularities to support disallowance of any particular sheet submitted by any member of the Bishop family. However, even assuming there was a problem with 1 sheet or 10 sheets, the parties had already been advised that the Board would not disqualify all of the petition sheets for a particular circulator in such an instance and could not strike an entire nominating petition. July 22 Tr. at 37-41:

MR. McGHIE [General Counsel]: Okay if you're asking me whether or not the presence of invalid signatures alone gives the Board enough - Board authority to strike the whole petition sheet, that's not the Board's practice, nor does the Board have the authority to do that.

* * * *

MR. POLICY: If the circulator's signatures have on some of the petition sheets have, let's just been say been forged, and others have not, is the Board's -

MR. MoGHIE: To strike all of them - no, the Board's - it's the Board's position not to strike all of the petition sheets of that circulator.

* * * *

MR. POLICY: You go signature-by-signature, is that right?

MR. McGHIE: We go signature-by-signature.

July 25 Tr. at 37-38.

Having acknowledged that the Board's practice and authority did not include disallowing all of a circulator's sheets for the problems on some of that circulator's sheets, the Board erred in later doing exactly that in connection with sheets circulated by the Bishop family.

D. No "concession" of forgeries

The Board asserted in its Order that the Mayor conceded that there were forgeries in the petition sheets which the Mayor did not seek to defend in the hearing. Order at 3. The same assertion is made in the Board's Brief claiming that part of the "overwhelming evidence in the record" regarding the conduct of the Bishop family members was "(t)he Mayor conceded 214 petition sheets presumably as forgery) of which 167 or 78% were attributable to the Bishops." Board Br. at 19. See also Intervenors' Brief at 4.5, 9.

What the Mayor actually did was voluntarily limit the scope of inquiry for the Board by agreeing that 214 pages should not be considered. The Mayor did not concede that there were forgeries and certainly did not concede that problems in the pages he was not using for his nomination should be extrapolated as if those were pages he was using for his nomination.

Moreover, the Board's and Intervenors' use of the phrase "we do not defend forgeries" which was attributed to the Mayor's counsel in the Order and in the briefs as a concession that the 214 discarded pages were forgeries, in fact never occurred. The Mayor did not say that the 214 pages were not being defended because they were forgeries. Indeed, the discussion did not relate to those 214 pages at all. Rather, the statement was that if the signature of a circulator on the sheets remaining before the Board was proved to be a forgery, the Mayor would not seek to defend the voter signatures on those pages. July 24 Tr. at 185-98. With reference to circulators' signatures on the 298 petition sheets which were the subject of the hearing, counsel stated:

MR. POLICY: I'm not here, we're not here to defend forged signatures. So if somebody can show, I'll take the example that if somebody can show that Scott Bishop, Jr. didn't sign it, somebody else did, or even taking your example that it is just blatantly not the signature of Scott Bishop, Jr., and that's the hard part, we're not here to defend forgers. So that if these are found to be forgeries, throw them out.

* * * *

CHAIRMAN WILSON: What we are going to do today, and to quote a famous general, "we're going to stay on this line if it takes all summer." What we're going to do is we're going to go through each of the challenges that Ms. Brizill has made, and we're going to go through them line-by-line, as necessary.

I appreciate your offer, though, and I'm going to take you up on it. If I misunderstand you, you tell me. It sounds to me as though that you're willing to stipulate that if a circulator states that this is not his or her signature, that if there is evidence that there is fraud in that signature, that you're prepared to throw those signatures out.

MR. POLICY: I said that if the Board finds that the signature of the circulator is forged, that we are not here to defend those signatures.

Now you mixed up a lot of things in it about what types of evidence there are and things of that nature. I have to wait and see, but if the conclusion is, and the evidence is clear, that this signature of the circulator is a forgery, I'm not telling you that as a legal matter you have to accept it; I'm telling you as a factual matter we're not going to defend it.

CHAIRMAN WILSON: Because you don't believe that is defensible, correct?

MR. POLICY: I don't believe that that is defensible, correct.

CHAIRMAN WILSON: And all I'm asking you is should, as we go forward with this, Ms. Fairley [the Registrar of Voters] be able to present evidence to you that we have petition sheets allegedly signed under the name of a person, and it turns out that that signature is forged - of the circulator, excuse me - the signature of the circulator is forged, that you are not going to attempt to count the signatures on a sheet in which the circulator's signature is forged?

MR. POLICY: You show me how you prove that, and if I agree with you that you've proven it, it will not be defended.

July 24 Tr. at 192-93, 195-97. It should also be noted that the Registrar testified that of the 298 petition sheets under her review, a total of 26 were challenged on the basis that the signature of the circulator was forged. July 24 Tr. at 185-88.

At the hearings, as demonstrated below, there was no evidence that Scott Bishop, Sr., Scott Bishop, Jr., or Crystal Bishop forged any circulator affidavit on the petition sheets that the Mayor was defending, or that the petitions attributable to them in the group that the Mayor was defending had their names forged, or that they signed petition sheets which they had not circulated. The Board never made any such finding of fact with respect to any of the Bishops, a finding which the Board. would have to make under the contested case standards. See D.C. Code § 2-509 (2001)(forxnerly §1-1509); 3 DCMR §423, 428. To the contrary, the Registrar of Voters confirmed that 2285 signatures on the sheets were valid; the unrebutted validity of the circulators' signatures on those petitions included the signatures of the Bishops. It is simply incorrect to claim that the Mayor ever conceded that there were forged circulator signatures attributable to the Bishop family. Moreover, it remained the burden on the challengers to demonstrate any such forgery, which they never did.

E. Role of the affidavits

The Board's Brief, as well as the Brief filed by the Intervenors, suggests that the point of the entire challenge procedure is to determine the veracity of the circulator's affidavit. But the truth of the circulators' affidavits - whether the circulator actually circulated the petition and witnessed the signatures - is not the "essential required information," Board Br. at 14, in a challenge proceeding. Rather, the essential information is the veracity of the signatures of the voters: Were there 2000 registered Democrats who actually signed petition sheets? If the Board can determine that 2000 registered Democrats did that, the main point of the statute is satisfied.

The circulator's affidavit does play a role, as the Board's Brief states. The Mayor does not dispute that point and has called for appropriate sanctions against anyone who lied on his or her affidavit. However, it needs to be remembered always that this is an election process. The Board is trying to determine whether a challenger has demonstrated that the candidate has too few valid signatures, not whether a petition has untruthful affidavits. The incorrect focus on the veracity of affidavits ultimately led the Board to disregard the conclusion of its own Registrar of Voters that there were more than enough valid signatures on petition sheets actually signed by the circulators.

Moreover, as discussed below, the Board - having attached great significance to the affidavit - turned around and discarded the affidavits on a slender thread of inadmissible hearsay, erroneously supplemented by inferences drawn from the conduct of other people on petition sheets which were not before the Board and which no one testified had anything to do with the Bishops.

III. The Administrative Record Does Not Support The Board's Findings.

There is no reliable evidence in the record to support the Board's decision in this case. The Board based its decision on suspected "irregularities" associated with the Mayor's nominating petition. The Board suspected that the Bishops were responsible for these alleged irregularities - stating that "there [is] a question as to whether or not they (the Bishops) had, in fact, actually circulated the petitions attributed to them, and/or had attempted to validate with their own signatures petitions with forgeries contained therein," Board Br. at 11 - but there was no factual basis developed in the record to support the Board's suspicions.

In discarding all of the petitions gathered by any members of the Bishop family, the Board relied on newspaper articles, testimony from other circulators about other petitions which no one connected to any member of the Bishop family, and inferences drawn from the fact that two members of the family took the Fifth Amendment and the third one was in the hospital.

The record is devoid of any evidence that the Bishops made false statements on any of the circulator's affidavits that were included in the nominating petition before the Board. The Board did not subpoena, and the challengers did not produce, a single witness to testify that his or her signature was forged by the Bishops or that the Bishops had signed a circulator affidavit on a sheet they had not circulated.

A. The record does not show that the Bishops were responsible for any forged signatures or false affidavits.

None of the evidence which the Board relies upon on page 19 of its Brief in fact links the Bishops to any forged signatures or false affidavits. The Mayor submits that it was wholly within the challengers' burden to show such a link (and the Board used its power to help them try to establish such a link). But none of the witnesses referred to in the Board's Brief (Mr. Wilds, Ms. Alston, Ms. Lewis) so testified; none of them even mentioned the Bishops. The Board leapt to the conclusion that the Bishops were responsible for forged signatures and false affidavits without any evidentiary support.

In its Brief, the Board contends that the testimony of several witnesses establishes "overwhelming evidence" that the Bishops were discredited. Board. Br. at 19. The record, however,. does not bear out that contention.

For instance, Ann Lewis, testified that she signed a petition sheet that had actually been circulated by Mr. Robert Yeldell. July 26 Tr. at 29-30. She did not attribute any misconduct to the Bishops. Franklin Wilds testified that he had no idea who forged his signature to several petition sheets, all of which were among those the Mayor did not attempt to defend. July 24. Tr. at 472-76, 485-86.

Similarly, Wanda Alston testified that she did not collect four signatures which appeared on a petition sheet she had circulated, but she did not know how those signatures appeared on her petition. July 25 Tr. at 17-19. None of these witnesses so much as mentioned any of the Bishops, let alone connected them to any alleged wrongdoing. At most, the record establishes that Scott A. Bishop, in his capacity as Field Coordinator of the re-election effort, oversaw the nominating petition drive.

That alone does not prove anything. There is no evidence linking the Bishops to these forged signatures from the nomination petition.

The Board also now gives evidentiary weight to the fact that the Mayor did not defend 214 pages from the original nomination petition, even though the Order does not rest on that ground. Compare Board Br. at 19 with Order at 16.

Withdrawal of petition sheets could not possibly create an inference of misconduct attributable against the Bishops. In every election challenge, individual voters or ballots or signatures are withdrawn from the "contested" group. Neither the Board nor the Court has ever drawn a negative inference as to the validity of the remaining votes or challenges based on the withdrawal of some of the votes or names. See Allen v. District of Columbia Board of Elections and Ethics, 663 A.2d 489 (D.C.1995) (challenger received full hearing before Board and Court despite e1iminating over half of her initial challenge).

B. The Board should not have relied on newspaper accounts.

It is clear from a review of the record that the Board relied heavily - almost exclusively - on "admissions" by Scott A. Bishop and Crystal Bishop as reported in newspaper articles which were marked at the prehearing conference. The Board's reliance on these articles is misplaced.

The Board's errs in its contention that the Mayor "opened the door" for it to consider the newspaper articles as relevant testimony. Those articles were not evidence at all. The Chair expressly recognized this:

CHAIRMAN WILSON: I want to be very clear. Someone said earlier that they read the Washington Post. I do, too, but the Washington Post is not evidence, and I want to make very clear that, while this is relevant to some of the work that the Board of Elections and Ethics has to do, it is not essential as it relates to the specific challenge process.

July 26 Tr. at 47. See also July 24 Tr. at 138 ("We shouldn't base it on what is stated in the newspaper. That's why the Board has subpoenaed these individuals. I want to hear it straight from the horses' mouth") (statement of Chairman Wilson); July 26 Tr. at 245 (sustaining objection to references to newspaper article).

The Board trumpets the fact that the Mayor's counsel marked 3 newspaper articles to preserve the record regarding a potential claim of bias arising from the act that the Chair had appeared on the radio before the hearing. The Board then erroneously leaps to the conclusion that every statement in the article is admissible and part of the record. Under the completeness doctrine, where a party moves into evidence excerpts of a document for a limited purpose (which did not even occur here), the opposing party may seek the introduction of the remaining portions of the document only to the extent it concerns the same subject or further explains the portions already admitted. See Fed. R. Evid. 106. See also Warren v. United States 515 A.2d 208, (D.C. 1986) (affirming decision to exclude portions of defendant's letters which explained the defendant's frame of mind as irrelevant to the confession and admissions that were contained in the letter). In United States v. Corrigan 168 F.2d 641 (2d Cir. 1948), the Second Circuit discussed the interplay between "opening the door" and the rule of completeness:

The doctrine of 'opening the door' is an application of the 'principle of completeness;' that is, if one party to litigation puts in evidence part of a document, or a correspondence or a conversation, which is detrimental to the opposing party, the latter may introduce the balance of the document , correspondence or conversation in order to explain or rebut the adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary. Corrigan. 168 F.2d at 645. However, it is hornbook law that there is a limitation on the opposing party's right to refer to other parts of the document: "[W]here the remainder [of the document is incompetent, not merely as to form as in the case of secondary evidence or hearsay, but because of its prejudicial character then the trial judge should exclude it if he finds that the danger of prejudice outweighs the explanatory value." McCormick, Law of Evidence, §56 at 130-31 (2d ed. 1972).

Assuming that the Mayor had entered the news articles into evidence (which he did not), the Board was not permitted to give them any weight beyond the purpose for which they were offered. It is undisputed that the Mayor raised the news articles - and the associated radio program tape to which the articles referred - for the limited purpose of identifying potential bias by the Chairman arising from the fact that he was speaking to the media before adjudicating the ease. July 22 Tr. at 30-81. The Board looked beyond that limited purpose to just the type of inadmissible hearsay which the rule prohibits, in attributing to the Bishops an "admission" of alleged improper conduct. Based on this "evidence," the Board discarded the signatures on every petition page which the Bishops circulated, in derogation of the statutory and regulatory presumption that completed affidavits and the petition sheets to which they are attached are valid.

C. Improper inferences - Fifth Amendment and absent witness

The Board states that "[t]here is nothing in [its] order or in the record which indicates that the Board drew any inferences at all from the Bishop's exercise of the [Fifth Amendment] privilege. Board Br. at 20. Yet, earlier in its brief, the Board asserts that every affidavit on every petition sheet signed by one of the Bishops as circulator should be voided because they were unavailable for cross-examination due to their invocation of the Fifth Amendment or their unavailability at the hearing. Board Br. at 15. That is not just an "inference"; it created an irrebutable presumption against the Mayor. Notwithstanding the internal inconsistencies in the Board's position and as set forth in the Petition for Review, the Mayor should not be prejudiced because Scott A. Bishop and Scott Bishop Jr. invoked their Constitutional rights.

The Board contends that all of the petition sheets purportedly circulated by the Bishops should be discarded because the circulator's affidavits were unreliable. As grounds for this proposition, the Board relies on the decisions in In re John Edmond, 934 F.2d 1304 (4th Cir. 1991) and In re Vitamins Trust Litigation 120 F.Supp.2d 58 (D.D.C. 2000). The Board's reliance on these decisions is misplaced.

In Edmond, plaintiff-debtor offered his affidavit in support of a motion to dismiss/motion for summary judgment but invoked his Fifth Amendment privilege to avoid being questioned about that affidavit in deposition. The Fourth Circuit held that the privilege against self-incrimination cannot be used by a party as a shield to oppose the deposition and struck the affidavit. Id. at 1308-09. Similarly, the court in In re Vitamins, struck the defendant's affidavit which accompanied a motion to dismiss for lack of personal jurisdiction in an antitrust action because the defendant asserted a Fifth Amendment right against self-incrimination. The Court reached that remedy to ensure that there was no distortion to the record caused by the unrebutted affidavit.

These decisions are inapposite. Unlike the circumstances in those eases, the Bishops are not parties to this action. If, as the Board suggests, there is some deficiency with respect to their affidavits, the Council has fashioned a remedy to address that problem (i.e., criminal prosecution). The drastic remedy reached by the Board here, however, punishes the candidate and thousands of now disenfranchised voters who, everyone agrees, actually signed the nominating petitions on documents actually signed by circulators. Such a remedy is not authorized by law.

But even assuming that an adverse inference could be drawn against the Mayor because Scott A. Bishop or Scott Bishop Jr. asserted his Constitutional rights, that inference could not possibly be stretched to affect the work of Crystal Bishop. Ms. Bishop was physically in attendance at the January 24 hearings and was not called. Thereafter, she was in the hospital. She did not refuse to testify and the Board did not adjourn to take her testimony elsewhere. There is no reasonable inference to be drawn from the fact that she did not attend. Accord v. District of Columbia Board of Elections and Ethics. 688 A.2d 489, 498 n. 15 (D.C. 1995) (agreeing that it was reasonable for the Board "not to accord any weight" to the fact that the challenged voters did not attend the hearing). Yet because her last name is "Bishop" the Board concluded that all of her circulator affidavits were inherently unreliable, The Board's conclusion was both unfair and unsupported.

In other contexts, the Court has recognized the presumptive validity of affidavits and has required that challenges to affidavits be by clear evidence. For example, a party seeking to challenge the accuracy of a process server affidavit is required to present "strong and convincing evidence" that she was not served. See Fireman's Ins. Co. v. Belts, 455 A.2d 908, 909 (D.C. 1983). A party cannot overcome the presumption of truth that attaches to the process server affidavit simply by denying receipt of the documents: there must be clear evidence of a specific and significant discrepancy involving the statements in the affidavit. See Venison v. Robinson. 756 A.2d 906, 910-11 (D.C.2000).

Here, by contrast, there was no specific or significant challenge to the authenticity of the signatures of the Bishops on the sheets upon which the Mayor relied. The challengers did not present evidence that the statements contained in the circulators' affidavits for those pages were false (indeed, as stated above, that was not an issue in the challenge.) Far from demonstrating "strong and convincing evidence" to overcome a presumption of truth, the record shows an absence of any evidence sufficient to discard the signatures of all voters on petition sheets signed by the Bishops.

Finally, the Board suggests that the parties could have continued with the challenge once the Board excluded all of the signatures associated with the Bishop family and held that the Mayor's name would not be on the ballot. Board Br. at 21. The suggestion is absurd. To have proceeded in that way would have been like the defendant asking to present additional evidence after the court enters judgment for the plaintiff. More significant, the evidence presented by the Registrar that there were 2235 valid signatures resolved the issue raised by the challenge. The Mayor had no need to present additional factual evidence regarding the signatures. It was the Board's erroneous ruling which ignored the only legal result possible.

IV. Conclusion

The Board of Elections' decision was fundamentally wrong as a matter of election law and as a matter of administrative law. The Board's decision did not rest on clear evidence undercutting the validity of the more than 2000 Democrats who want Anthony Williams on the ballot next month. The decision does not reflect findings of fact grounded in substantial evidence nor does it reflect the proper application of recognized statutory election procedures.

As the Board recognized and as the Mayor agrees, there is a time and place to deal with individuals who submit false statements. But penalizing the voters and penalizing the Mayor - whom the Board acknowledged did not encourage or direct anyone to fail to comply with the law or regulations - is not the lawful answer.

The Mayor respectfully requests that the Court reverse the decision of the Board and restore him to the ballot.

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

Douglas J. Patton, Bar No. 233841
Paul S. Kiernan, Bar No. 385627
Damien O. 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

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