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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 02-AA-854
Anthony A. Williams, Petitioner, v.
District of Columbia Board of Elections and Ethics, Respondent.
Dorothy A. Brizill, Shaun Snyder, Gary Imhoff, and Mark Sibley,
Intervenors.
On Petition for Review of a Decision of the District of
Columbia Board of Elections and Ethics
(Argued August 6, 2002, Decided August 7, 2002)
Vincent Mark J. Policy, with whom Douglas J. Patton, Paul J.
Kiernan, and Damien G. Stewart were on the brief, for
petitioner.
Kenneth J. McGhie, with whom Terri D. Stroud and Rudolph
McGann were on the brief, for respondent.
Ronald L. Drake for intervenors.
Before Farrell, Reid, and Washington, Associate Judges.
Per Curiam: Anthony Williams, the Mayor of the District of Columbia,
petitions for review of a decision of the District of Columbia Board of
Elections and Ethics (the Board) denying him a place on the ballot for the
Democratic mayoral primary election scheduled for September 10, 2002.1
The Mayor's principal argument before us is that the Board exceeded its
authority in categorically excluding the signatures contained on
nominating petitions allegedly circulated by three individuals, Scott
Bishop, Sr., Scott Bishop, Jr., and Crystal Bishop. The Board's
disallowance of these signatures left Mayor Williams considerably below
the 2000 signatures required for ballot access. See D.C. Code §
1-1001.08 (i)(1)(B) (2002). The Mayor contends that the Board failed to
"engage in the signature-by-signature review that would be necessary
to sustain any challenge" to the signatures he offered (Br. for Pet.
at 15), instead eliminating an entire class of signatures based upon
suppositions of fraud and forgery in the circulation process, especially
by the Bishops.
We conclude that there is ample factual and legal support for the
Board's decision to disregard all of the signatures attributable to the
Bishop petitions. The Board determined that there had been
"widespread obstruction and pollution of the nominating process as it
pertains to nominating petition sheets circulated by the Bishops." In
support of this conclusion, it explained that the Mayor had not even
attempted to defend 214 of the 512 petition pages submitted in his
petition, with 167 (or 78%) of the 214 attributable to the Bishops. Among
that total of approximately 4,240 signatures, the Board found that many
had been forged (the questionable pages, the Board said, were
"replete with forgeries"), and the Board additionally had grave
concerns about the veracity of circulator affidavits signed by the Bishops
that accompanied their petitions.2 Those
concerns were not allayed, moreover, when each of the Bishops, subpoenaed
to answer questions about his or her role in the petition process,
categorically refused to answer questions by asserting their Fifth
Amendment privilege. The Board thus was unable, in its words, "to
ascertain whether the [Bishop] circulators personally circulated
petitions, or personally witnessed each person actually sign the
petition," all as required by the election statute. Although the
Registrar of Voters' "preliminary review" of the petition sheets
submitted by the Mayor had yielded a total of 2,235 presumptively valid
signatures, she likewise was unable to determine the veracity of the
affidavits related to the Bishop petitions. Accordingly, the Board still
was unable to determine "whether any of the signatures on the
petition sheets from the Bishops were in fact genuine and properly
obtained without undue influence or fraud."3
This court "must accept the Board's findings of fact so long as
they are supported by substantial evidence on the record as a whole."
Allen v. District of Columbia Bd. of Elections & Ethics, 663
A.2d 489, 495 (D.C. 1995). "Insofar as the Board's legal conclusions
are concerned, we must defer to its interpretation of the statute which it
administers . . . so long as that interpretation is not plainly
wrong or inconsistent with the legislative purpose." Id. In
the circumstances of this case, where the Board found, with the support of
substantial evidence in the record, that the integrity of the nominating
process has been seriously compromised by the actions of the Bishop
circulators, we hold that it was within the Board's authority to disallow
all of the signatures affected by the wrongdoing. As the Board recognized,
the circulator's role in gathering signatures for a nominating petition is
critical to ensuring the integrity of the collection process. In the case
of candidate nomination for access to the ballot in a primary election,
the circulator is responsible for collecting the genuine signatures of
duly registered voters within the candidate's party. Indeed, with respect
to nominating petitions, the circulator performs functionally the same
role the Board itself fills in verifying signatures on an initiative or
referendum petition. See D.C. Code § 1-1001.16 (o)(3).
Accordingly, D.C. Code § 1-1001.08 (b)(3) provides that each
nominating 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 . . . .
Underscoring the importance of this affidavit is D.C. Code § 1-1001.08
(o)(1), which provides that, subject to the results of any challenge after
posting of the petition, "[t]he Board is authorized to accept any
nominating petition for a candidate . . . as bona fide with
respect to the qualifications of the signatures thereto." A genuine
and complete affidavit, then, undergirds the presumptive validity of voter
signatures on a petition. Not surprisingly, therefore, a Board regulation
declares that "[s]ignatures appearing on nominating petition sheets
shall not be counted as valid unless all required information is provided
by the circulator in his or her signed affidavit." 3 DCMR § 1600.6
(2002).
The upshot is that the presumption of validity of petition signatures
depends heavily on the role of the circulator and on the truthfulness and
completeness of the representations made in the circulator's affidavit.
But in this case, as we have seen, the Board had firm grounds to doubt the
veracity of the sworn representations by the Bishops as to the genuineness
of the signatures they submitted, including — ultimately — their total
refusal to be questioned about their conduct in the circulation process.
The result, it may be said, was as if the affidavits had not furnished any
of the information required by D.C. Code § 1- 1001.08 (b)(3), thus
authorizing the Board to discount the accompanying signatures. 3 DCMR
§ 1600.6.
In circumstances similar to these, other courts have regularly
concluded that nominating petitions tainted by fraud or the strong
appearance of fraud may be discounted in their entirety by an elections
board. In Brousseau v. Fitzgerald, 675 P.2d 713 (Ariz. 1984), for
example, the Supreme Court of Arizona enjoined the placing of a mayoral
candidate's name on the ballot in light of evidence of fraudulent conduct
by circulators, despite the fact that the county recorder had certified a
minimally sufficient number of signatures as those of properly registered
voters. The court reasoned:
Defects either in circulation or signatures deal with matters of form
and procedure, but the filing of a false affidavit by a circulator is a
much more serious matter involving more than a technicality. The
legislature has sought to protect the process by providing for some
safeguards in the way nomination signatures are obtained and verified.
Fraud in the certification destroys the safeguards unless there are strong
sanctions for such conduct such as voiding of petitions with false
certifications.
Id. at 715. After reviewing similar decisions from Ohio,
Illinois, Pennsylvania, New York and New Jersey,4
the Arizona court concluded that the only way to protect the integrity of
the nominating process was to void petitions containing false
certifications by circulators and bar any signatures on those petitions
from being "considered in determining the sufficiency of the number
of signatures to qualify for placement on the ballot." Id. at
716.
Petitioner appears to regard this body of law as irrelevant because the
petition sheets that the Board found to be, among other things,
"replete with forgeries" were not petitions the Mayor
relied on to support his nomination. Thus, petitioner asserts that
"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" (Reply Br.
of Pet. at 10) (emphasis added). We reject the implication in this
argument that the Bishops' conduct in its entirety was not relevant
to the Board's deciding whether sworn assertions accompanying any
of their petitions could be credited. As the Board properly found, "[t]he
Bishops' nominating petition sheets predominate Mr. Williams's nominating
petition submission," and as to a sizeable number of the signature
sheets the Bishops compiled overall, "[t]he attendant circumstances
in the record controverted each material aspect of the [included]
affidavit." Beyond this was the fact that "Scott Bishop, Sr.
coordinated the petition process" generally. Thus, the obvious
falsity of signatures in many of the Bishop petition sheets was properly
considered by the Board in judging the veracity of all the affidavits they
submitted. Cf. 2 J. Wigmore, Evidence § 278, at 133 (Chadbourn ed.
1979) ("The inference [properly drawn from fabrication of evidence]
does not necessarily apply to any specific fact in the cause, but
operates, indefinitely though strongly, against the whole mass of alleged
facts constituting [a party's] cause.") (quoted in Mills
v. United States, 599 A.2d 775, 783-84 (D.C. 1991)).5
We similarly reject the Mayor's argument that, because the electoral
statute specifies criminal misdemeanor penalties for willful misconduct by
a petition circulator, impropriety by the Bishops can be dealt with only
in that forum and could not be considered by the Board in deciding whether
to accept individual signatures they had collected and which the Mayor was
offering. See D.C. Code § 1-1001.08 (b)(4). Evidence of fraud by
circulators related directly to the Board's duty to resolve challenges to
the nominating petition.
In sum, on the record before it the Board acted within its proper
authority by disallowing all of the signatures attributable to the
Bishops. Cases cited by the Mayor admonishing caution in remedying
violations of electoral rules, lest the effect be to disenfranchise
legitimate voters, are beside the point in a case such as this where the
Board had substantial evidence in the record supporting its conclusion
that the integrity of the nominating process had been undermined by
forgeries and possible fraud.6
Petitioner's remaining contention is essentially a procedural one. He
contends that he was surprised by the Board's decision which focused on
misconduct by circulators, because "the sole basis announced for the
Board's decision now was expressly not an issue at the
hearing" (Reply Br. of Pet. at 1). Our review of the record, however,
leads us to a contrary conclusion. Challenges filed by Mark Sibley and
Shaun Snyder clearly implied that the petitions submitted by the Bishops
contained forgeries or, at best, were not personally circulated by them.
Challenger Brizill also questioned the validity of the circulator
affidavit of Mr. Bishop, Sr., by asserting that he did not live at the
address listed for him on the Board's voter registration rolls. Both
challenges asked the Board to throw out all of the petitions attributable
to any of the Bishops. The Mayor was further put on notice that the
allegations of circulator fraud would be part of the Board's consideration
of the petition challenges at the Board's Pre-Hearing Conference. Over
objections by the Mayor's counsel, the Board's general counsel informed
the parties that the Board was interested not only in the validity of the
signatures on the petitions, but in the manner by which those signatures
had been obtained, and that it was his belief that "the circulator
issue is going to make or break what goes on [at the hearing]."
Even if we assume the Mayor's campaign was not on notice by the end of
the pre- hearing conference that the issues before the Board included
allegations of circulator fraud, the questions directed to the circulators
who did appear at the hearing had to have put the Mayor on notice of the
Board's concerns.7 Moreover, campaign managers
for the Mayor were questioned about the Bishops' activities in certifying
the validity of the nominating petitions. In light of these circumstances,
we are unpersuaded by petitioner's argument that he was unaware that the
Board was considering — and would resolve — allegations of fraud in
the nominating process.
For the reasons stated, we affirm the order of the Board of Elections
and Ethics under review.
So ordered.
1. The Board was established by the District of
Columbia Charter as an independent agency. See District of Columbia
Self-Government and Governmental Reorganization Act, § 491, Pub. L. No.
93-198, 87 Stat. 774, 809 (1973) (codified at D.C. Code § 1-1001.03). The
Board has both regulatory and investigative powers over the conduct of
elections in the District of Columbia. See D.C. Code § 1-1001.05.
2. Even a cursory examination of petition sheets
contained in the record reveals signatures casting doubt on the validity
and accuracy of affidavits signed by the Mayor's circulators, especially
Scott Bishop, Jr., and Crystal Bishop, swearing to the validity of those
signatures. Among the purported signatures are those of actors, television
(or cartoon) characters, politicians, and sports figures — including
Robert De Niro, Wing Woo, Kelsey Grammer, Carroll O'Connor, Dudley Moore,
Rosa Parks, George W., Tony Blair, Jack Kemp, Donald Rumsfeld, Kofi Annan,
Martha Stewart, Stanley Marsh, George Allen, Brian Cox, Terre(a)nce Allen
(listed twice), Ray Lewis, Joe Smith, and Reggie Lewis, to name just some.
Also included are "Jahovas Witness" and "Saint Paul
I." Moreover, countless petitions signed by Scott Bishop, Jr., and
Crystal Bishop appear to list names of petitioners in the same handwriting
and bear signatures apparently made by the same person. At times, no
address appears after the petitioner's name, and occasionally the same
name and address appear twice on the petition. One challenger alleged,
without contradiction on the point, that Scott Bishop, Jr. had purportedly
collected an improbable 540 signatures in one 24-hour period (i.e.,
one approximately every two minutes), implying that he had either forged
some of the signatures or not personally circulated the petition. Other
petition pages signed by Scott Bishop, Sr., contained the non-existent
date of June 31.
3. The Board took pains to note that "it [was]
aware of no evidence that the Mayor personally encouraged or directed any
circulators or other persons . . . to fail to comply with the
requirements set out by our laws and regulations."
4. The court summarized these decisions as follows:
In Weisberger v. Cohen, 22 N.Y.S.2d 1011, 1012 (Sup. Ct.), aff'd,
260 App. Div. 392, 22 N.Y.S.2d 835 (1940), the New York court held that
"[t]he surest way to keep [the petitions] free from fraud is to let
it be known that any taint of fraud will wholly invalidate them
. . . ." See also In Matter of Lombardi v. State
Board of Elections, 54 A.D.2d 532, 386 N.Y.S.2d 718 (3rd Dept.,
1976) (court invalidates two entire sheets of signatures when they were
"permeated with fraud"); Application of Lebowitz, 32
Misc. 2d 8, 221 N.Y.S.2d 703 (Sup. Ct. 1961) (candidate should not
derive any benefit from petition with fraudulent circulation
verification committed by supporters). The New Jersey Superior Court, in
McCaskey v. Kirchoff, 56 N.J. Super. 178, 152 A.2d 140 (1959),
noting that a court should not sit as "a bookkeeper rather than a
justice, to apply a rule of arithmetic rather than a principle of
equity," (quoting Abrahams, New York Election Law, 123
(1950)) invalidated entire nomination petitions where those seeking
nominations themselves irregularly certified petitions which included
forged signatures. Cf. Lawson v. Davis, 116 N.J. Super. 487, 282
A.2d 784 (App. Div. 1971) (where verifications were made carelessly but
not fraudulently there was no need to strike the petition when the
election clerk independently checked the signatures). 675 P.2d at
715-16.
5. We do not consider the propriety of the Board's
reliance on newspaper and other media articles that chronicled the
irregularities in the petition circulating process, as that reliance was
ultimately not prejudicial. See D.C. Code § 11-721 (e) (2002).
6. See Dankman v. District of Columbia Bd. of
Elections & Ethics, 443 A.2d 507 (D.C. 1981) (en banc); Harvey
v. District of Columbia Bd. of Elections & Ethics, 581 A.2d 757
(D.C. 1990). See also Buckley v. American Constitutional Law Found.,
525 U.S. 182, 191 n.10 (1999) (invalidating provisions of state electoral
law on First Amendment grounds but not questioning lower court's
validation of affidavit requirement designed to "'ensure that
circulators . . . exercise special care to present mistake,
fraud, or abuse in the process of obtaining . . . signatures of
only registered electors . . . .'"). Judge Ferren's
opinion in Dankman, cited by the Mayor at oral argument, was
careful to point out that the Board had rejected assertions of deceptive
or misleading conduct by the circulators. See 443 A.2d at 519.
7. All of the circulators who testified at the
formal hearing in this case were questioned about the validity of the
signatures appearing on their affidavits, and both Ms. Lewis and Mr. Wilds
testified under oath that several of the petition pages attributed to them
were not signed by them. One of the circulators, Ms. Alston, testified
that signers' names were added to her petition after she turned the sheets
into the Williams campaign. |