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DC Court of Appeals
Order remanding decision to Board of Elections and Ethics for clarification
September 13, 2004




Dorothy Brizill
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No. 04-AA-957

Citizens Committee for the D.C. Video Lottery Terminal Initiative, Petitioner,
District of Columbia Board of Elections and Ethics, Respondent.
Ronald L. Drake, et al., Intervenors.

Petition for Review of a Decision of the District of Columbia Board of Elections and Ethics
(Filed September 13, 2004)

Before Farrell and Ruiz, Associate Judges, and Newman, Senior Judge.


Before the court is a petition for review challenging the decision of the District of Columbia Board of Elections and Ethics (the Board) which rejected proposed Initiative Measure No. 68, entitled "The District of Columbia Video Lottery Terminal Initiative of 2004," on the ground that irregularities in the petition circulation process so "polluted" the signature-gathering operation conducted by a subcontractor, Stars and Stripes, Inc. (Stars and Stripes), as to require invalidation of all petition sheets and signatures gathered by Stars and Stripes. After exclusion of those signatures, only 14,687 apparent verified signatures remained in support of the proposed Initiative, which is below the number of 17,599 voter registrants citywide needed to place the measure on the election ballot. The Board therefore declined to certify the Initiative for submission to the electorate. We remand the record to the Board for the reasons stated in this order.


The Board rejected the petition sheets and signatures attributable to the Stars and Stripes operation after finding essentially two distinct classes of wrongdoing by Stars and Stripes circulators. The first, which may be called "false signing" irregularities, concerned the affidavit requirement of D.C. Code § 1-1001.16 (h) (2001), which requires an initiative petition circulator to certify under penalty of perjury that, among other things, he or she is a District of Columbia resident who "was in the presence of each person [signing a petition sheet] when the appended signature was written" and that, "according to the best information available to the circulator, each signature is the genuine signature of the person it purports to be." Id. § 1-1001.16 (h)(3) & (4). The Board credited testimony, detailed at pages 28-36 of its written Memorandum Opinion and Order, of six individuals who "on the instruction and/or knowledge of individuals associated with the petition circulation companies, . . . completed the circulator’s affidavit of certification for petition sheets which had been circulated by other individuals while out of their presence." This testimony also implicated other circulators in similar wrongdoing, and additional testimony established instances of forgery of circulator names on petition affidavits, as well as forgery of the names of petition signers.

The second class of irregularities, which may be called "false advertising," concerns the regulation of the Board, 3 DCMR § 1003.6, that requires a circulator to swear that he or she "has not made any false statements regarding the initiative . . . to anyone whose signature is appended to the petition." The Board found that language on a T-shirt worn by circulators ("Sign Up! For Jobs, Education & Healthcare") and oral communications to the same effect by circulators, "were designed to induce potential signers to sign the petition based on the representation that the initiative would produce benefits for [District of Columbia] schools and healthcare." But because "Initiative Measure No. 68 did not — and could not — make any such promise or guarantee," the representations made to potential signers both orally and via the T-shirts "constituted misrepresentations of Initiative Measure No. 68, and were therefore in violation of the attestation in the circulators affidavit that prohibits the making of false statements regarding the Initiative."

After describing these improprieties, the Board summarized its findings as follows:

The testimonial and other evidence revealed substantial irregularities in the petition circulation process [conducted by Stars and Stripes], the cumulative effect of which was to extend the impact of the improprieties beyond the individual examples of wrongdoing to a general pollution of the process that casts doubt on the validity of the signatures gathered during the petition drive. The evidence of circulator affidavits being signed by individuals who did not circulate the petition sheets, forgeries of circulator affidavits and petition sheets, and false advertising of the Initiative placed the veracity of the affidavits in doubt. The individual instances of wrongdoing were significant by themselves. These problems, however, were compounded by the false advertising of the Initiative to which potential signers were exposed and the taint to the process caused by the attendant far-reaching implications of that public exposure.


In this court, petitioner has challenged the evidentiary basis for the Board’s findings as to both classes of wrongdoing, the "false signing" and the "false advertising." It has also challenged the Board’s remedy of exclusion of all of the petition signatures attributed to the Stars and Stripes circulators. The court has concluded, however, that resolution of these issues at this point is premature, and that a remand of the record is necessary for the Board to clarify the basis for its decision.


Specifically, petitioner (joined by amicus curiae) has advanced what the court believes to be significant First Amendment arguments against the Board’s invalidation of petition signatures on the ground of false advertising by circulators, either orally or by the T-shirts they wore. See generally Meyer v. Grant, 486 U.S. 414, 420, 421-22 (1988) ("[T]he circulation of [an initiative] petition involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech,’" and as to which state-imposed limitations are "subject to exacting scrutiny."); Brown v. Hartlage, 456 U.S. 45, 61 (1982) ("The chilling effect of . . . absolute accountability for factual misstatements in the course of political debate is incompatible with the atmosphere of free discussion contemplated by the First Amendment in the context of political campaigns."). See also Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999). The Board’s brief disagrees, and argues that these issues have been waived, but in addition argues that it is unnecessary for the court to reach the First Amendment issues because "the other violations" — what we have called the "false signing" improprieties — "can, and do, stand on their own, independently of the false statement issue, and provide more than ample support for the Board’s conclusion" (Board Reply Br. at 3-4); see also id. at 10 ("[T]he Board’s decision can be affirmed even independently of the false statement findings.").

We conclude that the court’s review will be facilitated by a clear statement of the Board itself of (1) whether or not it intends its decision invalidating the Stars and Stripes petitions to rest "independently" on either class of improprieties found, in particular on the false signings, and (2) if so, the reasons why. The Board’s Memorandum Opinion and Order alone, including the conclusion quoted above, does not permit us to answer that question satisfactorily. Nor does the Board’s supplemental filing made after oral argument. In that document, counsel for the Board argues that "there is substantial evidence in the record to support the position that the Board would have reached the same conclusion . . . in the absence of its finding[s] regarding false statements" (emphasis added). That does not answer the question of whether the Board in fact would reach the same conclusion without regard to those findings, an issue the court believes may be important to resolving the challenges to the Board’s decision now before us. Further, assuming the Board answers the first question affirmatively, it may wish to offer additional explanation of why it believes exclusion of signatures gathered by particular Stars and Stripes circulators, or sub-classes of such circulators, in addition to those who testified or were named in testimony before the Board, is warranted.

We therefore remand the record to the Board for consideration, on an expedited basis, of the questions we have posed. Although time has become of the essence in this case, as so often when the issue is placement of a matter on the electoral ballot, the interest of justice will be furthered by the intermediate step we order. See D.C. Code § 17-306 (2001); see generally Securities & Exchange Comm'n v. Chenery, 318 U.S. 80, 94-95 (1943).

So ordered.

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