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DISTRICT OF COLUMBIA COURT OF APPEALS
CITIZENS COMMITTEE FOR D.C. VIDEO LOTTERY TERMINAL INITIATIVE,
Petitioner,
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent,
and
RONALD L. DRAKE, et al., Intervenors.
Re: Petition for Review of Board
Decision Denying
Ballot Access to Initiative Measure
No. 68
RESPONDENT DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS' SUPPLEMENTAL FILING
At the close of the September 8, 2004, oral argument in
this matter, this Court invited the parties to submit supplemental
filings responding to particular queries made by members of the panel.
The Board now respectfully submits this supplemental filing in which it
responds to this Court's queries regarding: 1) the impact of ignoring
the Board's false statement finding on the Board's ultimate conclusion;1 2) whether there is substantial evidence in the record to
support the position that Board's remedy was narrowly tailored; and 3)
the numerical breakdown that corresponds to the petition sheets
rejected.
I. Query: Whether there is substantial evidence in the
record to support the position that the Board would have reached the
same conclusion regarding the pollution of the process and the necessity
to strike petition sheets collected not only by the individual
witnesses, by the Stars and Stripes organization, in the absence of its
finding regarding false statements?
Relevant Excerpts from Board's Ruling (excluding
consideration of false statement issue):
- "The Board concluded that the evidence of
irregularities that polluted the Red Roof Inn operation-which were most
apparent and concentrated in the Stars and Stripes operation-remained
essentially unrebutted by the Proponents, and compelled the rejection of
the signatures collected by that organization." BOEE Ex. 69 at 3.
- "The flaws in the process, which bore on the
validity of the signatures collected, were significant when considered
individually, and monumental when considered collectively. ... These
flaws included: 1) the use of so-called `assistants' who were
non-residents of the District of Columbia, but who actually performed
the petition circulating responsibilities statutorily prescribed for
D.C. residents; (2) Q the falsification of the circulator's affidavit by
D.C. residents at the urging of some of the non-residents brought into
the District of Columbia to `assist' with the petition drive; 3) forged
signatures of both signatories and circulators; (4) official training of
circulators by non-residents who were uninformed about the District's
election laws ... (6) the haphazard and uncoordinated recruitment of
D.C. residents by non-residents circulators to act as purported
witnesses to their signature gathering efforts-a practice that
undoubtedly contributed to the unreliability of the circulator's
affidavits and the Board's inability to subpoena several witnesses; and
7) an overall lack of oversight of the activities in the field by
managers who appeared far removed from the details of the collection
effort." BOEE Ex. 69 at 2-3.
- "The testimonial and other evidence revealed
substantial irregularities in the petition circulation process at the
Red Roof Inn, 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 individual
instances of wrongdoing were significant by themselves. These problems,
however, were compounded by [the false advertisement issue]."
"The problems were further compounded by the
existence of an operation at the Red Roof Inn that was managed - from
the top - in a manner that created an environment that was fraught with
opportunities for abuse of the process, system and laws; an environment
that would encourage, on a systemic basis, the kinds of violations about
which there was testimony. This was confirmed by the fact that
individual witnesses who testified about their own violations of law
mentioned that others were engaging in similar conduct. And finally, all
of this occurred in a highly charged context with more than ample
incentive (e.g., time constraints, meeting of quotas, quick money, etc.)
for individuals to skirt the rules. In short, serious violations of law
that cast doubt on the validity of the signatures gathered permeated and polluted the petition drive operation
conducted from the Red Roof Inn." BOEE Ex. 69 at 50-51 (emphasis
added).2
- References to characteristics of the petition drive
process that fostered systemic problems-an environment that was
"ripe for the types of improprieties and irregularities that
occurred." BOEE Ex. 69 at 45.
- Recruitment
- Unsupervised recruitment of individuals from off of the
streets provided fertile ground for the types of irregularities
identified in the recruitment of Gerst, Farrell and Jackson. BOEE Ex. 69
at 28, 46.
- "[U]nstructured and undisciplined recruitment
practice ...undoubtedly contributed ... to the problem which the Board
faced in trying to locate circulators for purposes of serving
subpoenas." BOEE Ex. 69 at 46-47, 47 at n.45 (referencing total
number of circulators Board was unable to subpoena (53) and number
associated with non-existent addresses or abandoned premises (9)).
- Apparent indifference in the face of knowledge - as
exemplified by drafting of Clint Hyatt memorandum addressed to all
circulators -- of allegations of violations of "in the
presence" requirement. BOEE Ex. 69 at 47; BOEE Ex. 16.
- Managers not familiar with
activities in the field - BOEE Ex. 69 at 48.
- D.C. resident circulators were not required to
accompany non-residents when petition sheets were submitted to the
managers. BOEE Ex. 69 at 28; BOEE Ex. 6g at 352.
- Inadequate Training on D.C. law
regarding initiative petitions:
- Carl Towe viewed the circulator's affidavit as a
"legal technicality" on the bottom of a declaration. BOEE Ex.
69 at 45.
- Trainers Ross Williams and Clint Hyatt lacked familiarity
with D.C. laws regarding initiative petitions. BOEE Ex. 69 at 45-46.
- Training responsibilities sometimes left to non-resident
circulators. BOEE Ex. 69 at 28.
Supporting Factors
- "In the presence"
requirement described as "[a]t the core of the challengers'
allegations". BOEE Ex. 69 at 25-33.
Individual Witnesses (and others who were similarly
implicated): Danielle Campbell; Tenisha Colbert; Melissa Darnell; Angelo
Farrell; Evelyn Gerst; Antoine Jeffries; Shamika Mack; Antoinette
Pitter; Andre Rempson.3
Evidence supporting extrapolation from individual
witnesses to broader group based on testimony of witnesses and evidence
of systemic problem:
Tenisha Colbert's testimony that "everybody was
doing it [i.e., signing off on petition sheets circulated by
non-resident circulators even though they had not been in their
presence]." BOEE Ex. 69 at n.28; BOEE Ex.
6h. at 29.
Testimony that, in Stars and Stripes manager Mike
[Jones'] room, nonresidents would appear with signed petition sheets and
announce that they did not have a witness and be matched by Mr. Jones
with a D. C. resident for signing purposes. See BOEE Ex. 6i at 62; BOEE
Ex. 69 at 31.
Evidence that circulator affidavits had been altered to
conceal fact that nonresidents were unlawfully circulating petition
sheets. BOEE Ex. 69 at 20-21 a
John Capozzi's complaint indicating that professed
non-residents were circulating petition sheets in Southeast, D.C. BOEE
Ex. 3; BOEE Ex. 69 at 32.
- In response to allegations of petition circulation by
non-residents, Clint Hyatt prepared a memorandum for distribution that
was addressed to all circulators which reinforced the fact that
circulators must be D.C. residents. BOEE Ex. 16; BOEE Ex. 6c at 315; see
also BOEE Ex. 69 at 47.
- Assertion of Fifth Amendment Right
Against Self-Incrimination (BOEE Exh. 69 at 33-34)
Individual Witnesses: Tanica Hunter, Gwendolyn Squirewell
- Forgeries (BOEE Exh. 69 at 34-36)
Individual Witnesses: Forrest Jackson; Stephen Atkins;
Robert Price Evidence supporting extrapolation from individual witnesses
to broader group:
Andre Rempson testimony regarding copying names from
telephone book, coupled with testimony of Danielle Campbell and Melissa
Darnell regarding rumors of signing party. BOEE Exh. 69 at 35-36;
transcript . The Board concluded on the basis of this testimony that
"although there was insufficient evidence to determine how
widespread the phone-booksigning conduct might have been . . . at least
some of this conduct occurred." BOEE Exh. 69 at 36.
- Unavailability of Witnesses
Board was unable to serve 53 individuals, 9 of whom
listed non-existent addresses or abandoned premises on their circulator
affidavits -- associated with "haphazard and uncoordinated
recruitment" practice." BOEE Exh. 69 at 46-47, 47 at n.45.5
- Absence of Rebuttal Evidence from
the Petitioner (BOEE Ex. 69 at 48-50)
"In essence, the Proponents simply remained mum -
choosing not to even cross-examine some of the adverse witnesses - in
the face of indisputably troubling evidence of wrongdoing in the
operation at the Red Roof Inn." BOEE Ex. 69 at 49.
Back to top of page
II. Query: Whether there is substantial
evidence to support the Board's position that the Board's remedy was
narrowly tailored?
Consistent with this Court's earlier decisions in
Citizens Against Legalized Gambling v. BOEE, 501 F. Supp. 786 (D.D.C.
1980) and Dankman v. BOEE, 443 A.2d 507 (D.C. 1981) the Board construed
the law and evaluated the evidence presented "liberally" in
favor of the franchise.
In addition, to the Board's efforts to identify the
illegible names of circulators by "checking the voter roll by the
address on the petition" (BOEE Ex. 69 at 20), excusing missing
dates on the circulator affidavit where "there was indicia that the
signature were valid with respect to the date" (Id. at 23),
accepting an incomplete circulator's name where "the Board found
that the address and signature on the petition sheet in question matched
those found on other petition sheets circulated" by that individual
(Id. at 23), affirming the appropriateness of advertising brochures
during the circulating of petitions (Id. at 45) and the liberal
interpretation of the circulator's requirement as it relates to the use
of non-resident assistants (BOEE Ex. 6f at 194; BOEE Ex. 69 at 12), the
most significant evidence of the Board's effort to favor the
franchise, while balancing its obligations to ensure the integrity of
the process is evidenced by how the Board treaded lightly in determining
who was affiliated with Stars and Stripes.
- Approximately three hundred,
thirty-two (332) District residents circulated petitions for Initiative
68.
- Approximately eighty-six (86) circulators were
identified with the Committee, operating out of the law firm of Manatt,
Phelps & Phillips, LLP, leaving approximately two hundred, forty-six
(246) circulators.
- The testimony revealed that Stars
and Stripes was the predominant PCI subcontractor. (BOEE Ex. 69 at 26;
BOEE Ex. 6h at 309-310)
- From the documentation provided by
the Petitioner,6 the Board was able to identify seventy-nine7 (79) D.C. residents as working with
Stars and Stripes from the documentation provided.
- The Board was unable to determine
affiliation for approximately one hundred, seventy-two (172)
circulators.
- The Board excluded the signatures of
twenty-four percent (24%) of the total circulators and forty-three percent (43%) of the non-MPP
circulators.
Back to top of page
III. Query: What was the numerical breakdown that
corresponds to the petition sheets rejected by the board?
The Board represents that the total number of signatures
remaining after the voter registration verification, the conceded
sheets, the resolution of the Drake challenges 1-7 and the challenge to
petition sheets for Danielle Campbell, Tenisha Colbert, Melissa Darnell,
Evelyn Gerst, Antoine Jefferies, Shamika Mack, Antoinette Pitter, Andre
Rempson, Stephen Atkins, Angelo Farrell, Forrest Jackson, Tanica Hunter
and Gwendolyn Squirewell was nineteen thousand, five hundred and six
(19,506).
A) Extrapolation Based on Individual
Testimony and Evidence of Systemic Pollution
1) Properly Served and Failed to Appear8
Daryl Bowman, 294
James Knight, 4
Thomas Robinson, 112
Andre Smith, 8
Total Number of Verified Voters Stricken: 418
Total Number of Signatures Remaining: 19,088
2) Unable To Serve9
Larry Fisher, 19 (No Apt. Number)
Tyrone Hodges, 13 (Unable to gain access
into Bldg.)
Robert Howard*, 114 (Halfway House)
Antoine Walker, 198 (Abandoned Home)
* this individual is also subject to allegations of
forgery
Total Number of Verified Voters Stricken: 344
Total Number of Signatures Remaining: 18,744
3) Unable To Serve10
Reason for Challenge
Cynthia Allen, Petition Forgeries, 98
(Abandoned shelter)
Paul Belt, Affidavit Forgeries, 147
(No longer lives there)
Patricia Boggs, Affidavit Forgeries, 113
(No longer lives there)
Lionell Butler, Residency questioned, 205
(Church)
Doris Jean Clark, Affidavit Forgeries, 86
(No Apt. Number)
Alan Clipper, Residency questioned, 12
(Vacant house)
Rose Daniels, Affidavit & Petition
Forg., 230 (Unable to gain access)
Alvina Edwards, Residency questioned, 232
(No access to building)
Thomas Green, Petition Forgeries, 103
(Shelter)
Phillip Howard, Residency questioned, 8
(Unable to gain access)
Angela Jackson, Affidavit Forgeries, 165
(Shelter)
Stephen Jones, Affidavit Forgeries, 288
Annitta Riddick, Affidavit Forgeries, 10
Rickey Satterthwaite, Altered Affidavit, 76
Scott Smith, Affidavit Forg., 56
(Shelter)
Randolph Green, Petition Forgeries, 111
Latawrang Jumhariyah, Altered Affidavit, 72
(Shelter)
Donnell Sweat, Affidavit Forgery, 111
(No Apt. Number)
Sheila Washington, Affidavit Forgery, 40.
Gerald Williams, Affidavit Forgery, 28
Total Number of Verified Voters Stricken: 2,191
Total Number Of Signatures Remaining: 16,553
4) Other Stars and Stripes Individuals
Not Subpoenaed
Michael Alston 17
Anthony Braxton 18
Shaunita Brown 13
Carrie Bryson 10
Cheryl Chambers 15
Darius Clarke 32
John Costes 27
Jonathan Earnshaw 16
Howard Franklin 27
Kevin Hams 6
Gregory Hudson 23
Allen Jones 111
Bennie Lawson 7
Ernest Mckee 31
Sylvester Miller 2
Erika
Pereira 15
Kevin Charles Patrick 89
Christopher Peterson 14
Peggy Porter
37
Sheldon Quick 31
Ezekiel Raspberry 59
Ramona Ross 6
William Self 10
Steven Stroman 42
Charles Thornton 66
NiDasiriDa Vitashada 5
Alonzo
Williams 8
Arnita Williams 1
Arthur Williams 39
Harold Williamson 15
Clifton Wilson 7
Samuel Young 4
Ronald Bradley 46
James Chasia 6
Dorothy
Douglas 88
Barbara Hailes-Payne 35
Total Number of Verified Voters Stricken: 978
Total Number of Signatures Remaining: 15,575
5) Substantially Complied with "in the presence"
requirement
Bobbie Diggs 485
Margol Inabinet 405
Total Number of Verified Voters Stricken: 890
Total Number of Signatures Remaining: 14,685
B. Evidence of Pollution but Not
Excluded
1) False Certification of Resident Addresses11
Charles Massenburg 63
Rommel McBride 7
Clearness Shedrick 26
Hewitt Williams 34
Jade Beckett 84
Vanessa Afolayan 144
Steven Howell 83
Total Number of Signatures: 441
2) Altered Circulators Affidavit with
Stars and Stripes Affiliate but not Excluded
Hope Williams12 201
3) Unable to served, but not affiliated
with Stars and Stripes13
| # Pet. |
Reason for Challenge |
Reason for no
Service |
Sheets |
| Douglas Avery |
petition forgery |
(no apt. number) |
17 |
|
Michael Brown |
petition forgery |
(does not live there) |
17 |
| Oscar Brown |
altered affidavit |
(shelter) |
5 |
| Renee Brown |
false cert. of address |
(no
apt. number) |
6 |
| Teresa Buchanan |
affidavit forgery |
(mother wouldn't
accept) |
19 |
| Penta Burgess, Jr. |
false cert. of address |
(church/salvation
army) |
7 |
| Robert Coutee |
false cert. of address |
(out of town) |
1 |
| Desi
Gatling |
altered affidavit |
(no apt. number) |
7 |
| Cassandra Harris |
affidavit
forgery |
(shelter) |
50 |
| Darrell Hartley |
affidavit forgery |
(church) |
55 |
| James
Hawkins |
altered affidavit |
(shelter) |
10 |
| Jessie Ryan Jones |
affidavit
forgery |
(does not live there) |
50 |
| Michelle Lee |
petition forgery |
(no apt.
number) |
33 |
| Gregory Marsh |
affidavit forgery |
(no apt. number) |
12 |
| Arlene Ng |
petition forgery |
(no apt. number) |
32 |
| Kevin C. Pedrick |
affidavit forgery |
(no apt. number) |
21 |
| Gilbert Petty |
petition forgery |
(rehab center) |
3 |
| Dave
Rowell |
petition forgery |
(no apt. number) |
15 |
| Nicole Scott |
altered
affidavit |
(vacant home) |
10 |
| Gregory Sims |
affidavit forgery |
(does not live
there) |
6 |
| Deloris Smith |
affidavit forgery |
(does not live there) |
41 |
| Edward
Swails |
affidavit forgery |
(rehab center) |
66 |
| James Taylor |
affidavit
forgery |
(shelter) |
31 |
| Tracy Washington |
false cert. of address |
(shelter) |
47 |
| Anthony Wiggins |
affidavit forgery |
(no access to bldg.) |
19 |
| Montrell
Williams |
false cert. of address |
(church) |
19 |
| Terrence Wilson |
affidavit
forgery |
(shelter) |
6 |
Total Number of Petition Sheets: 605
Respectfully
Submitted,
Kenneth J. McGhie (Bar No. 385313)
D.C. Bd of Elections
and Ethics
One Judiciary Square
441 4th Street, N.W., Suite 270N
Washington D.C. 20001-2745
(202) 727-2194
Back to top of page
CERTIFICATE OF SERVICE
I hereby certify that on this 10th day of September,
2004, the foregoing Respondent's Supplemental Filing was served via
facsimile and hand delivery to the following parties:
Counsel for Petitioners
George Jones, Jr.
Sidley Austin Brown & Wood LLP
1501 K Street, N.W. 700
Washington D.C. 20005
John L. Ray
Manatt
Phelps & Philips LLP
12th Street
N.W. Suite 1100
Washington D.C.
20005-4075
Erik S. Jaffe
Law Office of Erik S. Jaffe. P.C.
5101 34th Street, N.W.
Washington D.C. 20008
Counsel for Amicus Curiae
Arthur B. Spitzer
American Civil Liberties Union of the National Capital Area
1400 20th Street, N.W. #119
Washington, D.C. 20036
Intervenors
Ronald L. Drake, Pro Se
5 P Street S.W.
Washington D.C. 20024
Reverend Dean L.
Snyder
DC Against Slots
333 A Street N.E.
Washington D.C. 20002
Dorothy Brizill
DC Watch
1327 Girard Street, N.W.
Washington D.C. 20009
1. The Board does not, of course, concede the false
statement issue. It continues to maintain, as previously argued, that
the message on the T-shirts and in Ross Williams' instructions were
"demonstrably false" in view of the history of this particular
initiative measure, and that there was a reckless disregard for the
truth or falsity of the statements. See Brown v. Hartlage, 456 U.S. 45
(1982); see also BOEE Exh. 69 at 36-43. However, this Supplement focuses
on the query as posed by the Court.
2. See also BOEE Exh. 67 at 22 ("[1]n addition to
[false statement issue], there were certain problems that the Board
discerned from the evidence with respect to the process as a whole that
appeared to be centered in the Red Roof Inn.")
3. While the Board found that Bobbie Diggs and Margol
Inabinet (2 of 8 circulator witnesses that testified from Stars and
Stripes) substantially complied with the "in the presence"
requirement, this conclusion did not negate the Board's concurrent
determination concerning the overall pollution of, and systemic
violations in, the broader operation.
4. A review of certain petition sheets challenged by Ron
Drake indicated that, in several instances, Stars and Stripes Manager
Ray Kingford's name was crossed out and replaced with the name of
purported D.C. resident Hope Williams.
5. While the Board did not specifically invoke the
"missing witness" rule, it nonetheless considered the
unavailability of witnesses in the context of the overall pollution of
the process. See BOEE Exh. 69 at 2-3.
6. The documents consisted of a large stack of batch
sheets, which are the cover sheets that would normally be appended to a
group of petition sheets. Batch sheets indicate which individual
circulated the petition, who the supervisor is, and the name of the
petition circulation company. The overwhelming majority of the batch
sheets provided by the Petitioner had only the name of the non-resident
circulator with no corresponding D.C. resident circulator. Therefore,
they could not be matched with the petition sheets that bore the names
of the D.C. resident circulators.
7. The August 5th report of the Executive Director (BOEE
Ex. 68) indicated that there were sixty-seven (67) instead of
seventy-nine (79) circulators associated with Stars and Stripes.
Seventy-four (74) were properly listed in the attachment. An additional
five Stars and Stripes circulators were incorrectly listed in the
nonaffiliated category. Those individuals were: Angelo Farrell, Randolph
Green, Donnell Sweat, Sheila Washington, and Gerald Williams. Because
these individuals were already included in the twenty-one thousand, two
hundred and seventy-nine (21,279) count, the ultimate number of excluded
signatures did not change.
8. These individuals were among those where there was
evidence of altered affidavits on other petition sheets, except for
Daryl Bowman, a resident of the home for the mentally disabled, and was
challenged based on his competency to circulate petitions.
9. These individuals were among those where there was
evidence of altered affidavits on other petition sheets.
10. All of these individuals were the subject of
allegations of wrongdoing by the challengers.
11. These are seven of the nine individuals who listed
non-existent premises or abandoned buildings as resident addresses. They
were not identifiable with Stars and Stripes and therefore did not fall
into the category of rejected signatures.
12. Hope Williams is purported to have signed petition
sheets originally signed by Ray Kingsford, a nonresident Stars and
Stripes circulator. These altered petition sheet that were conceded by
the Petitioners were 2889, 2507, 3191, 2145, 2159, 2822, 1449,. 1466,
3465, 3320, 3296, 3192. An additional 201 signatures, however were
attributable to Ms. Williams but not excluded.
13. All of these individuals were the subject of
allegations of wrongdoing.
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