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DC Board of Elections and Ethics 
Supplemental submission to DC Court of Appeals on Initiative 68
September 10, 2004




Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars


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RONALD L. DRAKE, et al., Intervenors.

Re: Petition for Review of Board Decision Denying Ballot Access to Initiative Measure No. 68


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.

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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.

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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

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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


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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