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Citizens Committee for the D.C. Video Lottery Terminal Initiative
Letter to DC Court of Appeals on Initiative 68
September 19, 2004

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SIDLEY AUSTIN BROWN & WOOD LLP
1501 K STREET, N.W.
WASHINGTON, D.C. 20005
TELEPHONE 202 736 8000
FACSIMILE 202 736 8711
www.sidley.com

WRITER'S DIRECT NUMBER 
(202) 736-8158

WRITER'S E-MAIL ADDRESS
gjones@sidley.com

September 19, 2004
BY HAND

Garland Pinkston Jr., Clerk
District of Columbia Court of Appeals 
H. Carl Moultrie I Courthouse
500 Indiana Avenue, N.W., Sixth Floor 
Washington, D.C. 20001

Re: Citizens Committee for the D.C. Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics and Ronald L. Drake, et al., D.C. No. 04-AA-957

Dear Mr. Pinkston:

Enclosed for filing and circulation to the panel in the referenced expedited appeal is a letter addressing the failure of the Board of Elections and Ethics to respond in a timely manner to the questions posed in the Court's Order of September 13, 2004.

I would appreciate it if you would make sure the enclosed letter is circulated to the panel as promptly as possible on Monday morning.

GWJ:gwj

cc:   Kenneth J. McGhie (By telecopy)
Ronald L. Drake (By telecopy)
Dorothy Brizill/DCWatch (By electronic mail)
Carol Colbeth/DC Against Slots (By electronic mail) Arthur Spitzer (By electronic mail)

Very truly yours, 
George W. Jones, Jr.

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SIDLEY AUSTIN BROWN & WOOD LLP
1501 K STREET, N.W.
WASHINGTON, D.C. 20005
TELEPHONE 202 736 8000
FACSIMILE 202 736 8711
www.sidley.com

WRITER'S DIRECT NUMBER 
(202) 736-8158

WRITER'S E-MAIL ADDRESS
gjones@sidley.com

September 19, 2004
BY HAND

The Honorable Michael W. Farrell
The Honorable Vanessa Ruiz
The Honorable Theodore R. Newman, Jr. 
District of Columbia Court of Appeals 
500 Indiana Avenue, Sixth Floor 
Washington, D.C. 20001-2131

Re: Citizens Committee for the Video Lottery Terminal Initiative v. District of Columbia Board of Elections and Ethics, No. 04-AA-957

Dear Judges Farrell, Ruiz, and Newman:

This Court's Order of September 13, 2004 posed two simple questions for the Board of Elections and Ethics (the "Board"): "(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." Order at 5. The Court also directed the Board to consider these questions and respond to the Court "on an expedited basis." Id.

Nearly a full week after this Court's Order directing the Board to respond expeditiously, the Board is still searching in vain for an alternative basis for its initial flawed decision. There is, however, neither evidence nor a rationale to support the Board's decision to disregard all the signatures collected by Stars and Stripes circulators. Moreover, the data in the Board's September 10, 2004 Supplemental Filing to this Court show that Initiative 68 satisfies the signature requirements for placement on the November ballot. Nonetheless, despite numerous requests by Petitioner, the Board refuses to conduct random sampling to expedite ballot access if this Court ultimately reverses the Board's refusal to count the signatures collected by Stars and Stripes circulators.

The Board's refusal to respond to the Court's two questions expeditiously and its refusal to conduct random sampling threaten to frustrate effective judicial review. Allowing the Board's dilatoriness to prevent Initiative 68 from being placed on the November ballot would not only undermine this Court's role in reviewing the decisions of the Board, but also frustrate the will of the more than 21,000 registered voters of the District of Columbia who have expressed their view that Initiative 68 should be considered by the entire electorate in November, 2004.

The Board's counsel advised Petitioner's counsel that ballots for the November, 2004 election must go to the printer by September 28, 2004. Yet, despite the limited time available, the Board has rejected repeated suggestions from Petitioner's counsel that the Board follow the procedure it used in Dankman v. BOEE, 443 A.2d 507, 511 (D.C. 1981) and begin the random sampling procedure immediately, pending this Court's decision on the merits. If there is insufficient time to complete the random sample before September 28 because of the Board's delay, the Court should direct the Board to include Initiative 68 on the ballot it sends to the printer on September 28, subject to the outcome of the random sample completed thereafter. If the random sample confirms that 17,599 registered voters, with the required ward distribution, support placing Initiative 68 on the November ballot, no harm will have been done. If the random sample indicates that Initiative 68 does not satisfy the requirements for inclusion on the ballot, the Board can announce that result in advance of the election and disregard any votes that may be cast with respect to the Initiative in November.

Conditional inclusion on the ballot is especially appropriate in this case because the Board's September 10 Supplemental Filing in this Court demonstrates that the Board's initial decision cannot be sustained. Although buried in the middle of the supplemental filing, the Board confirmed that excluding MI the signatures of presumptively valid registered voters on petition sheets signed by the 13 Stars and Stripes circulators the Board individually rejected, Initiative 68 meets the signature requirements of the initiative statutes.1 The Board confirmed that its records show that the petition sheets from these 13 individuals account for only 1773 signatures of registered voters. See Board Supplemental Filing at 6. The total number of registered voters subject to the random sampling procedure is therefore at least 19,506 (21,2791773), well over the minimum requirement of 17,599.2 Thus, only because the Board also disregarded the signatures collected by Stars and Stripes circulators as to whom the Board had no evidence of wrongdoinq was the Board able to conclude that Initiative 68 failed to meet the statutory signature requirements.

The Board's Supplemental Filing includes additional data that confirm Initiative 68 satisfies the statutory requirements for inclusion on the November ballot. After exclusion of all the signatures collected by the Stars and Stripes circulators, the Board concluded that the proponents had submitted the signatures of only 14,687 registered voters. See A. Miller Memorandum to the Board at 5 (August 5, 2004) [Pet. App. at 36]. Adding the signatures as to which the Board's data show there is no plausible basis for exclusion, the number of signatures of registered voters increases to at least 18,529.3

The Board's Supplemental filing specifically identifies 1868 signatures as to which there is no conceivable rational basis for refusing to count them:

First, the Board's Supplemental Filing discloses that Bobbie Diggs and Margol Inabinet collected 890 signatures of registered voters. See Board Supplemental Filing at 9. Diggs and Inabinet testified before the Board, and the Board specifically found that both of them had complied with their responsibilities as circulators. See Board Decision at 29 n.28 [Pet. App. at 127 n.28]

Second, the Board's Supplemental Filing identifies 36 additional Stars and Stripes circulators who were not subpoenaed and as to whom there were no allegations - much less any evidence - of wrongdoing. See Board Supplemental Filing at 8-9. As to this group, there is no basis for refusing to count the 978 signatures of registered voters they collected.

No rationale the Board eventually may come up with can justify refusing to count the 1868 signatures collected by these specific 38 circulators based on evidence of wrongdoing by other Stars and Stripes circulators.

In addition, the Board's Supplemental Filing identifies 20 Stars and Stripes circulators it was "unable to serve," but who accounted for another 2191 signatures of registered voters. Board Supplemental Filing at 7-8. The Board does not suggest there was any "evidence" of wrongdoing by any of the 20, noting only that each of them was the "subject of allegations of wrongdoing by the challengers." Id. at 7 n.10. The Board's opinion correctly did not rely on the failure to serve subpoenas on any of these circulators as a basis for refusing to consider the 2191 signatures collected by them. The Board cannot plausibly argue and the Supplemental Filing does not even make the attempt to argue that the failure to serve subpoenas on these 20 circulators is sufficient reason to discard the signatures collected by them. Instead, the Board simply notes the number of registered voters whose signatures would be affected, if there were any reason to reject the petitions signed by each of the 20. As described in Petitioner's supplemental submission, however, the most obvious reason for the Board's failure to serve many circulators is that the Board asked a single Board staffer (rather than a professional process server) to attempt to serve 103 witnesses in a relatively short period of time to meet the Board's hearing schedule. The cryptic "reasons" for the failure to serve the 20 circulators listed on pages 7-8 of the Board's Supplemental Filing all but concede the point with respect to at least 18 of the 20 circulators, who accounted for a total of 1974 signatures:

As to six of the 20, who accounted for a total of 553 signatures, the Board offers no reason at all for its failure to serve them.

As to another five of the 20, who accounted for 667 signatures, the reason offered for the failure to serve them was that the Board's staffer was "unable to gain access" to the apartment building in which the circulator lived or "no apt. number" was listed on the address the staffer had for the circulator. A professional process server would not have been stymied by any such minor obstacle. In any event, the Board staffer's inability to overcome this commonplace obstacle is no basis whatsoever for rejecting the 667 signatures collected by these circulators.

As to another four of the 20, who accounted for 396 signatures, the only reason offered for the staffer's failure to serve the subpoena is that the residence was a "shelter." "The Board, however, has long recognized the right of homeless D.C. residents to participate in the electoral process." Board Reply to ACLU Brief at 13. Residence in a shelter, therefore, cannot be a sufficient reason for disregarding the signatures collected by these four circulators. Even if residence in a shelter may make it somewhat more difficult to serve a subpoena, it certainly is not an insurmountable obstacle.

As to another two of the 20 circulators, who accounted for a total of 260 signatures, the reason offered for the failure of service is that the couple "no longer lives there." Petitioner has reason to believe the two circulators continue to live at the address listed on their affidavits, but even if the contrary assertion were true, the fact that a circulator moved after collecting signatures is hardly evidence of any attempt to avoid service or even an insurmountable obstacle to service of process. It provides no basis for disregarding the signatures collected by the circulators.

As to another one of the 20, who accounted for 98 signatures, the Board's staffer inexplicably attempted to serve the circulator at the address he had for another circulator and different from the address on the excluded circulator's affidavit. Aug. 2 Tr. at 114-115.

Thus, the Board's failure to hear testimony from these 18 circulators to rebut the challengers' bare allegations of wrongdoing is largely attributable to the Board's decision to rely on a single staffer rather than a professional process server. In the absence of any suggestion that any of these circulators deliberately took action to avoid service, there is no basis for any inference that the failure to appear to testify was willful or wrongful in any way, and the bare "allegation" of wrongdoing by challengers is no basis for either inferring wrongdoing or disregarding the signatures of registered voters collected by any of these circulators.

In short, no post hoc rationalization of the result in its original decision that the Board eventually may offer this Court can obscure the one essential fact demonstrated by the data the Board has submitted to this Court: Initiative 68 clearly satisfies the statutory requirements for inclusion on the November, 2004 ballot. Whether one starts with 21,279 registered voters and deducts only the signatures collected by the 13 circulators the Board excluded individually (21,279-1773 = 19,506) or one starts with the 14,687 registered voters remaining after the exclusion of all the signatures collected by the Stars and Stripes circulators and adds back in those as to whom the Board's own filing shows there was no basis for exclusion (14,687+3842= 18,529), Initiative 68 clearly satisfies the 5% threshold of 17,599 signatures of registered voters.

The Board's inability to respond to the Court's two simple questions expeditiously is compelling evidence that the Board had no "independent" basis for excluding the signatures collected by the Stars and Stripes circulators in mind when it rendered its initial decision. Nor should the Board be permitted to "run out the clock" by simply failing to respond. Allowing the Board's refusal to respond in a timely manner to frustrate both effective judicial review and the will of the voters of the District of Columbia is fundamentally inconsistent with purpose of the initiative statutes, namely, "to permit the electorate to vote on appropriate issues." Dankman v. BOEE, 443 A.2d at 514-15.

In light of the Board's unconscionable delay, the Court should reverse and remand the decision of the Board immediately, with directions to proceed to a random sample and, if the random sample cannot be completed by the deadline for submitting the November ballot to the printer, the Court should direct the Board to include Initiative 68 on the ballot, subject to the results of the completion of that process. See Dankman v. BOEE, 443 A.2d at 509; see also Harvey v. BOEE, 581 A.2d 757, 758 n.3 (DC 1991) (ordering the Board to place two candidates on the ballot, without remand to the Board for further consideration, where the Board had relied on an invalid regulation in refusing to count signatures on nominating petitions and there was insufficient time to permit further proceedings before the Board in advance of the election).

Very truly yours,
George W. Jones, Jr.

GWJ:gwj

cc:   Kenneth J. McGhie (By telecopy) Ronald L. Drake (By telecopy)
Dorothy Brizill/DCWatch (By electronic mail)
Carol Colbeth/DC Against Slots (By electronic mail) Arthur Spitzer (By electronic mail)

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1. The thirteen circulators are: (1) Steven Atkins, (2) Danielle Campbell, (3) Tenisha Colbert, (4) Melissa Darnell, (5) Evelyn Gerst, (6) Andre Rempson, (7) Shamika Mack, (8) Forrest Jackson, (9) Angelo Farrell, (10) Antoinette Pitter, (11) Antoine Jeffries, (12) Tanica Hunter, and (13) Gwendolyn Squirewell.

2. The 19,506 number reported by the Board excludes signatures collected by Shamika Mack. There is, however, no evidence in the record that Mack was guilty of any wrongful conduct. Petitioner's Reply Brief at 14 & n. 13. The Board has made no effort to defend the continued exclusion of the signatures Mack collected. Petitioner's records indicate that Mack collected the signatures of approximately 178 registered voters, and those signatures properly should be added to the total of 19,506. The 19,506 number reported by the Board also reflects the exclusion of signatures based on the omission of the dates during which the petition was circulated. See Petitioner's Opening Brief at 4647 n. 29. Although Petitioner conceded the omission of the dates, as explained in Petitioner's Opening Brief, the omission was harmless error and the signatures of the registered voters in this group also should be added to the total. Id.

3. While there is no basis for the exclusion of many of the other signatures that the Board refused to count, this letter is not intended as a comprehensive analysis of all the excluded signatures. The point here is only that the Board's own data show beyond any serious dispute that Initiative 68 satisfies the requirements of the statute.

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