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Back to Video Lottery Terminal Initiative of 2004 main page

DC Court of Appeals
Opinion affirming Board of Elections and Ethics rejection of the petition for Initiative 68
September 28, 2004




Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
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Sandra Seegars


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Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press. 

No. 04-AA-957


Petition for Review of a Decision of the District of Columbia Board of Elections and Ethics

(Argued September 8, 2004   Decided September 28, 2004) George W. Jones, Jr., with whom Erik S. Jaffe, John Ray, Stephen L. Neal, Jr., and Elise Dang were on the brief, for petitioner.

Kenneth J. McGhie, with whom Terri D. Stroud and Rudolph M. D. McGann, Jr. were on the brief, for respondent.

Ronald L. Drake, pro se, filed a brief and argued as intervenor. Dorothy Brizill and Carol Colbeth, pro se, filed a brief as intervenor.

Arthur B. Spitzer filed a brief amicus curiae on behalf of the American Civil Liberties Union of the National Capital Area.

Opinion for the court by Associate Judge FARRELL.

Concurring opinion by Associate Judge RUIZ at page 38.

Before FARRELL and RUIZ, Associate Judges, and NEWMAN, Senior Judge. 

FARRELL, Associate Judge: Petitioner, the Citizens Committee for the District of Columbia Video Lottery Terminal Initiative (the Citizens Committee), challenges a decision of the District of Columbia Board of Elections and Ethics (the Board) rejecting 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 circulated and signatures gathered by the Stars and Stripes circulators. After exclusion of these signatures, the number of apparent verified signatures remaining was below the number of 17,599 signatures of voter registrants citywide necessary to place the measure on the election ballot.1 The Board therefore declined to certify the initiative for submission to the electorate. For the reasons that follow, we affirm the decision of the Board.


The Board rejected the petition sheets and signatures attributable to the Stars and Stripes operation2 after a lengthy evidentiary hearing and after finding essentially two classes of wrongdoing by Stars and Stripes circulators headquartered at the Red Roof Inn, a hotel located at 500 H Street, N.W. The first, so-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).3 The second class of irregularities, which the Board called “false advertising,” concerned 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 Board found that 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.”

This court initially remanded the record to the Board for clarification of its ruling in light of significant First Amendment concerns raised by the Citizens Committee (as well as the ACLU as amicus) regarding the Board’s exclusion of signatures based on “false advertising.” We asked the Board to clarify (1) whether or not it intended 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, why. We further stated that “assuming the Board answers the first question affirmatively, it may wish to offer additional explanation of why it believes exclusion of signatures gathered by 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.”

Following the remand, the Board issued a lengthy memorandum opinion that stated in conclusion:

The Board’s finding regarding “false signings” is separate from its “false advertisement” finding and provides an independent basis on which the Board intends its decision to rest. Because of the pervasiveness of the irregularities associated with the “false signings” and the accompanying pollution of the process that those irregularities fostered, the Board’s decision invalidating the Stars and Stripes petition sheets rests independently on the finding regarding “false signings.”

The Board reaffirmed and further explained its conclusion that “there was a systemic pattern of wrongdoing that permeated the Red Roof Inn operation,” a “pervasive pattern of fraud, forgeries and other improprieties” that necessitated exclusion not just of petition sheets circulated by individuals implicated in wrongdoing by name at the hearing, but of all those circulated by the Stars and Stripes operation.


We affirm the Board’s thoroughly documented and carefully explained decision, substantially for the reasons stated in its supplemental opinion attached hereto.


The Board’s manifold findings of circulator impropriety, which are supported by substantial evidence in the record as a whole, Pendleton v. District of Columbia Bd. of Elections & Ethics, 449 A.2d 301, 307 (D.C. 1982),4 include the following:

– – Of the seventy-nine Stars and Stripes circulators the Board was able to identify from documents provided by the Citizens Committee, twelve appeared at the hearing in response to subpoena by the Board. Eight of these testified to having falsely signed circulator affidavits, and two refused to testify on grounds of self-incrimination. Those who testified identified three other circulators by name who had engaged in similar false signings. The Citizens Committee, by contrast, called no Stars and Stripes circulators to testify.

– – Besides implicating themselves and naming other wrongdoers, the witnesses “implicated . . . a much larger group of unnamed wrongdoers.” In particular, Mike Jones, a “mid-level/supervisory affiliate of the Stars and Stripes organization,” had engaged in the “well-known common practice” of having D.C. residents sign the affidavits of non-resident circulators. (“The out-of-towners,” as one resident witness testified, would “go out all day and get signatures; but they didn’t have [any]body to sign it. And so I made a couple of extra dollars by just signing . . . their papers.”) Other non-resident circulators likewise claimed not “to worry about D.C. residents being there [to witness petition signatures] . . . [T]hey had D.C. residents all lined up to sign off on the signature[ petitions] after they turned them in.”

– – Regarding some fifty-four petition sheets, the documents themselves showed that the signatures or printed names on the circulator affidavits had been crossed out and another signature or name substituted. “Indeed, the names of twenty-three different circulators appear as the replacements for the crossed-out signatures or names on the altered petition sheets.”5

– – Witnesses testified to forgery of their signatures on affidavits. One witness said that of the twenty petition sheets attributed to him, he circulated only two; and another said he had circulated none of the forty petition sheets attributed to him. In addition, the Board “gave some credence” to reports of a “signing party” at the Red Roof Inn where names and addresses were allegedly copied from the telephone books onto petition sheets.

– – Eight circulators who could not be subpoenaed had listed addresses on the affidavits that were non-existent or related to premises that were abandoned.

On the basis of this evidence, the Board found “a pervasive pattern of fraud, forgeries, and other improprieties that permeated the petition circulation process” operated by Stars and Stripes, in that witnesses had testified “not to individual acts of wrongdoing in an otherwise lawfully functioning system, but to an operation in which false signings were an established practice.” In determining the proper remedy for this practice, the Board also considered the failure of the Citizens Committee to produce contrary evidence:6

The Citizens Committee provided no evidence which contradicted the individual acts of wrongdoing to which the witnesses testified. It provided no evidence to rebut the established practice of “false signings” in which Mike Jones was identified as playing a key role . . . . It provided no evidence to rebut the physical evidence presented by the altered circulator affidavits — indeed, it conceded the vast majority of those challenged sheets. And . . . it made no apparent effort to produce witnesses who could not be located through the Board’s subpoena process. [Emphases in original.]

Given the unrebutted “evidence of pervasive ‘false signing’ irregularities,” the Board concluded that “the taint on the entire Stars and Stripes process requires the rejection of all signatures associated therewith.” Because there was substantial unrebutted “evidence of wrongdoing which goes beyond named individuals to the [Stars and Stripes] operation as a whole,” invalidation of the entire fruits of that operation was necessary, it concluded, “[i]f the integrity of the electoral process is to be maintained.”


Just as we uphold the Board’s findings of fact as supported by substantial evidence, we hold too that its conclusions of law flow rationally from those findings and comport with the applicable law. See generally, e.g., Cathedral Park Condo. Ass’n v. District of Columbia Zoning Comm’n, 743 A.2d 1231, 1239 (D.C. 2000). The Board’s conclusion that the pervasiveness of the wrongdoing associated with Stars and Stripes required exclusion of all petitions circulated by that operation is a mixed one of law and fact. It is factual, and thus requires substantial deference by this court, to the extent that it rests on the determination that the improprieties shown by the evidence point to “systemic” wrongdoing, i.e., an established pattern of fraud, forgery, and disregard of the statutory “in the presence” requirement by circulators and condoned by supervisors such as Mike Jones. It is more legal in nature to the extent that it presents the question whether the Board properly drew inferences adverse to the Citizens Committee from the Committee’s failure to produce any Stars and Stripes circulators to contradict the evidence of wrongdoing presented. In the circumstances of this case, the Board’s use of what amounts to a missing witness inference to extrapolate from the evidence it heard to a broader conclusion about the integrity of the Stars and Stripes operation was proper. As the Board pointed out, fully 83% of the Stars and Stripes circulators who responded to its subpoena gave testimony about false signings. Others were properly served with a subpoena but failed to appear, and the Board was unable to serve a still larger number. These circulators, because they had been employed by the Citizens Committee (and in many instances had been paid by it), were peculiarly within its control or ability to present as witnesses, and could be expected to shed significant light on the issues before the Board. Yet the Committee did not present a single one of them as a witness. In such circumstances, the law permits a trier of fact to draw unfavorable inferences about testimony against the party best equipped to call the witness but who fails to do so. See, e.g., McPherson-Corder v. Chinkhota, 835 A.2d 1081, 1085-86 (D.C. 2003); Strong v. United States, 665 A.2d 194, 197 (D.C. 1995); Lawson v. United States, 514 A.2d 787, 789 (D.C. 1986).7 The Board’s conclusion, drawn partly — but only partly — from this absence of rebuttal evidence, that the wrongdoing shown by the evidence extended well into the ranks and hierarchy of the Stars and Stripes operation is supported factually and legally.

The Citizens Committee’s response to this conclusion is basically twofold. First, the witnesses who testified and admitted wrongdoing were not “a random sample of circulators,” it says; rather they were a small sub-group who “had a variety of connections to each other that make them more likely to have acted in concert with each other, but which distinguish them from the remainder of the Stars and Stripes circulators.” The Board was not required to accept this improbable notion that those who alone had behaved wrongly were also those more “likely to appear together” under oath and admit wrongdoing. Similarly, the Committee asserts that it would have been “pointless” for it to attempt to “rebut[] the testimony of individuals who confessed to their own wrongdoing.” But while it indeed might have been fruitless to attempt to rehabilitate these witnesses in particular, the Board found that their testimony demonstrated a pattern and practice of wrongdoing by Stars and Stripes circulators, and the absence of any contrary testimony showing the proper day-to-day conduct of the operation — by persons “[]informed about what was going on in the field” — was something that the Board could properly take into account.

We likewise uphold as reasonable the Board’s determination that striking all of the petition sheets generated by Stars and Stripes was necessary to preserve the integrity of the ballot process. D.C. Code § 1001.16 (k)(1)(D) permits the Board to reject an initiative or referendum petition if “[t]he petition sheets do not have attached to them the statements of the circulators as provided in subsection (h) of this section.” Subsection (h), as explained at the beginning, sets forth the important affidavit requirements to be met by a petition circulator, including an assertion under penalty of perjury that the circulator was in the presence of each person who signed a petition sheet. In cases of proven false signing of affidavits, the Board thus has undeniable authority to strike whole petition sheets associated with that impropriety. We likewise believe that, in a case such as this where the Board has justifiably found that wrongdoing permeated a signature-gathering operation, it may adopt the remedy of excluding all petitions associated with that operation — here Stars and Stripes. That remedy does not “disenfranchise legitimate voters,” as the Citizens Committee argues, but rather upholds “the integrity of [an initiative] process” that has been “undermined by forgeries and . . . fraud.” Williams v. District of Columbia Bd. of Elections & Ethics, 804 A.2d 316, 321 (D.C. 2002).

In Williams, a nominating petition case, we held that the Board “acted within its proper authority by disallowing all of the [voter] signatures attributable to” a family of circulators, the Bishops, who the Board found had engaged in widespread pollution of the petition-circulating process. Id. at 321 (emphasis added). The Citizens Committee argues that Williams may support exclusion of a subset (not clearly defined) of the Stars and Stripes petitions but not the entire class; the Board there did not imply, it says, that the petition sheets from other circulators who had not participated in the Bishops’ wrongdoing could properly be rejected. In fact, of course, neither the Board nor the court in Williams had occasion to reach that issue of extrapolation because exclusion of the Bishop petition sheets alone brought the number of valid ones below what the law required for the candidate to appear on the ballot. Id. at 317. Williams nevertheless endorsed the principle that the filing of a false affidavit by a petition circulator is much “‘more than a technicality’” and instead “‘destroys the safeguards [by which nomination signatures are obtained and verified] unless there are strong sanctions for such conduct such as voiding of petitions with false certifications.’” Id. at 319 (emphasis added) (quoting Brousseau v. Fitzgerald, 675 P.2d 713, 715 (Ariz. 1984)). In the present case, the Board found the relevant analogue to the Bishop circulators in Williams to be the Stars and Stripes operation, stained as it was by “a pervasive pattern of fraud, forgeries and other improprieties that permeated the petition circulation process.” Given that finding, exclusion of all of the Stars and Stripes petitions was a proper remedy.

It is worth pointing out, moreover, that even a remedy well short of excluding all of the Stars and Stripes signatures would have placed the Citizens Committee’s effort to gain ballot access in grave jeopardy. In briefs and at oral argument, the parties agreed that after the Board’s initial check of petition signatures against the voter registration lists, and after withdrawal of a large number of petition sheets by the Citizens Committee, some 21,664 signatures remained in support of the initiative, a number subsequently reduced to 21,279 by challenges technical in nature. Only at that point did the Board take up the substantive allegations about the petitioning process that gave rise to the evidentiary hearing and the ultimate findings of serious wrongdoing we have described. As Attachment A to the Board’s supplemental opinion reveals, approximately 19,506 apparently valid signatures remained after the Board struck the petition sheets of the eight Stars and Stripes circulators who testified and admitted to false signings, the two who appeared at the hearing but refused to testify, and the three named by the testimony as additional false signers. Attachment A sets forth three additional categories of Stars and Stripes circulators whose petition sheets, if excluded, further reduced the number of remaining signatures to 18,093 — less than five hundred above the citywide required minimum of 17,599. These were circulators who (1) had submitted false declarations of address of residence, (2) had participated in alteration of affidavits, or (3) had been properly served with Board subpoenas but failed to appear in the face of allegations of wrongdoing on their part. Regarding each of these categories, the Board was within its right to exclude — as it did — all signatures attributed to those circulators. But further, in Attachment B the Board named fifteen more circulators described as “unaffiliated” who evidence showed had taken part in similar acts of affidavit alteration and false declarations of address. If excluded, the signatures attributed to these circulators would have reduced the remaining signatures before the Board by almost another thousand, well below the statutory minimum. The Board did not strike these signatures only because it could not link the circulators to Stars and Stripes, although it made clear (in footnote 25 of the supplemental opinion) its belief that blame for the inability to establish their affiliation lay with the Citizens Committee.

The point of this discussion is not to furnish an alternative rationale for the agency’s decision: the Board struck all of the Stars and Stripes petition sheets, and no others.8 What the numbers do signify, however, is that unless the Board was obliged to choose the narrowest feasible remedy for the wrongdoing it found — i.e., excluding only the petition sheets of specifically named circulators for Stars and Stripes — then the remaining signatures after any remedy it imposed were almost certain to fall short. For the reasons discussed, the Board acted within its authority in concluding that a broad remedy of exclusion — commensurate with the magnitude of the wrongdoing it had found — was necessary to preserve the integrity of the circulation process.9



Board of Election and Ethics Clarification Memorandum Opinion

[Concurring decision]

RUIZ, Associate Judge, concurring: I cannot agree that the Board’s disqualification of the signatures gathered by all the circulators affiliated with the Stars & Stripes operation can be squared with the demands of the First Amendment or brought within our decided cases. The Board’s ultimate determination is nonetheless sustainable on a narrower ground subsumed in the Board’s opinion.

Notwithstanding generalized allegations, the evidence of specific misconduct was limited to a third of the seventy-nine circulators affiliated with Stars & Stripes. The Board had testimonial evidence of wrongdoing by thirteen circulators,1 and documentary evidence of wrongdoing by another eight circulators.2 The Board could also properly draw inferences of wrongdoing as to six additional circulators who were subject to allegations of wrongdoing, served with subpoenas, and did not appear.3 Because of the reliance placed on the circulators’ affidavits to ensure the validity of the signatures, the Board was justified in excluding all the signatures gathered by these twenty-seven circulators whose affidavits were fraudulent or facially unreliable.4 See Williams v. District of Columbia Bd. of Elections & Ethics, 804 A.2d 316, 318 (D.C. 2002) (per curiam). In Williams we upheld the Board’s decision to disqualify all the signatures gathered by three circulators based on the Board’s finding that they had engaged in pervasive fraud, as shown by substantial evidence that was specific to those three circulators: errors and forgeries evident on the face of the petitions themselves as well as an inference from the circulators’ decision not to appear after they were challenged and served with subpoenas. See id. at 320. Thus, we held that the Board “could disallow all of the signatures affected by the wrongdoing.” Id. at 318 (emphasis added). In contrast, there is no comparable evidence here to disqualify signatures gathered by fifty-one of the seventy-nine circulators affiliated with Stars & Stripes.5 “At most” there is “some suspicion” that perhaps some of these circulators might have engaged in wrongdoing – associative suspicion which the Board has previously found too tenuous to disqualify presumptively valid votes, even when the persons suspected of wrongdoing were summoned, served, and did not appear. Allen v. District of Columbia Bd. of Elections & Ethics, 663 A.2d 489, 496 (D.C. 1995) (noting presumption that voters’ affidavit of residence is truthful and refusing to draw negative inference from failure to appear in response to subpoena because “there might be a variety of reasons for not attending, and the notion that a voter stayed away because he or she had no response to petitioners’ allegations is altogether speculative.”). The Board’s “totality of the circumstances” rationale to discredit the affidavits of all circulators merely because they were affiliated with Stars & Stripes stretches Williams past the breaking point and is not supported by substantial evidence. See Williams, 804 A.2d at 318 (noting that court must accept Board’s findings of fact if supported by substantial evidence).

The most concrete example that the Board’s sweeping remedy of disqualifying all Stars & Stripes circulators does not reasonably flow from the evidence is provided by the evidence of record concerning two D.C. residents, Bobbie Diggs and Margol Inabinet, who participated in the Stars & Stripes petition drive. The Board credited their testimony and found that they had substantially complied with the statutory requirement that signatures be gathered “in the presence” of a D.C. resident. D.C. Code § 1-1001.16 (h)(3). Yet the Board’s decision invalidated the 890 signatures they gathered.6 By focusing on deficiencies and irregularities in the Stars & Stripes operation overall (and it appears it was far from exemplary), the Board shifted its attention away from the “signatures affected by the wrongdoing” of particular circulators – the basis for our affirmance in Williams – and arbitrarily struck signatures gathered by circulators it found to be reliable.7 804 A.2d at 318. As we have previously emphasized, “consistent with the overall tenor of the Initiative Act which prevents ‘harmless error’ in the signature collection process from vitiating the validity of the petitions . . . the paramount concern is with the validity of the signatures.” Dankman, supra note 4, 443 A.2d at 515. The Board undoubtedly has constitutional space and statutory authority to oversee the petitioning process to ensure its integrity, see Buckley v. American Constitutional Law Found., 525 U.S. 182, 191 n.10 (1999), but the overarching interest lies in protecting the franchise of those D.C. residents who signed the petitions. Because this is “core political speech” protected by the First Amendment, any remedy that infringes upon it must be narrowly tailored to the evidence of wrongdoing. See id. at 192. Where First Amendment concerns are implicated we “must make an independent examination of the whole record in order to make sure that the judgment does not constitute a forbidden intrusion on the field of free expression.” Guilford Transp. Indus, Inc. v. Wilner, 760 A.2d 580, 592 (D.C. 2000). Although the Board expressly recognized the important First Amendment rights at stake, as I have discussed its chosen remedy went beyond what was supported by the evidence – indeed beyond what was necessary to decide the precise question before it. Particularly where the signatures collected do not decide an election, but merely determine whether the issue is to be presented to the full electorate for a vote, the First Amendment balance should be struck in favor of speech. See Citizens Against Legalized Gambling v. District of Columbia Bd. of Elections & Ethics, 501 F. Supp. 786, 789 (D.D.C. 1980). In the words of Justice Brandeis, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring). The Board’s overly-broad remedy to address what it sincerely perceived to be serious shortcomings in the way the petition circulators were managed, placed greater emphasis on regulating the process than in ascertaining whether there were the requisite number of signatures to allow the initiative to enter the sphere of public debate.

My conclusion that the evidence does not support the Board’s decision to invalidate all the signatures gathered by circulators identified with Stars & Stripes, does not mean, however, that we cannot sustain its ultimate determination that petitioner failed to gather the number of signatures necessary to place the slots initiative on the November ballot. As my colleagues in the majority recognize, there is substantial evidence in the record and analysis in the Board’s opinion to justify affirmance on a narrower basis. See Securities & Exchange Comm’n v. Chenery, 318 U.S. 80, 95 (1943) (holding that “an administrative order cannot be upheld unless the grounds upon which the agency acted in exercising its powers were those upon which its action can be sustained.”). The Board’s Clarification Memorandum Opinion following remand notes that there were documented irregularities in the affidavits of thirteen circulators who were not linked to Stars & Stripes.8 Because the decisive inquiry consistent with the First Amendment is not the quality (or lack thereof) in the training and supervision provided by the umbrella organization, but the validity of the signatures as attested by reliable circulators’ affidavits, the 996 signatures gathered by those thirteen circulators – whatever their affiliation – should have been excluded by the Board. This is not a matter for administrative discretion, as the Board must be satisfied that the proffered signatures are valid either by reliance on the circulators’ affidavits or through its own random and statistical sampling. See D.C. Code § 1-1001.16 (h) & (o)(1). When these 996 signatures are added to the 3186 signatures gathered by Stars & Stripes circulators as to whom there was sufficient evidence of wrongdoing on the record, see footnotes 1, 2 & 3, supra, the number of signatures fell to 17,097, below the requisite 17,599 signatures. It is on that narrower ground subsumed within the Board’s Clarification Memorandum Opinion that I affirm the Board’s conclusion that petitioners presented an insufficient number of signatures to place the initiative on the ballot.

[Footnotes to Opinion]

1. Because of this fact, the Board did not conduct the final stage of the verification process using random samples to compare petition signatures with original voter signatures in its files.

2. At the same time, the Board accepted all signatures gathered by circulators associated with a separate operation conducted by the Citizens Committee from offices of the law firm of Manatt, Phelps and Phillips, LLP, as well as those gathered by circulators whom the Board classified as “unaffiliated” because it could not directly link them to either operation. See discussion in part II.B., infra.

3. As the Board recognized, these requirements effectuate “the State’s need to ensure that circulators, who possess various degrees of interest in a particular initiative, exercise special care to prevent mistake, fraud, or abuse in the process of obtaining thousands of signatures of only registered electors throughout the [jurisdiction].” Buckley v. American Constitutional Law Found., Inc., 525 U.S. 182, 191 n.10 (1999) (additional quotation marks and citations omitted). 

4. “On appeal we do not review the record of an administrative proceeding de novo but, rather, examine the record to determine whether the agency could reasonably have found the facts as it did.” Pendleton, 449 A.2d at 307.

5. The number of such alterations was sizeable enough that the Board was not required to accept the benign explanation now offered by the Citizens Committee that non-resident “circulator-assistants” who were working in pairs with residents might have mistakenly signed sheets and then “corrected that mistake” soon afterwards.

6. The Board noted that, although petition drive managers had testified on Citizens Committee’s behalf, they “appeared uninformed about what was going on in the field.”

7.  “The existence of an employment relationship between a party and a witness has generally been considered a significant factor indicating that the witness is more ‘available’ or within the ‘control’ of the party for purposes of the missing witness rule.” Alan Stephens, Annotation, Adverse Presumption or Inference Based on Party’s Failure to Produce or Examine Witness With Employment Relationship to Party, 80 A.L.R. 4 th 405, 416 (1990).

8. Nor does our affirmance depend on the complete accuracy of the Board’s counting, which has been challenged in various respects by the Citizens Committee, for example, as including instances of double-counting.

9. This conclusion would not be altered in the least by consideration of “declarations” of counsel to the Citizens Committee and an individual non-resident circulator-assistant that are attached to the Committee’s latest submission in this court. Those declarations are not, moreover, part of the agency record and are not properly before us.

[Footnotes to concurring opinion]

1. These circulators gathered a total of 1773 signatures.

2. See Board’s Clarification Memorandum Opinion, Attachment A, Items A (1) and B (1) & (2). These circulators, who gathered a total of 860 (296 + 418 + 146) signatures, submitted petitions with crossed-out names and addresses or petitions in which all signatures were in the same handwriting. The petitioner argues that alterations in the affidavits of circulators listed in Item B (2) could have innocent explanations and the Board therefore unjustifiably drew an inference of wrongdoing based simply on their failure to appear even though they were not served. A review of the petitions sheets submitted by these circulators shows that petitioners’ argument is far-fetched and that the Board had sound documentary evidence to support its decision to reject the signatures gathered by these circulators.

3. See Attachment A, Item C (1). These circulators gathered a total of 553 signatures. In supplemental filings, petitioner notes that Sheila Washington, one of the circulators who the Board claims was subpoenaed and failed to appear, did in fact testify before the Board. Because only forty signatures at issue are attributable to Ms. Washington, even taking this assertion as true, for the reasons described infra the proposed initiative would still fail.

4. Even though the Board no longer has a rule that expressly so provides, First Amendment concerns would caution that such a remedy is proper in the absence of countervailing proof that notwithstanding the deficiencies in the circulators’ affidavits, the signatures these circulators collected were, in fact, valid. Cf. Dankman v. District of Columbia Bd. of Elections & Ethics, 443 A.2d 507, 513 (D.C. 1981). There was no such evidence presented to the Board. Before this court, seventeen D.C. residents who signed the petitions and wanted to have their votes counted sought to intervene, but their motion was denied by my colleagues in the majority.

5. See Attachment A, Items C (2) and D. These circulators gathered a total of 2518 (1540 + 978) signatures.

6. It could be assumed that the Board’s decision to invalidate the signatures gathered by Diggs and Inabinet in the original order rested on the Board’s view that all the Stars & Stripes circulators had engaged in “false advertising.” Even after the Board has eschewed reliance on that rationale, however, it perseveres on the identical remedy, which as indicated in the text, is flatly contradicted by the evidence.

7. In its opinion, the Board effectively shifted the burden to the petitioner to refute allegations that even those circulators who were not implicated and whose affidavits were sufficient on their face were tainted by misconduct. Because I sustain the Board’s ultimate decision on a narrower ground I need not decide on the extent, if any, to which the Board properly could rely on the fact that petitioner did not present evidence to counter allegations
of a pattern of fraud in the Stars & Stripes operation. If required to do so, I would think it difficult, on this record, to sustain the broad “missing witness” inference made by the Board  and that my colleagues condone. That inference is valid where the witness is “peculiarly within the control” of a party who has reason to believe that the witness would have evidence “relevant and material to a disputed issue in the case.” Thomas v. United States, 447 A.2d 52, 57 (D.C. 1982). But it might not have been apparent to the petitioner during the hearing that following a remand by this court the Board would in this case for the first time decide to invalidate a great number of signatures based on a “totality of the circumstances” approach that extrapolated known misconduct by twenty-seven circulators to taint the efforts of fifty-one others based on their common affiliation with an umbrella organization. Moreover, although the circulators involved in the petition drive were paid by the Stars & Stripes umbrella organization, they were not “peculiarly within its control” as they were not employees in the traditional sense. As is apparent from the record, a number of the circulators (some of whom lived in homeless shelters and halfway houses and were likely un- or under-employed) formed only a loose association with the organization when they took advantage of an opportunity to make some money by signing up on short notice to work on the petition drive for a few days. There undoubtedly were others, the professional non-residents, who are more permanently associated with Stars & Stripes, notably Michael Jones. In light of the testimony directly linking Mr. Jones to gross improprieties, the Board could well burden petitioner’s cause with a negative missing witness inference when he failed to appear at the Board’s hearing. But even that inference could take the Board only so far as there was little evidence of how many circulators were in fact tainted by his methods, and whether they were in addition to the ones already implicated.

8. See Board’s Attachment B, items A & B. These circulators gathered a total of 996 (358 + 218 + 420) signatures.

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