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DCWatch 
Letter to DC Court of Appeals replying to petitionersí letter of September 19, 2004
September 20, 2004

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Washington, D.C. 20009-4915
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September 20, 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:

In his letter to this Court of September 19, 2004, George Jones, attorney for the Petitioners in this case, complains that, "Nearly a full week after this Courtís Order directing the Board to respond expeditiously, the Broad 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 Boardís decision to disregard all the signatures collected by Stars and Stripes circulators."

Stripped of its sarcasm, the Petitionerís letter fails on its face to a make a serious case that there has been a dilatory response by the Board of Elections and Ethics. It fails to note that the Courtís order was issued at approximately 4:30 p.m. on Monday, September 13, on the eve of primary election day in the District of Columbia. As this Court is well aware, conducting elections is the core responsibility of the Board of Elections and Ethics, and the attention of the Board, its staff, and its general counselís office was necessarily diverted to that responsibility, not only on election day but also for the following few days. Nevertheless, the Board has filed its "Clarification Memorandum Opinion" this very day with the Court, on the seventh calendar day after the Courtís order. This cannot be fairly characterized as a slow or delayed response.

The proponents of the slots initiative, the Citizens Committee for the Video Lottery Terminal Initiative and its funders, have employed four law firms in this case: Sidley and Austin, Manatt Phelps and Phillips, Erik Jaffe, and Baach Robinson and Lewis. The Board of Elections and Ethics, on the other hand, is represented by a total staff of three attorneys in its Office of the General Counsel. In addition, because the Courtís order required a clarification of the Boardís written order, any response that the General Counselís staff initially prepared had to be approved by the members of the Board. Under these conditions, the Boardís response to the Court has been filed not only in a timely manner, but in an expeditious one. The Petitionerís charge, filed late on a Sunday evening to appear before this court just prior to the Boardís response, seems rather an effort by the Petitioners to generate publicity and to characterize the Board unfairly as attempting to "run out the clock," as its attorneys are quoted in news accounts.

Since the Boardís response has been filed with the Court, the Petitionerís letter and requests to the Court are moot issues. However, it should be noted that the letter continues to mischaracterize and misstate the evidence that was presented to the Board in this case, and the conclusions that can be reasonably drawn from them. The Petitionerís letter of September 19, 2004, claims that "only because the Board also disregarded the signatures collected by Stars and Stripes circulators as to whom the Board had no evidence of wrongdoing was the Board able to conclude that Initiative 68 failed to meet the statutory signature requirements." The Petitioner can make this incredible claim only by ignoring the voluminous evidence and testimony presented during the nine days of hearings and by making the claim, unsupported by the rules of evidence, unsupported by the past practices of the Board, and unsupported by the law, regulations, and case law, that the Board cannot draw generalized conclusions as to the petition circulation operations of Stars and Stripes, not only from the preponderance of the evidence presented to it, but from the totally of the undisputed, unrebutted evidence.

We ask the Court to deny both the request made by the attorney for the Petitioner to order the Board to proceed to a random sampling of the signatures and to deny the request that the Court order the Board to include Initiative 68 on the printed general election ballot.

Sincerely,

Dorothy Brizill
Executive Director, DCWatch

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing letter to the DC Court of Appeals by DCWatch was hereby delivered by facsimile or by E-mail (by permission of the receivers) this 20th day of September 2004 upon the following:

George W. Jones, Jr.
Sidley Austin Brown & Wood LLP
1501 K Street, NW
Washington, DC 20005
gjones@sidley.com

Erik S. Jaffe
Law Office of Erik S. Jaffe, P.C.
5101 34th Street, NW
Washington, DC 20008
Jaffe@esjpc.com

John Ray
Manatt, Phelps & Phillips, LLP
700 12th Street, NW, Suite 1100
Washington, DC 20005-4075
FAX: 202-585-6600

Kenneth J. McGhie, General Counsel
Alice Miller, Acting General Counsel
Terri Stroud, Staff Attorney
DC Board of Elections and Ethics
441 4th Street, NW, Suite 270
Washington, DC 20001
FAX: 202-628-5952

Ronald L. Drake, Pro Se
5 P Street, SW
Washington, DC 20024
FAX: 202-554-3313

Arthur B. Spitzer
American Civil Liberties Union of the National Capital Area
1400 20th Street, NW, #119
Washington, DC 20036
FAX: 202-452-1868
ArtSpitzer@aol.com

Dorothy A. Brizill

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