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DCWatch 1327 Girard Street, N.W. Washington, D.C. 20009-4915 202-234-6982, fax 202-234-6982 http://www.dcwatch.com September 20, 2004 BY HAND The Honorable Michael W. Farrell 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 Court’s 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 Board’s decision to disregard all the signatures collected by Stars and Stripes circulators." Stripped of its sarcasm, the Petitioner’s 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 Court’s 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 counsel’s 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 Court’s 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 Court’s order required a clarification of the Board’s written order, any response that the General Counsel’s staff initially prepared had to be approved by the members of the Board. Under these conditions, the Board’s response to the Court has been filed not only in a timely manner, but in an expeditious one. The Petitioner’s charge, filed late on a Sunday evening to appear before this court just prior to the Board’s 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 Board’s response has been filed with the Court, the Petitioner’s 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 Petitioner’s 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 CERTIFICATE OF SERVICEI 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. Erik S. Jaffe John Ray Kenneth J. McGhie, General Counsel Ronald L. Drake, Pro Se Arthur B. Spitzer Dorothy A. Brizill |
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