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IN THE DISTRICT OF COLUMBIA COURT OF APPEALS
CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, and RONALD L. DRAKE, et al., Intervenors. No. 04-AA-957 Brief for Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal InitiativeJohn Ray (Bar No. 214353) George W. Jones, Jr. (Bar No. 323139)* Erik S. Jaffe *Counsel of Record Counsel for Petitioner Citizens Committee for the D.C. Video Lottery Terminal Initiative LIST OF PARTIES1. Petitioner Citizens Committee for the District of Columbia Video Lottery' Terminal Initiative, represented by: George W. Jones, Jr. Erik S. Jaffe John Ray 2. Respondent District of Columbia Board of Elections & Ethics, represented by: Kenneth J. McGhie, General Counsel 3. Intervenor Ronald L. Drake, Pro Se 4. Intervenor DC Watch, Pro Se
Intervenor DC Against Slots, Pro Se
TABLE OF CONTENTSLIST OF PARTIES
TABLE OF AUTHORITIESCASE LAW
Bartnicki v. Vopper, 532 U.S. 514 (2001) STATUTES
D.C. Code § 1-1001.05 REGULATIONS
3 DCMR § 1003.6 ISSUES PRESENTED1. Whether the Board of Elections and Ethics (the "Board") improperly relied on constitutionally protected political speech in rejecting initiative petitions. 2. Whether a Board regulation requiring petition circulators to affirm they have made no false or misleading statements about the initiative can be used to disregard the signatures of qualified electors in support of the initiative, absent evidence that any signatory was misled or that any false statements were made with "actual malice." 3. Whether ad hoc duties imposed on resident circulators and limitations on the role nonresident professional petition organizers may play in a political campaign are inconsistent with D.C. law and unduly burden constitutionally protected activity. - 4. Whether the Board's generic criticism of the organization of a political campaign is sufficient to disregard the signatures of qualified electors in support of an initiative. 5. Whether the remedy imposed by the Board for the improper individual conduct established by the record was narrowly tailored, consistent with the First Amendment, to protect the District of Columbia's interest in the integrity of the electoral process. STATEMENT OF THE CASEOn July 6, 2004, petitioner Citizens Committee for the D.C. Video Lottery Terminal Initiative (the "Committee") filed with the Board of Elections and Ethics (the "Board") approximately 56,000 signatures in support of placing Initiative 68 on the November 2004 ballot. On August 13, 2004, the Board published its written decision rejecting Initiative 68. The Committee timely filed its petition for review of the Board's decision in this Court. D.C. Code §§ 1-1001.16(o)(1), 1-1001.08(o)(2). STATEMENT OF FACTSI. PROCEDURAL HISTORY.On April 22, 2004, the Committee submitted to the Board a proposed initiative entitled "Jobs, Education, and Health Care Expansion Initiative of 2004." The proposed initiative sought to legalize "Video Lottery Terminals" or "VLTs" in the District of Columbia.1 The proponents of the initiative hope to build an entertainment complex in Northeast Washington D.C.2 On May 28, 2004, the Committee submitted a revised version of the proposed Initiative to the Board, the "District of Columbia Video Lottery Terminal Initiative of 2004" ("Initiative 68"). After a hearing, the Board determined that the proposal was a proper subject for an initiative, D.C. Code § 1-1001.16, and adopted the Short Title, Summary Statement, and legislative form. [App. 6-311.3] On June 21, 2004, David Argo, Dorothy Brizill, and Regina James filed a complaint in D.C. Superior Court seeking an order directing the Board to reject Initiative 68. Judge Boasberg dismissed the Complaint, but ordered the Board to delete "D.C." from the Short Title and insert the words "very similar to slot machines" to describe VI-Ts in the first bullet point of the Summary Statement. To avoid any suggestion of advocacy for or against Initiative 68 in the official Summary Statement, Judge Boasberg struck the final bullet point, which noted that the Initiative also would "make nonbinding recommendations to the City Council that the fee paid to the District be used, in part, to improve public schools and to help senior citizens obtain prescription drugs."4 The nonbinding recommendation, however, remained part of the legislative text of Initiative 68, in which the "people of the District of Columbia recognize and declare" that the "District needs to create more 'lobs" and "generate additional revenue" for "(A) Programs to benefit the District public schools ... and (B) Programs to aid District senior citizens in obtaining needed prescription medications." Initiative 68, § 2 (emphasis added) [App. 7]. The Initiative then expressly provides "(7) In order to ensure that the majority of the revenues produced from VLT operations are used for the pressing needs identified," "it is the strong recommendation of the people of the District of Columbia that there be established a `District of Columbia Public Schools Fund' and a 'District of Columbia Senior Citizens Prescription Drug Benefits Fund,"' each to receive one-third of the VLT fee revenue. Initiative 68, § 2 (emphasis added) [App. 8]. On July 1, 2004, the Board issued the official petition sheet for Initiative 68, all-copies, of which included the following: INITIATIVE MEASURE NO. 68 SHORT TITLE SUMMARY STATEMENT This initiative, if passed, will:
[4p. 152]. To be placed on the November 2004 ballot, the proponents of Initiative 68 had five days - until July 6, 2004 - to collect 17,599 valid signatures. II. THE SIGNATURE COLLECTION PROCESS.To obtain the required number of signatures in the short time available, the Committee hired Progressive Campaign Incorporated ("PCI"), the largest petition-circulation firm in the country and one with prior experience in the District of Columbia. July 28 Tr. at 88, 91, 98-100, 361. PCI is owned and managed by Angelo Paparella, who has over sixteen years of experience with initiatives. July 28 Tr. at 292. Paparella sought "the very best managers that could organize this drive" and selected three petition circulation firms - Stars & Stripes, Inc. ("Stars & Stripes"), Initiatives Plus, and Burkett Petition Management Company (collectively, the "Subcontractors") - each of which he had worked with on prior campaigns. July 28 Tr. at 303-304. Stars & Stripes in particular had worked with PCI on another D.C. initiative, and Carl Towe, the principal of Stars & Stripes, had seventeen years of experience circulating petitions throughout the country. July 26 Tr. at 10, 29, 33; July 28 Tr. at 300. Mr. Paparella also dispatched Robert Grocholski, a veteran PCI employee, to the District to supervise and manage the process. July 28 Tr. at 304. Grocholski acted as the "eyes and ears for Angelo [Paparella], on-the-ground, to report on many days on an hourly basis ... [and] also to give instruction to some of the other [subcontractors] and assist with the petition effort." July 27 Tr. at 391-92. The three Subcontractors in turn retained managers to recruit and coordinate both nonresident professionals for their expertise and District residents who would serve as "circulators." July 27 Tr. at 289, 292. Carl Towe of Stars & Stripes hired Ross Williams, Grant Sawyer, Chad Towe, and Charles Snow as his managers. The Stars & Stripes group arrived on or about June 21 S`, before the petition was approved by the Board, and set up operations at the Red Roof Inn. July 26 Tr. at 13. The other subcontractors arrived on the third day of the petition drive and set up at the Days Inn, and another group met at 1501 M Street. July 27 Tr. at 332. A. Training of Circulators.Paparella of PCI testified that his first action after being hired was to contact the Board to ask whether there had been any changes in the governing law and regulations since 2002, when he last managed an initiative campaign in the District. July 28 Tr. at 300-301. After multiple conversations between PCI staff and the Board, July Tr. at 301-02, Paparella instructed the Subcontractors and Grocholski on D.C. election law. July 27 Tr. at 393-94. Paparella briefed his subcontractors, and the subcontractors briefed their managers. July 26 Tr. at 31; July 27 Tr. at 292-93, 302. For example, Towe of Stars & Stripes explained to all his managers the importance of D.C. election law and instructed them "to abide by all those laws" "especially on a petition that is being challenged ... before the petition is ... released to circulate." July 26 Tr. at 32. The Subcontractors hired non-resident professionals and resident circulators to perform the actual signature-gathering. Those persons were to be paid on a variable per-signature scale. Resident circulators would either go out on their own (Category 1); team with non-residents, both gathering their own signatures and witnessing the efforts of their non-resident co-workers (Category 2); or team with non-residents and witness their efforts, but not personally take signatures themselves (Category 3). July 26 Tr. at 39-41, 44-45, 53-55; July 27 Tr. at 74-77, 144-45, 295-303.5 Circulator training sessions for Stars & Stripes were conducted by Ross Williams, who had approximately twenty years of petitioning experience in several states and has worked with "each and every petition facilitator there is in the United States. July 27 Tr. at 15, 16, 67. Williams' training sessions started on June 30`h (a day before the petition was issued) and lasted until Sunday, July 4`h. July 27 Tr. at 212. In those training sessions, Williams asked circulators to read the petition and specifically went over the "synopsis part" and the "affidavit portion," the latter of which he believed to be "important, just as the petition itself is important." July 27 Tr. at 221. Williams told his circulators that the Initiative was a "Gambling Initiative" or about "slots" or "slot machines" because VLT was not a commonly known term. July 27 Tr. at 22-23, 26, 3-5, 38-39, 163-64, 214-16, 249-50. Williams also trained the circulators on the governing law, telling them to collect valid signatures, that the circulator must be a D.C. resident who must "watch" the non-residents or "be in the presence of them," and that they should not commit fraud, forgery, or lie or misrepresent the Initiative otherwise they could face jail time. July 27 Tr. at 27-28, 213-18. Most, if not all, circulator witnesses testified that they told signors that the initiative was about "VLTs," "gambling," "DC Slots,", or "a casino." E.g., July 27 Tr. at 242 (Cowan); July 26 Tr. at 312 (Campbell); July 28 Tr, at 14-15 (Colbert) and July 26 Tr. at 444 (Inabinet). Williams of Stars & Stripes, Michael of Initiatives Plus, and Paparella of PCI all testified that the tactic of a circulator should be to frankly ask people if they support "slots" or gambling and, if not, to move on and not waste time trying to convince them otherwise. July 27 Tr. at 29, 282; July 28 Tr. at 337. The video tape submitted by Challenger DC Watch (Brizill) also shows circulators talking primarily about VLTs, slots, and gambling. Exhibit 63. The Committee also gave most circulators a brochure that described the proposed development project if Initiative 68 was approved and the benefits that the Initiative would "help create." Brochure [App. 155-561. In his training, Williams borrowed directly from the brochure, which the Board found to be a "legitimate promotional piece." Aug. 3 Tr. at 20 [App. 67]; see Decision at 44-45 [App. 142-43]. B. Additional Measures To Assure Compliance with the Law.To safeguard the integrity of the process, the Committee and PCI required petition circulators to provide appropriate identification proving age and D.C. residency. See Exhibit 53 (file of circulator identification and agreements); see also [App. 154]. The Committee also required circulators to sign a supplemental Declaration of Witness in which each circulator attests under penalty of perjury that he/she witnessed the signatures appended to the petition. Exhibit 7, Letter from John Ray to Board of Elections and Ethics (July 6, 2004), Tab 3 (Declaration of Witness). Circulators also received a handout entitled "Notice to Petition Circulators" that restated the governing law and reminded the circulators to witness signatures and not to falsely certify that they witnessed signatures. Id.. Tab 5. (Notice to Petition Circulators). Stars & Stripes, in particular, required its circulators to agree, inter alt that: "I must be present while information and signatures are obtained." Stars & Stripes Agreement at I [App. 154]. The Stars & Stripes Agreement also required a circulator to acknowledge that if "even one forgery was found," that circulator would "not be paid for any of my signatures." Stars & Stripes Agreement ¶ 6 [App. 154].6 The petition collection system required the circulators to provide identification upon turning in petition sheets - so their signatures on the petition affidavits could be matched against signatures on their IDs. It also required a review of the petition sheets before paying circulators - the so-called "purging process" - to look for errors and any detectable signs of fraud or forgery. In several instances, petition sheets were discarded because they looked suspicious. Following the "purging process," each circulator's petitions were grouped and given a "batch sheet" indicating the name of the circulator and manager. July 27 Tr. at 88-90, 134, 363-430; July 26 Tr. at 6:1-62. The petitions were then copied and shipped to PCI in California for "quality assurance" to assess validity rates, accuracy, and ward distribution goals. July 27 Tr. at 425-27; July 28 Tr. 187, 310-311, 320. PCI had a staff of 25 in California, working double shifts to run daily validity checks on petition sheets turned in the night before. July 28 Tr. at 310. C. Coordination and Supervision.The overall circulating process at the various locations was overseen by the Chairman of the Committee, Pedro Alfonso. His field managers helped "manage the process" and "were the eyes and ears out in the field" to report back to Alfonso daily on circulation activities or issues. July 28 Tr. at 263-264. Alfonso also directed Robert Newell to coordinate between PCI's subcontractors and manage activities between all the subcontractor locations. July 28 Tr. at 209. Alfonso, Newell, and members of the Committee met each night to discuss the daily activities. July 28 Tr. at 272. Paparella of PCI also was in daily contact with Grocholski and talked several times a day with all of his subcontractors to' monitor their performance and assure that their operations were carried out properly. July 28 Tr. at 331. Grocholski also drove around the city to observe circulators in action, to give instructions to other coordinators, and to assist with the petition effort and the signature campaign in any way that [he could]." July 27 Tr. at 432. Because, as Paparella explained, the managers "were responsible to make sure that the circulators were working, producing signatures, complying with all the applicable laws, and making sure that they had all their paperwork properly done," July 28 Tr. at 311, Grocholski met each night with the managers to review the activities of the day. July 27 Tr. at 397. III. THE BOARD'S DECISION.The Board rejected the vast majority of signatures that were submitted in support of Initiative 68, including valid signatures of D.C. voters. [App. 99-151]. Excluding the petitions that the Committee withdrew or acknowledged contained some deficiency, the Committee submitted 21,664 valid signatures, distributed throughout the city, and sufficient to meet the requirements for inclusion on the November ballot. Aug. 5 Tr. at 6 [App. 90); see Memorandum from Alice Miller to Board at 2 (August 5, 2004) [App. 33]. Addressing the numerous challenges to the petition, the Board first analyzed each of the challenges that contested specific signatures and/or petition sheets based on missing or illegible information. See D.C. Code § 1-1001.16(o).7 For example, the Board rejected 12 of 14 challenged petition sheets due to an illegibie circulator name. Decision at 19-20 [App. 117-18). The Board invalidated a handful of other sheets based on similar grounds, but also rejected many of those challenges. Id. at .19-25; 28-34 [App. 117-123; 126-132]. Excluding the signatures that the Board struck in connection with the challenges raised by Intervenor Drake, the, Committee had 21,279 valid signatures, with ward distribution sufficient to qualify Initiative 68 for inclusion on the November ballot. Aug. 5 Tr. at 6 [App. 90]; Miller Memorandum at 3 [App. 34]. The Board next turned to the Committee's petition circulation "process, examining the organizational structure of the professional companies assisting in the petition drive, their payments to non-resident professionals and resident circulators, and the various "categories" of resident circulators, who sometimes functioned as observers and witnesses for non-residents in addition to, or instead of, directly gathering signatures themselves. Decision at 25-27 [App. 12325]. According to the Board, the use of resident circulators as witnesses to solicitation by nonresidents tainted the petition drive by "encourag[ing] a system in which the non-resident assistants were viewed by PCI and its affiliates as the `experts' ... [or] the `primary' individuals." Id. at 27-28 [App. 125-261. The Board also criticized the "environment" and "process" of the petition drive based on supposedly false advocacy from some of the training and promotional materials given to petition circulators. Discussing T-shirts briefly used by some circulators that bore the slogan "Sign Up! For Jobs, Schools, & Healthcare" and training that suggested circulators mention the Initiative's support for using VLT revenues for healthcare and education programs, id. at 37-39 [App. 13537], the Board concluded that such statements by petition circulators regarding education or healthcare, whether made orally or as part of a T-shirt slogan, were false or misleading misrepresentations, because they expressed a "guarantee" of education and healthcare benefits. Id. at 39-42 [137-140]. According to the Board, such statements would be acceptable only if the circulators included a disclaimer noting that the City Council could choose to ignore the initiative's "strong recommendations" for the use of funds created from VLT operations. Finally, the Board examined certain isolated alleged incidents of deliberate misinformation about the initiative and the alleged "lack of oversight" over the Stars & Stripes portion of the petition drive. The evidence of deliberate misinformation was taken from a handful of written complaints received by the Board about alleged misstatements made by petition circulators about the Initiative_ The Board then critiqued the management and oversight by Stars & Stripes with respect to the petition drive, stating that it was improper for that company to (1) allow certain employees to recruit D.C. residents to circulate petitions without supervision from their managers, Decision at 46 [App. 144], (2) fail to study D.C. election laws to the level the Board deemed appropriate, id. at 45-46 [App. 143-44}, and (3) not display the requisite "coordination" or management skills that the Board believed necessary for managing a petition drive, id. at 47-48 [App. 145-46]. Based on its critique of the "predominant" 'role of non-residents, its disapproval of the speech used in the petition drive, a number of instances of individual malfeasance, and its various dissatisfactions with the process and oversight, particularly with respect to the subcontractor Stars & Stripes, the Board concluded that the part of the petition drive organized by Stars & Stripes had been "managed - from the top - in a manner that created an environment fraught with opportunities for abuse of process, system, and laws." Decision at 50 [App. 148]. On that basis, the Board rejected all petition sheets signed by circulators who were "associated" with Stars & Stripes. Id. at 50-52 [App. 148-510].8 The Board's decision to reject all the petitions circulated by individuals associated with Stars & Stripes reduced the total number of signatures from 21,279 to 14,687 - 2,912 short of the statutory minimum necessary to qualify for the November ballot. Aug. 5 Tr. at 8 [App. 92]. SUMMARY OF ARGUMENTThe initiative process involves constitutionally protected political activity at the core of the First Amendment. Government action that severely burdens such activity must be narrowly tailored to satisfy a compelling interest. In reviewing government action that punishes constitutionally protected speech, the Court must independently review the, record to assure that the evidence on which the action is based is clear and compelling. In this case, the Board relied on constitutionally protected speech to reject all the petitions circulated by District of Columbia residents "associated" with the Stars & Stripes organization, and disregarded the signatures of thousands of qualified voters who supported Initiative 68. The Board's action rests in large part on, its conclusion that arguments in favor of the Initiative that Ross Williams suggested to circulators during training classes and a slogan on a T-shirt were false and misleading. The Board's action severely burdens the First Amendment rights of the proponents of the Initiative, the circulators, and the voters of the District of Columbia, and it is not narrowly tailored to serve any compelling interest. The record does not support any suggestion of knowingly false or misleading speech. Nor is there any evidence that significant numbers of voters were misled by any supposed suggestion that the Initiative "guaranteed" jobs, better schools, or improved health care. Instead, the Board relied on a strained and implausible interpretation of both the arguments Mr. Williams suggested in favor of the Initiative and the words on the T-shirts. In the context of a highly charged, controversial, and well-publicized campaign about an Initiative described by opponents and the proponents alike as being about legalized gambling in the District, it is inconceivable that any significant number of voters signed the petition in the mistaken belief that it "guaranteed" jobs, better schools, or improved healthcare. Furthermore, as applied in this case, a Board regulation requiring circulators to attest to the truth of their advocacy on behalf of the Initiative is inconsistent with the limitations on the Board's authority as well as the purposes of the Initiative statute. The Board's rejection of thousands of signatures for the further reason that resident circulators associated with Stars and Stripes had not taken the predominant and controlling role in joint soliciting efforts with non-residents also lacks a foundation in District law and violates the First Amendment. The post hoc creation of such additional duties on resident circulators and restrictions on non-resident speakers imposes a severe burden on their core political speech and the speech of both the Proponents of the Initiative and the voters who signed in. support of the Initiative. District law requires only that resident circulators be "in the presence" of the persons being solicited such that the resident circulator can attest to the circumstances of any ensuing signatures. The Board's further requirements and restrictions are inconsistent with the liberal construction principles favoring initiatives and are not narrowly tailored to meet the limited government interest in a residency requirement for petition circulators. The Board's additional criticism of the training and
supervision of circulators by Stars and Stripes, and its attempt to
bootstrap malfeasance by a handful of individuals into an indictment of
all the circulators associated with that operation, likewise have no
substantial basis in fact or law. The Stars and Stripes operation
adopted measures to safeguard the integrity of the process that far
exceeded legal requirements, and those measures operated effectively as
to the vast majority of circulators. The few instances of individual
malfeasance identified by the Board were properly dealt with through
individualized remedies, but provided no basis for condemning the
process as a whole or the many other circulators associated with Stars
and Stripes. ARGUMENTThe Board's decision to reject Initiative 68 rests on its conclusion that all of the petitions circulated by residents "associated" with the Stars & Stripes organization should be discarded. Decision at 51 [App. 149]. The First Amendment prohibits the Board from relying on constitutionally protected political speech as a basis for discarding the petitions, and the additional grounds on which the Board relied are neither valid nor sufficient' bases for such an extreme conclusion. I. INDEPENDENT CONSIDERATION OF THE BOARD'S FINDINGS OF FACT AND CONCLUSIONS OF LAW IS REQUIRED.As this Court recently observed, "[a]ppreciating the importance of the franchise, we construe our election law `liberally ... so as not to deny innocent voters their right to vote." Best v. BOEE, 2004 D.C. App. LEXIS 297 at *10 (D.C. June 4, 2004); see also Lawrence v. BOEE, 611 A.2d 529, 532 (D.C. 1992) ("a prime purpose of Congress in formulating the District of Columbia Elections law was to keep the franchise open to as many people as possible"); Kamins v. D.C. Board of Elections, 324 A.2d 187, 192 (D.C. 1974) ("fundamental nature of the right" to vote requires "construction of the statute in favor of the franchise" absent a "compelling reason to do otherwise") (emphasis added); Citizens Against Legalized Gambling v. BOEE, 501 F. Supp. 786, 789 (D.D.C. 1980) ("initiative legislation should be liberally construed to extend its operation rather than reduce it."). For the same reason, in reviewing a petition, the Board must interpret its requirements "liberally" in favor of inclusion of an initiative on the ballot. The District of Columbia initiative statutes imposes. minimal requirements. To qualify for a place on the ballot, an initiative must be supported by a petition containing valid signatures from 5% of the registered voters in the District, including at least 5% of the voters in five of the eight Wards. D.C. Code § 1-1001.16(i). For a signature to count it must be from a registered voter, be accompanied by the printed name, address, and date of the signature, and be on an official petition sheet containing a signed affidavit of a "circulator" who must be a D.C. resident 18 years or older. 3 DCMR § 1009. Under D.C. law, the circulator's affidavit on each petition sheet must certify, under penalty of perjury, the name and residence address of the circulator and:
D.C. Code § 1-1001.16(h). The Board's regulations further require the circulator to certify in the affidavit that he: was advised of the prohibition against corrupt practices contained in D.C. Code § 1-1001.14; has not made any false statements to the Board; and has not made any false statements regarding the initiative or referendum to any petition signatory. 3 DCMR § 1003.6(g)-(i).9 In the usual case, this Court accepts the Board's findings of fact, if supported by substantial evidence, and defers to the Board's interpretation of the election laws and the Board's regulations, unless the Board's interpretation is plainly wrong or inconsistent with the purposes of the election laws. See e.g., Williams v. BOEE, 804 A.2d 316, 318 (D.C. 2002).10 Where the Board's interpretation of the relevant statute or regulations threatens to disenfranchise District voters, however, this Court has not hesitated to reject it.11 Moreover, in this case, where substantial First Amendment rights are implicated, this Court 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."' Bose Con. v. Consumers Union of the United States, 466 U.S. 485, 498 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 (1964)). Consistent with First Amendment constraints on suppressing or penalizing core First Amendment speech and petitioning activity, where Board action burdens constitutionally protected activity, the Court must assure that the action is narrowly tailored so as not to suppress speech beyond that for which a compelling government interest in suppression is shown. In addition. where the Board suppresses or penalizes core First Amendment speech as "false or misleading," the Court must assure that the evidence of "falsity," and of the speakers' knowledge of such falsity, is clear and convincing not vague and ambiguous. Bose, 466 U.S. at 511. Otherwise, the free and robust debate that the First Amendment seeks to promote will be stifled by self-censorship. II. ASSERTEDLY FALSE OR MISLEADING POLITICAL SPEECH CANNOT SUPPORT WHOLESALE DISENFRANCHISEMENT OF THOUSANDS OF DISTRICT VOTERS WHO SUPPORTED INITIATIVE 68.Based in part on its erroneous view that Ross Williams, one of the men employed to train petition circulators, improperly suggested that circulators argue to voters that the Initiative "guaranteed" prescription healthcare benefits and educational benefits, the Board disenfranchised thousands of District voters who supported the Initiative. The Board concluded that a similar message was communicated by bright yellow T-shirts worn by a limited number of circulators for a day or two and bearing the words (Decision at 36 [App. 134]): SIGN UP! The Board's implicit conclusions were that (1) significant numbers of circulators who heard Williams also understood his remarks in the way the Board interpreted them and then actually solicited signatures by claiming, to significant numbers of District of Columbia voters, that the Initiative would guarantee "jobs, education or healthcare"; and (2) significant numbers of District voters were likely to have been misled by either the advocacy of the circulators or the T-shirts. Those conclusions are baseless, and, in any event, cannot support the Board's wholesale disenfranchisement of thousands of District voters who supported Initiative 68. The Board's decision tramples the First Amendment rights of the proponents of Initiative 68, the circulators, and the voters who supported the Initiative. Finally, the Board's action in this case contravenes the limitations on its authority prescribed in the Initiative statute. A. Circulation of Petitions in Support of an Initiative Involves Political Speech at the Core of First Amendment Protection.The initiative process involves direct political action at the core of the democratic process. In Meyer v. Grant, 486 U.S. 414, 421-22 (1988), the Supreme Court held that a state prohibition on the payment of petition circulators violated the First Amendment. The Court explained:
Id. (footnotes omitted). Because the Board seeks to impose a content-based penalty on such core speech, the protection of the First Amendment is at its highest. "[S]tate regulations imposing severe burdens on speech ... [must] be narrowly tailored to serve a compelling state interest." Buckley v. American Constitutional Law Foundation. Inc., 525 U.S. 182, 192 n. 12 (1999) .(internal quotation marks omitted) (alterations in original). While the Board acknowledges the important First Amendment values at stake in this case, see e&, Decision at 51 [App. 1491, its conclusions evidence no meaningful appreciation of the substantial limitations the First Amendment necessarily imposes on its power to regulate political speech. In this case, the Board discarded hundreds of petitions containing thousands of signatures in support of Initiative 68 based in part on its mischaracterization of the content of protected political speech. Yet it did so without justification by any compelling interest and with a remedy that was not narrowly tailored to satisfy any legitimate interest it might claim. B. Political Advocacy About the Actual and Potential Benefits of Initiative 68 Is Neither False Nor Misleading.1. Initiative 68 Was About Gaming, Jobs, Education, and Healthcare.The extraordinary media coverage of the Initiative campaign eliminated any question about its primary purpose.12 There can be no legitimate dispute that while Initiative 68 is primarily about gaming or "slots," it is also "about" jobs, education, and healthcare. The Short Title of Initiative 68 is "Video Lottery Terminal Initiative of 2004" The official Summary Statement, approved by the Board as well as the Superior Court of the District of Columbia, and which accompanied every petition circulated, states that if passed, the Initiative will "expand the lottery by allowing `Video Lottery Terminals' ('VLTs'), which are very similar to slot machines, in the District of Columbia." (emphasis added) [App. 152]. The stated purpose of Initiative 68 is "[t]o amend the Law [by] ... authorizing the licensing of video lottery terminals and recommending that revenues accruing to the District from the operation of video lottery terminals be distributed equally to the District of Columbia Public Schools Fund, the District of Columbia Senior Citizens Prescription Drug Benefits Fund, and the General Fund of the District of Columbia." (emphasis added) [App. 6]. Section 2 of the legislative text specifically identities jobs, schools, and prescription medication as areas of special concern, and includes a "strong recommendation" that two-thirds of all revenues generated by VLTs be used to support schools and healthcare. The extent of those benefits, whether they are likely to materialize, at all, and any other factors relating to the merits of the proposal are precisely the sort of things that should be the subject of debate in a political campaign. It is not the job of the Board or any other government agency to decide the issues that should be debated or the precise terms in which the arguments should be framed. See Republican Party of Minnesota v. White, 536 U.S. 765, 782 (2002) ("It is simply not the function of government to select which issues are worth discussing or debating in the course of a political campaign") quoting Brown v. Hartlage, 456 U.S. 45, 60.(1982). Nor is it the Board's job to arbitrate "truth" in political debate. 2. There Was Nothing False Or Misleading About Ross Williams' Suggested Advocacy.In its written decision, the Board found that Ross Williams "instructed circulators to rely on education and health care benefits of the Initiative in encouraging. potential signers to sign the petition. [Williams] testified that he encouraged his trainees to say that the Initiative `was about health care'; `that health care would be part of the package'; `that there would be monies isolated out of the process that would go towards education."' Decision at 38-39 [App. 136-37].13 The Board noted that Williams also suggested that the circulators rely on the creation of new jobs in the District. Decision at 38, n.38 (App. 136]. Because it is obvious that the project contemplated by the Initiative would create jobs, the Board correctly found that arguing the Initiative would create jobs "would fall within the ambit of acceptable political speech." Id. As to education and healthcare, however, the Board focused on the supposed' claim that such benefits were guaranteed, and on Williams' failure to qualify his advocacy with the proviso that budget authority in the District rests with the Mayor, City Council, Congress, and the President, any of whom might reject the Initiative's "strong," but non-binding, "recommendation" that the VLT revenue be used to fund healthcare and education. See Decision at 40-41 [App. 138-391. According to the Board, Williams' omission of this fine point of District of Columbia law implied that revenues generated by VLTs under the Initiative "would - not might - benefit public schools and healthcare for senior citizens." Decision at 42 [App. 140]. The Board found that the T-shirts were false or misleading on essentially the same ground. Decision at 41 ("There was, of course, not even a hint in [the T-shirt] message that the schools and healthcare that potential signers were being encouraged to sign up for were mere recommendations by the Proponents and not established facts") [App. l39).14 In context, however, it is clear that no one is reasonably likely to have understood Williams or any of the circulators as suggesting that by putting Initiative 68 on the ballot anyone was "guaranteed" anything. Arguing that permitting slot machines will have desirable secondary effects is permissible political advocacy, regardless of whether people might differ over the certainty of such benefits or whether voters might infer a "guarantee" from language that said nothing of the sort. Even if during the training Mr. Williams failed to include the statement that, of course, the Mayor, City Council, President of the United States, and the Congress have ultimate authority with respect to the budget of the District of Columbia, Mr. Williams' shorthand description of the merits of the Initiative and arguments in favor of it was permissible and constitutionally protected. Characterizing a measure you support in a way likely to garner support among the widest number of qualified electors is at the heart of modem politics. The fact that opponents or the Board would characterize the measure differently cannot make the advocacy false or misleading. Judge Boasberg struck the clause referring to the "nonbinding" recommendation from the Summary Statement because he believed the Board's official summary should be completely neutral, not because it was false or otherwise misleading advocacy. See note 4, supra. What is permissible in a political campaign is not necessarily appropriate for a government agency charged with preparing a neutral, impartial summary, but what is appropriate for a neutral government agency cannot be the standard for acceptable political advocacy. More important, while there are pros and cons respecting virtually every measure of any consequence, the First Amendment generally requires the government to stay out of the business of censoring the articulation of the arguments on either side of the debate. See, g, Republican Party v. White, 536 U.S. at 782; Brown v. Hartlage, 456 U.S. at 60. 3. There Was Nothing False Or Misleading About the T-shirts.On July 1, the first day the Committee was allowed to circulate petitions, Mr. Towe provided some of his D.C. circulators and non-resident assistants with yellow T-shirts that stated "Sign Up! For Jobs, Schools and Healthcare." The words "Sign Up!" were in 4-inch letters. The words "For Jobs, Schools, & Healthcare" appeared immediately below the words "Sign Up!," but in much smaller print, about three quarters of an inch high. Exhibit 32. After a single day, all the T-shirts were retrieved and not used thereafter. The T-shirts to which the Board objected contained no representation of fact and guaranteed nothing. "Sign Up!" is an imperative statement. "For Jobs, Schools, & Healthcare" is an eye-catching phrase that includes no unambiguous declarative content. Conceivably, the phrase "For Jobs, Schools, & Healthcare" might be understood to imply that the wearer of the T-shirt was supportive of- i..e., "for," jobs, schools, and healthcare'-- like nearly every other adult in America. The reader also might infer from the T-shirt that signing the petition being circulated by its wearer would be supportive of jobs, schools, and healthcare. But such an inference is perfectly true, whether or not Congress vetoes the Initiative or local political leaders reject the "strong recommendation" as to how revenues should be used. It is inconceivable, however, that anyone signed the petition solely on the basis of the words on the T-shirt or that he did so because he believed from the words on the T-shirt that the Initiative guaranteed jobs, schools or healthcare. In any, event, the Board cited no evidence that anyone signed for those reasons. Like bumper stickers and political campaign buttons, the evocative language on the T-shirts did little more than attract attention. The T-shirts gave the circulators an opportunity to persuade any voters who might pause to inquire about them that supporting the effort to put the Initiative on the November ballot was worth the time it took to sign the petition. The Board's strained construction of the words on the T-shirts is wholly implausible, without any support in the record, and inconsistent with important First Amendment values. The Board also relied on counsel's "concession" that the wording on the T-shirts was a "mistake. Decision at 41 n.41 [App. 139]; see also id. at 39 & n.40 [App. 1373 ("misrepresentation"). The Board's reliance on the so-called "concession" is misplaced for several reasons. First, in context, it is clear that the "concession" counsel made was the obvious point that Initiative 68 was not only about "jobs, schools, and healthcare." Indeed, at the hearing on August 2, when counsel made the "concession," the distinction was absolutely clear to the Board as well. Aug. 2 Tr. at [App. 225-229]:
There is no basis for any suggestion that counsel understood the language on the T-shirt as "guaranteeing" jobs, education, healthcare, or anything else. Even if the T-shirts should have referred to VLTs or slot machines, in addition to jobs, schools, and healthcare, in the context of seeking signatures for a petition to put an initiative concerning VLTs on the ballot, there is no reasonable prospect that anyone who signed a petition circulated by someone wearing one of the T-shirts was misled. Second, the Board specifically found that relying on the creation of jobs as an argument in favor of the Initiative was within the ambit of acceptable political speech. Decision at 38 n.38 ("Because it is safe to assume that a project of the magnitude contemplated by the Capitol Horizon project would generate jobs, the Board believes that such a representation - unlike that regarding education and healthcare - would fall within the ambit of acceptable political speech.") [App. 136]. Insofar as the "concession" concerned the reference on the T-shirts to "jobs," the Board properly disregarded it. Third, the prospect that the Initiative would help education was no less certain than its creation of jobs given that the proponents plan to create a separate "charitable trust to fund a literacy program for D.C. Public School children," as reflected in the brochures that the Board recognized were acceptable political advocacy.15 The Board offered no explanation of why the evocative, but cryptic one-word reference to "schools" on the T-shirts could only be understood to be an impermissible reference to the "District of Columbia Public Schools Fund." which was `mere[ly] recommended" in the Initiative, as opposed to a perfectly appropriate and permissible reference to the "charitable trust to fund a literacy program for D.C. Public School children" that would be part of the project. As far as we are aware, there is none. As noted at the outset, the T-shirts contain no "representation" of fact or any kind of guarantee with respect to jobs, schools, or healthcare. To the extent the so-called "concession" concerned the reference on the T-shirts to schools and healthcare, the First Amendment required, the Board to disregard it as a basis for striking the petitions, as the Board properly did with respect to the reference on the T-shirts to "jobs." C. Assertedly False or Misleading Statements Provide No Basis for Striking All of the Petitions Signed by Circulators "Associated" with Stars & Stripes.For the reasons already stated, the statements about the purpose and effect of the initiative on which the Board relied were neither false nor misleading. On the contrary, the statements represent good-faith advocacy at the core of political debate, which the First Amendment compels the government to permit voters to sort out. Meyer v. Grant, 486 U.S. at 426 n.7 ("`[T]he people in our democracy are entrusted with the responsibility for judging and evaluating the relative merits of conflicting arguments"') (quoting First Nat'l Bank of Boston v. Belloti, 435 U.S. 765, 790-91 (1978). Any reliance on those statements to discard valid signatures or to reject Initiative 68 cannot be squared with the command of the First Amendment. In Brown v. Hartlage, a Kentucky statute purported to authorize the invalidation of an election on the basis of one candidate's "false" or "misleading" statement that, if elected, he would serve at a nominal salary, in violation of state law prohibiting such a promise. 456 U.S. at 47-52. The Court held that the First Amendment prohibited the use of the statute to invalidate the election. In words no less applicable to the Board's action in this case, the Court explained:
456 U.S. at 60 (quoting Police Department of Chicago v. Mosley, 408 U.S. 92,96 (1972)) (emphases added); see Republican Party v. White, 536 U.S. at 782 ("announce clause" of state canons of judicial conduct, prohibiting candidates for judicial office from expressing views on controversial legal or political issues during campaign, violates First Amendment). The First Amendment requires the government to rely on the participants in political debate itself to correct inevitable misstatement or errors, except in the clearest of cases:
Brown v. Hartlage, 456 U.S. at 61. 1f the opponents of the Initiative believed that false or misleading statements were being made in support of the Initiative, the only remedy consistent with the First Amendment was to set the record straight with more speech. Opponents of the Initiative could have publicized the alleged misrepresentation during the campaign through the media or direct communications with voters being solicited by the proponents, as they did with every other perceived fault of the Committee. Voters who believed they had been misled had ample opportunity to revoke their support by simply writing to the Board and demanding that their signatures be stricken. If the Initiative makes it to the ballot, the opponents will have a second opportunity to use the alleged misrepresentations to defeat the Initiative at the polls. The First Amendment prohibits the Board, without clear evidence of falsity and actual malice, from disenfranchising voters on the basis of vague testimony about imprecise language or arguable omissions and misstatements that may have been made in the course of a political campaign. Allowing the Board to punish protected speech on the basis of such evidence is antithetical to the basic premises of participatory democracy. It would deny participants in the political debate the "breathing space" essential to communicating their ideas and views persuasively. A bumper sticker or campaign slogan simply cannot be judged by the same standards as a merger agreement or a trust indenture. The voters of the District of Columbia, not the Board alone, have principal responsibility for determining whether the Initiative should be on the ballot. Neither the First Amendment nor the Initiative statute permits the Board to usurp that authority. D. The Board Has No Authority To Strike Petitions for Asserted Violation of Its Regulation Requiring Attestation that No False Statements Were Made.To the extent the decision in this case rests on supposed violations of the Board's regulation requiring circulators to affirm that no false or misleading statements had been made to electors who signed the petition, it is invalid for the additional reason that it is beyond the scope of the Board's authority under the Initiative statute.16 If enforceable at all, the Board's regulatory requirement that the circulator represent that he has made no false or misleading statements must include an "actual malice" standard. See Sullivan, 376 U.S. at 271-272. "[E]rroneous statement is inevitable in free debate, and it must be protected if the freedoms of expression are to have the 'breathing space' that they `need to survive."' Brown v. Hartlage, 456 U.S. at 60. Any attempt by the Board to use its regulation to police statements made by circulators during the course of a political campaign raises substantial First Amendment concerns. id. 456 U.S. at 52 ("A State has a legitimate interest in upholding the integrity of the electoral process itself. But when a State seeks to uphold that interest by restricting speech, the limitations on state authority imposed by the First Amendment are manifestly implicated."). The Board's decision in this case does not come close to showing that any of the assertedly false or misleading statements at issue were made by Williams or any circulator with knowledge of falsity or in reckless disregard of the truth or falsity of the statements. As described above,. the Initiative was about slot machines, as well as jobs, education, and healthcare. The Board's strained parsing of those statements to imply that education and healthcare would be guaranteed, rather than merely promoted, by the Initiative does not come close to satisfying the First Amendment's evidentiary standard. And nothing in the Initiative statute purports to authorize the Board to disenfranchise qualified electors of the District of Columbia on the basis of the Board's vague allegations about imprecise language or at best arguably false or misleading campaign advocacy. On the contrary, the Initiative statute carefully limits the grounds on which the Board, may reject petitions. D.C. Code § 1-1001.16(k)(1) (App. 160). As relevant here, the Board may refuse to accept a-petition sheet that does not contain the required circulator's affidavit. As the Board acknowledged, the Initiative statute prescribes the mandatory content of that affidavit. Decision at 10 [App. 1081; see D.C. Code § 1-1001,16(h). It is only the Board's regulation that imposes the additional requirement that circulators attest to the truth of their political speech. 3 DCMR § 1003.6; Decision at 11 [App. 109]. "The paramount concern must be with the validity of the signatures on the petitions, for `to deny the persons who signed these petitions the chance to have those signatures count - solely because of misconduct by others that does not cast doubt on the signatures themselves -- would force this court to stand on form rather than substance."' Dankman 443 A.2d 515, quoting Citizens Against Legalized Gambling, 501 F. Supp. at 790. Because the decision to reject a petition has important consequences not just for the proponent who has collected the signatures, but also for the voters who signed the petition, the Board's authority to expand the bases for striking a petition should be narrowly construed. As construed by the Board, however. the regulation dramatically expands the Board's power to decide whether an initiative will be submitted for the consideration of the voters. Under the regulation, a statement by a circulator that the Board finds false or misleading is an arguable violation of the circulator's duty to represent that no false or misleading statement was made, and a basis for disenfranchising each of the electors who signed the petition circulated by the offending circulator. It makes no difference whether any signatory heard the statement, whether the signer was misled by the statement, or whether he fully supported the Initiative for reasons wholly independent of any such statement (i.e., did not rely upon the alleged falsehood). The Initiative statute does not grant the Board any such power, and the regulation alone is insufficient to support such a dramatic expansion of the Board's power to deny access to the ballot. Cf. Pendleton v. BOEE, 433 A.2d 1102, 1104 (D.C. 1981) ("Our purpose in reviewing elections is merely to insure that no voter was disenfranchised through improper interpretation by the Board, that the results certified by the Board are in fact the true results, and that the Board performed its duty in a constitutionally and statutorily correct manner."). III. THE BOARD MISAPPREHENDED THE SCOPE OF THE RESPONSIBILITY OF CIRCULATORS.A second major rationale the Board used for rejecting petition sheets signed by any and all resident circulators associated with Stars & Stripes was the claim that such circulators failed to comply with the law where "non-resident assistants assumed the predominant role." Decision at 27 [App. 125]. According to the Board, resident circulators are required to be "in control" of the process and their "role must remain primary." Aug. 3 Tr. at 22 [App. 68]; Decision at 27 [App. 125] (resident must be the "responsible" party). Having non-resident professionals take the lead in obtaining signatures with resident circulators receiving guidance from and/or witnessing the signature gathering of non-resident professionals, the Board said, turned the law "on its head." Decision at 27 [App. 125]. The Board's post hoc construction of the. District's resident-circulator requirement imposes upon those circulators the added duties of playing a predominant and controlling role in the operational aspects of joint soliciting efforts, and restricts the activities of non-resident speakers to a secondary role, without any adequate basis under the law. The law requires only that resident circulators be "in the presence" of the persons being solicited so the resident circulator can attest to - i.e., witness - the circumstances of any ensuing signatures. In reviewing the Board's newly manufactured duty imposed on resident circulators (and restriction imposed on non-resident solicitors), this Court should bear in mind the significant limitations placed on rules that burden the petitioning process - where First Amendment protection is "at its zenith," Meyer, 486 U.S. at 425 - and threaten to suppress or reduce speech. The Board's new "in-charge" requirement not only threatens to reduce core political speech - both of the D.C. residents who may need or prefer on-site guidance from more experienced nonresidents and of the non-residents themselves who are forced into a "secondary" role - it in fact has suppressed such speech, effectively nullifying the speech and association of the circulators and non-residents associated with Stars & Stripes, of the proponents of the Initiative, and of the thousands of innocent D.C. voters whose entirely valid signatures petitioning their government were not counted. Such actual and prospective burdens on core First Amendment activity can only be imposed by satisfying the strictest scrutiny, and D.C. law should be construed to impose those burdens - and hence raise severe constitutional questions as to the law's validity - only if it clearly and unequivocally requires circulators to assume such added duties. Cf. McConnell v. FEC. 124 S.Ct. 619, 631 (2004) (Court narrowly construes statute to avoid serious constitutional questions). A. D.C. Law Does Not Require "Circulators" To Have Operational Predominance or Control, Only that They Be Responsible and Accountable through Their "Presence" and Their Affidavits.Even a cursory review of D.C. law demonstrates that resident circulators have no obligation to be predominant in or in charge of the solicitation of signatures. The duties of resident circulators are defined by D.C. law only through the affidavit requirement. In order to execute faithfully the circulator affidavit a resident circulator must only be in the "presence of the person being solicited in order to have knowledge of the several items listed in the affidavit: that the signature is genuine to the best of the circulator's knowledge; the dates between which the signatures on a given sheet were obtained; and that no false statements were made to the signatory. D.C. Code § 1-1001.16(h); 3 DCMR § 1003.6(g)-(i). The legal duties of a "circulator" under D.C. law thus are exclusively evidentiary in nature, having the essential legal character of a witness requirement.17 That limited legal duty is more appropriately tailored to any conceivable government interest and imposes a substantially lesser burden on speech. Even the Board, at one point, seems to acknowledge the limited legal duties of a resident circulator - and the corresponding freedom of non-residents involved in the process - by conceding that "[t]he law does not require that the circulator must be the person who first approaches the signer, the person holding the clipboard with the petition sheet, the person who gives the clipboard to the signer, or even the person who always responds to the signer's questions." Decision at 12 [App. 1 l0]. Indeed, the Board's criticism of non-residents serving as "experts" and coaches in the field, Decision at 27 [App., 125], is in considerable tension with the Board's desire for more training and oversight of circulators. Insofar as the Board suggests that the resident circulator must be the predominant person "engaged" in the process beyond their presence and affidavit duties, or must be operationally responsible and accountable for the solicitation process - rather than legally accountable for observing and truthfully attesting to that process - that suggestion has no basis in D.C. law. Best, 2004 D.C. App. LEXIS 297 at * 11 ("[W]e construe our election law and regulations whenever possible so as to effectuate the basic goal, enshrined in the statute itself, of enabling the voters to `express their preference' D.C. Code § 1-I001'.05(b)(1) (2001)."). B. The Board's Ad Hoc Predominance and Control Requirements Violate the First Amendment.In addition to being an unwarranted extension of D.C. law, contrary to the rule of liberal construction favoring initiative petitions, the Board's restrictive construction of the duties of resident circulators also imposes an undue burden on the First Amendment rights of the resident circulators, the non-residents engaged in political speech, the proponents of Initiative 68, and the District's voters. The only constitutionally plausible basis for a residency requirement is evidentiary in nature - the need for jurisdiction over persons with the information relevant to determining compliance with the election laws. See Buckley, 525 U.S. at 196.19 Any other justifications for a residency requirement - based on assertions of residents' supposedly greater integrity or validity-of-interest in the process - have no factual basis and are constitutionally unacceptable reasons for restricting the activities of non-residents or imposing added burdens on the residents themselves. Meyer. 486 U.S. at 426 (rejecting speculative proposition that professional circulators more likely to commit fraud). Just as in Buckley, where a voter registration requirement was held excessive and insufficiently tailored to the State's asserted evidentiary interest in access to witnesses, so too here the Board's expansion of the duties of resident circulators goes beyond their plausible purpose. The Board's construction thus violates the First Amendment and should be rejected in favor of a narrower construction derived from the plain language of the statute itself, that residents need only be "in the presence" of signatories such that they can faithfully sign the circulators' affidavits, but are left to their own discretion whether they will take a more predominant role. That straightforward requirement is easily understood, narrowly tailored, and furthers both First Amendment interests and the District's fundamental goal of facilitating the initiative process to the greatest extent possible.20 C. The Board's Generic Assault on the Training and Supervision by Stars & Stripes Has No Basis in Law or Fact.After adopting its erroneous view of the required role of resident circulators, the Board proceeded to discuss instances of malfeasance by a small group of individual circulators and to criticize the supposedly flawed "process" of the Stars & Stripes organization as a whole. As to the eight individual circulators associated with Stars & Stripes who testified after initially asserting their Fifth Amendment rights - Campbell, Colbert, Darnell, Diggs, Gerst, Inabinet, Jeffries, and Rempson - the Board found that six had not complied with the "in the presence" requirement as to some of their petition sheets and had signed false affidavits to the contrary. Decision at 28-32 [App. 127-130]. The Board further found three others implicated in similar conduct. Id. Two more circulators took the Fifth Amendment and were deemed unreliable by the Board. Decision at 33 [App. 131].21 Accordingly, the Board rejected the petition sheets from each of the nine individuals about whom it had at least some evidence of malfeasance.22 Despite the failure of those individual resident circulators to comply with the "in the presence" requirement, there was precious little evidence of genuine forgery or fraud as to those non-compliant petition sheets or circulators. Rather, the numerous otherwise-valid signatures had simply been collected by a non-resident outside the presence of a resident circulator. Unlike the flagrant misconduct found in Williams, 804 A.2d at 318 n.2, there were only a small handful of alleged forgeries in over 50,000 signatures obtained. The only instances of signatures supposedly being forged involved two or three signatures forged by resident circulator Rempson and an unconfirmed rumor that there was a "signing party" in one of the hotel rooms. Decision at 35-36 [App, 133-134]. Rempson, of course, had already been deemed unreliable by the Board and his petition sheets rejected. And there was no evidence that any "signing party" actually occurred or involved significant numbers of signatures.23 The difference between this case and Williams is striking. While in Williams the fraud and forgery were readily established from an examination of the petitions themselves - which contained obviously false names and multiple signatures in identical handwriting, 804 A.2d at 318 n.2 - the Board found no evidence of such conduct here. Unlike the dishonesty of the individuals in Williams, the handful of non-compliant circulators in this case were primarily guilty of cutting corners to obtain otherwise valid and genuine signatures.24 Having found only limited instances of actual malfeasance, the Board sought to indict the entirety of the Stars & Stripes operation by attacking alleged aspects of the collection process that in no way violated the law, but which the Board stretched to assert had caused or contributed to the few genuine problems that it found. The defects in the "process" asserted by the Board were: (1) the predominance of non-residents in the process; (2) the falsification of circulator affidavits_ at the insistence of some non-residents; (3) forged signatures of signatories and circulators; (4) training by persons uninformed of District election law and who promoted a supposedly false sales pitch; (5) false advertising of the Initiative; (6) haphazard recruitment of resident circulators to act as witnesses for non-resident signature-gathering; and (7) a lack of oversight of the activities in the field. Decision at 2-3 [App. 100-101]. As already discussed, neither the discussions of jobs, schools, and healthcare nor the involvement of non-residents (whether in a predominant or other role) - criticisms (1), (4), and (5) - were improper or illegal. Indeed, both sets of activity are fully protected core political speech that advance, not hinder, the important values underlying the initiative process. Likewise, the instances of false affidavits and forged signatures - criticisms (2) and (3) - were limited to a few specific individuals and their immediate co-workers, and were not shown to extend to the many other participants in the Stars & Stripes operation. That leaves only three criticisms - items (4), (6), and (7), allegedly uninformed trainers, haphazard recruitment of residents, and lax oversight - that were used to tar numerous individuals regarding whom there was no evidence of any wrongdoing. But the criticized procedural aspects of the Stars & Stripes operation violated no law, were grossly exaggerated by the Board, and were attributed as the "causes" of individual wrongdoing only on the rankest of speculation. While the Board cited selective bits of the record to leap to the conclusion that "no one was minding the store," Decision at 48 [App. 146], it ignored extensive evidence that showed just the opposite and demonstrated substantial efforts by the Committee and Stars & Stripes. to safeguard the integrity of the process. For example, the entire petition-gathering process was run by PCI, an experienced primary contractor that had previously worked with Stars & Stripes on a D.C. initiative effort. July 26 Tr. at 10; July 28 Tr. at 300. Mr. Towe, the principal of Stars & Stripes, was an extremely experienced professional, and his group began preparations in D.C. well before the petition was even certified by the Board. July 26 Tr. at 13, 31-32. As part of the supervision and training, Towe obtained and familiarized himself with D.C. election law and also was briefed by Mr. Paparella of PCI regarding such law. July 26 Tr. at 31-32, 93. Towe was "very much familiar" with the D.C. laws. July 26 Tr. at 10. Towe also explained and emphasized the importance of the law to all his managers and directed them "to abide by all those laws" with especial vigilance given the dogged opposition to the Initiative. July 26 Tr. at 30-31; see also July 27 Tr. at 16 (Stars & Stripes manager "was contacted by Mr. Towe ... about the requirements that were necessary here"); id. at 16, 52-54, 219-20 (Stars Stripes manager testimony evidencing familiarity with D.C. law). Such attention to the integrity of the process carried through to the training of the Stars & Stripes circulators. Stars & Stripes manager Williams trained circulators regarding both the substance of the petition's Summary Statement and the required affidavit, which he believed to be "important, just as the petition itself is important." July 27 Tr. at 221.25 He instructed circulators to collect valid signatures, that the circulator must be a D.C. resident, that D.C. residents must "watch" the non-residents or "be in the presence of them," and that they must not commit fraud or lie, otherwise they would face jail time. July 27 Tr. at 52, 214, 218-219.26 Those instructions were reinforced in numerous ways, including the use of additional Stars & Stripes Circulator Agreements, identification requirements, Supplemental Witness Declarations, and Notices to Petition Circulators.27 In addition to such training and emphasis on abiding with D.C. law, there were numerous checks to ensure that such proper procedures were followed in practice. For example, Stars & Stripes required circulators to provide identification upon turning in petition sheets in order to match the signatures on the affidavits and the identifications. All petitions then went through a "purging process," in which managers physically inspected the petition sheets for irregularities or possible fraud or forgeries. July 26 Tr. at 61-62; July 27 Tr. at 364-465; see also July 26 Tr. at 102 (Towe testimony on review of signatures for technical requirements and to see "if we would suspect that they [were forgeries]"). The effectiveness and integrity of the process were illustrated by one instance in which Stars & Stripes turned in a batch of petitions that they suspected of fraud and forgery to the General Counsel of the Board. July 26 Tr. at 64 or 58. Following the purge process, the petitions were then grouped with a "batch sheet" indicating the circulator and manager for accountability and then copied and shipped to PCI in California for "quality assurance" to check validity rates, accuracy, and ward distribution goals. July 27 Tr. at 89-90, 134, 427-428; July 28 Tr. 187, 310-311, 320. The effectiveness of Stars & Stripes's oversight also was demonstrated by the prompt response to problems as they arose. When questions were raised about the yellow T-shirts, Stars & Stripes managers promptly met with PCI and the Committee. July 28 Tr. at 242-245. Despite the fact that, in context, the T-shirts were not even remotely misleading, because they nonetheless reflected the prior, rather than current, title of the Initiative, they were retracted the very next day. July 26 Tr. at 34; July 27 Tr. at 163.28 ,Managers not only physically took back the T-shirts, but also drove around the city to make sure the T-shirts were off the streets. July 23 Tr. at 413. The Board ignored that voluminous evidence of significant efforts to safeguard the petition-gathering process. It instead improperly relied on the mere potential for wrongdoing by individuals, so inclined, and assumed that any circulator given the opportunity would behave in a dishonest fashion. See Buckley, 525 U.S. at 203-04 ("[A]bsent evidence to the contrary, `we are not prepared to assume that a professional circulator - whose qualifications for similar future assignments may well depend on a reputation for competence and integrity - is any more likely to accept false signatures than a volunteer who is motivated entirely by an interest in having the proposition placed on the ballot."') (quoting Meyer, 486 U.S. at 426, n.23). That Stars & Stripes's efforts were unable to stop all potential problems - which arise on almost any petition drive - is wholly unremarkable and a far cry from evidence that the entirety of the operation was corrupt or otherwise unreliable. In short, the process in place. was wholly consistent with the law's concern for integrity. The few instances of individual malfeasance were identified - either by Stars & Stripes itself or by the Board - and dealt with accordingly. And there was an unprecedented degree of scrutiny from extremely hostile opponents of the Initiative that failed to identify wrongdoing by any of the additional Stars & Stripes circulators other than those individually rejected by the Board. There was simply no basis to condemn the process as a whole or to impute wrongdoing to the other circulators "associated" with Stars & Stripes. IV. THE BOARD'S REMEDY OF DISQUALIFYING ALL CIRCULATORS ASSOCIATED WITH STARS & STRIPES WAS OVERBROAD AND VIOLATED THE FIRST AMENDMENT.Based on its erroneous conclusion that the "control" and "predominance" of nonresidents violated D.C.'s circulator requirements, the Board held that the petition circulation process allowed the non-residents to "circumvent the laws of the District of Columbia." Decision at 28 [App. 126]. Extrapolating from the wrongdoing of a handful of individual malfeasants, the Board took the extraordinary and unprecedented step of rejecting all of the petition sheets from 57 additional circulators who were merely associated with Stars & Stripes, but regarding whom no wrongdoing had been shown. Decision at 52 (App. 150]. Such a determination of guilt-by-association nullified thousands of legitimate signatures for which not a shred of wrongdoing had been demonstrated and violated the First Amendment rights not only of the innocent voters who signed those rejected petition sheets but also of the innocent circulators and non-residents whose political speech had been rendered a nullity and, for the circulators, who had now been impugned as perjurers. This Court should reverse the Board's excessive and blunderbuss penalty and reinstate the petition sheets signed by circulators regarding whom no wrongdoing was demonstrated. A. The Board Erroneously Rejected Sheets from Specific Circulators Supported by Positive Testimony.As an initial matter, in disregarding petition sheets from all 66 circulators associated with Stars & Stripes, the Board elevated speculation over its actual findings by rejecting petition sheets from two resident circulators, Diggs and Inabinet, who testified and whom the Board found had complied with their obligations. See Decision at 29 n.28 [App. 127]. Having discerned no wrongdoing from their testimony, the Board was wrong to reject them based on a tenuous inference from the conduct of others. If there were further aspects of these individuals' conduct about which the Board was concerned, it had every opportunity to ask them directly and thus confirm or dispel any doubts. Having asked and received satisfactory answers to their questions to these circulators, the Board may not tar them in absentia with the supposed sins of others. That would be, throwing the baby out with the bathwater, in substantial contradiction of Board regulations. See 3 DCMR § 1009.7. Furthermore, there was testimony from Williams that many other circulators were doing an outstanding job and that he would work with them again. July 27 Tr. at 153-55. In particular, Williams testified that 15-20 people with whom he had contact were especially good candidates to go on the road for future petition drives because they "followed instructions," and that those resident circulators worked in Category 1 and Category 2 (circulating alone or personally circulating and accompanying a non-resident). Id. That evidence further undercuts the entirely inferential basis on which the Board threw out the signatures collected by Stars & Stripes circulators about whom no evidence of misconduct was offered.29 B. Extrapolating Malfeasance Beyond the Individuals Who Violated the Law Is Excessive and Inappropriate Under D.C. Law.Under D.C. case law, statutes, and regulations, any remedy for circulator misconduct must be narrowly tailored to the persons and conduct deemed in violation of any requirements, and may not, based on innuendo and speculation, penalize others only loosely associated with the wrongdoers and not shown to have participated in any wrongdoing. The Williams case offers a pointed example of the proper scope of any remedy for wrongdoing and, by implication, the limits on such remedy. In Williams, three individual circulators - collectively the Bishops - had been convincingly shown to have committed the grossest and most blatant types of fraud in the circulating process. As was obvious from the face of the petition sheets themselves, the Bishops had completely falsified numerous signatures and then committed multiple acts of perjury in attesting to their genuineness. 804 A.2d at 318 n.2. Each of the Bishops then refused to testify - citing the Fifth Amendment - when called to account for such obvious illegality. Id. at 318, This Court upheld the Board's rejection of all of the petition sheets circulated and signed by the Bishops, concluding that their actual behavior was demonstrably fraudulent and that none of their affidavits, and hence none of the signatures on their sheets, could be trusted. But despite the fact that the entire circulating process had been overseen by one of the Bishops, id. at 320, neither the Board nor this Court even remotely suggested that the petition sheets from other circulators, who had not been participants in the Bishops' fraud, should be rejected merely through guilt-by-association or the bare opportunity to commit fraud given the foul character of the petition effort's coordinator. While this Court allowed the remedy to go beyond the particular signatures that were shown to be false, it nonetheless stopped at the level of the individual Bishop circulators, who, by their own actions and their own demonstrable perjury, gave ample justification for disregarding all of their affidavits. Generalizing beyond individuals is especially inappropriate in this case. The opponents of the initiative were unrelenting in their search for error, large and small, and the fact that they found none beyond the individuals properly rejected is strong evidence that there was none to be found. Regardless of the supposed environment and process in the Stars & Stripes operation, the examples of actual wrongdoing were-hardly a random or statistically valid sample. Cf. Citizens Against Legalized Gambling, 501 F. Supp. at 788 (Board use of bona fide statistical sampling to test for validity). Rather, they were cherry-picked examples of wrongdoing that illustrate the exception rather than the rule. The repeated emphasis by Stars & Stripes on honesty and integrity, and the consequences for failing in either, likewise rebut the notion that its procedures somehow encouraged wrongdoing. While the message of compliance may have been lost on or ignored by some of the individuals in the field, there was significant evidence before the Board that it was not lost on the others. Given such evidence of different behavior by different individuals, the examples of malfeasance cited by the Board must be construed as evidence of personal culpability and lack of integrity, not as a sweeping indictment of the many other honest circulators and professionals whom the Board threw out along with the few bad actors.30 C. The Board's Overbroad Remedy Suppressed and Penalized Core First Amendment Activity Without Constitutionally Adequate Evidence.Even beyond the constraints of ordinary reason, and the authority of this Court's cases favoring liberal interpretation of initiative law and hesitance in the disenfranchisement of voters, in a protected context such as petitioning the First Amendment emphatically prohibits remedies that are not narrowly tailored to the specifics of the harm. See, , Buckley, 525 U.S. at 192 n.12 (burdens on speech must be "narrowly tailored"); Robert Welch, Inc., 418 U.S. at 349-50 (prohibiting award of non-compensatory damages in the absence of actual malice, noting that it is "appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved."); cf. Bartnicki v. Vopper, 532 U.S. 514, 528 (2001) (government may not punish illegal interception of communications by restricting speech of innocent third party recipients of such communications). Such constitutionally required narrow tailoring is alone reason to reject the Board's excessive suppression of protected activity. Mere uncertainty is not justification for ignoring or discarding the political activity of the 57 circulators merely associated with Stars & Stripes or the petitioning activity of voters who signed the sheets of such circulators. Rather, the First Amendment tilts the burden of uncertainty in favor of speech and against those who would suppress it absent clear and convincing evidence of particularized wrongdoing. The Board's remedy thus sweeps far too broadly and must be limited only to the individuals whose own malfeasance has been established. The petition sheets from the remaining 57 circulators, and the 4,415 signatures contained therein, must be reinstated. CONCLUSIONFor the foregoing reasons, the Court should vacate the decision of the Board, and order the Board to place Initiative 68 on the November 2004 ballot for consideration by the voters of the District of Columbia. Respectfully submitted, George W. Jones, Jr. (Bar No. 323139) Erik S. Jaffe John Ray (Bar No. 214353) Counsel for Petitioner Citizens Committee for the D.C. Video Lottery Terminal Initiative CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing Brief for Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative and appendix was served by hand this 20th day of August, 2004 upon the following: Kenneth J. McGhie, General Counsel Ronald L. Drake, Esq. D.C. Watch D.C. Against Slots 1. VLTs are similar to slot machines. Games of chance are displayed on a video screen and a computer system randomly picks winning numbers. Under the proposal, VLTs will be overseen by the D.C. Lottery. 2. The proposed entertainment complex would include a hotel, banquet facility, underground parking, retail shops, restaurants, multiplex movie theater, bowling alley, "kid zone," special events showroom, and a video lottery terminal area. 3. "App." refers to Petitioner's separately bound appendix filed with this brief. 4. David Argo Y. D.C. Board of Elections & Ethics ("BOEE" ), Civil Action No. 4740-04, Transcript of Hearing (June 29, 2004) at 172-173 ("While I agree that the law does ... permit the initiative to contain a nonbinding policy statement, the law does not require that that policy statement be a part of the summary statement"; "[T]he board's responsibility is to prepare a true and impartial summary statement ... and I believe that [the final bullet point] creates prejudice in favor of the measure."). 5. Category 3 circulators included individuals who may be "shy" about approaching people or who get tired. July 27 Tr. at 302. Williams estimated that approximately 10% of his circulators fell into Category 3, but circulators changed categories daily. July 27 Tr. at 144-45. 6. The circulators' affidavit that was part of the petition also clearly provided a "NOTICE TO CIRCULATORS," warning circulators that "[a]ny person who shall tender any form of compensation to anyone in consideration of their signature upon any initiative or referendum petition; and/or make false statements or representation shall, upon conviction, thereof, be fined not more than $10,000 or be imprisoned for not more than one (1) year, or both." Exhibit 7, Tab 2 at 2. 7. The Board considered challenges in each of the following categories: (1) challenges to sheets which allegedly contained more than one name and address for the petition circulator, Decision at 20 [App. 118]; (2) challenges to sheets on which the circulator's name, address, or signature was missing or incomplete or was alleged to have been altered, id. at 20-21, 23-24 [App. 118-19, 121-22]; (3) challenges to sheets which did not state the dates of circulation or the date on which the circulator's affidavit was signed, id. at 21-23 [App. 119-120]; (4) challenges to sheets which allegedly contained "marks" for signatures without a supporting affidavit from the circulator, id. at 24-25 [App. 122-23]; and (5) challenges to sheets for which there were specific allegations or testimony that materially false statements had been made on the circulator's affidavit (primarily involving testimony from a limited number of circulators that they were not personally present for the circulation of sheets for which they signed the supporting affidavits), id. at 28-34 [App. 126-132]. 8. It is not clear whether the Board only struck the petitions signed by the 67 circulators "associated" with Stars & Stripes identified in the first two pages of Attachment 3 to Alice Miller's August 5 memorandum to the Board or the additional 8 identified on the next two pages of the attachment. See [App. 75-78.] 9. In determining the sufficiency of a submitted petition, the Board reviews the petition sheets for various formal and substantive requirements and conducts either a comprehensive individual check of the validity of all the signatures or a bona fide random statistical sample to ensure that the signatories are District voters. D.C. Code § 1-1001.16(o)(1); Citizens Against Legalized Gambling, 501 F. Supp. at 788. In the event of a third-party challenge to the petition, the Board may receive evidence and subpoena witnesses in order to resolve the challenge, with the challengers bearing the burden of proof of invalidity. 10. The standard applicable to economic regulatory activity is inappropriate for review of agency action seeking to regulate, and ultimately restrict, core political speech. Lebron V. WMATA, 749 F.2d 893, 897 n.7 (D.C. Cir. 1984) (holding, in a case regarding allegedly false speech, that "we do not defer to the agency in cases such as these [where the facts are readily perceived by the Court.]. `When the executive or the administrative process abridges constitutional rights, it is subject to closer scrutiny than otherwise."') (citation omitted). 11. E.&., Best v. BOEE, 2004 D.C. App. LEXIS 297 (D.C. June 4,. 2004) (rejecting interpretation of statute and regulations to permit refusal to count Green Party primary votes) ; Harvey v. BOEE, 581 A.2d 757 (D.C. 1990) (invalidating regulation that foreclosed consideration of evidence that petition signatory was in fact a registered voter); Dankman v. BOEE, 443 A.2d 507 (D.C. 1981) (en bane) (rejecting interpretation of regulations as inconsistent with plain language); Kamins, 324 A.2d at 187 (rejecting interpretation of statutory provisions governing printing of ballot as basis for refusing to count write-in votes). 12. The Board commented that it was "aware that this matter is a very controversial one, that there has been considerable press coverage in the print media, on television and on the radio... there have been many allegations reported in the press against Initiative 68." See July 26 Tr. 187. The Washington Post and the Washington Times published editorials vigorously opposing video lottery terminals in the District of Columbia. The Washington Post waged a particularly aggressive anti-Initiative 68 campaign involving multiple editorials, including its June 12, 2004, editorial headlined "Gambling's Crack Cocaine. Washington D.C. television and radio news outlets also ran inflammatory and misleading stories about Initiative 68, often relying on statements made by opponents of the Initiative. 13. Significantly, the Chairman's oral statement of the Board's decision described Williams' training statements somewhat differently. According to the Chair, "Mr. Ross [Williams] testified that he trained individuals to describe the initiative as involving education and healthcare, and to use the approach of describing the initiative in this fashion if an individual happened to be resistant to the idea of gambling. Gambling, of course, is the primary purpose underlying the initiative as presented, but Mr. Ross r Williams] testified - and it was confirmed by other witnesses - that, in fact, he trained individuals to mention the gambling portion, and if an individual happened to be resistant to the idea, to then follow it up with that it involved education, that it involved health care, and so forth." Aug. 3 Tr. at 18 [App. 64]. Notwithstanding the Board's contrary conclusion, on its face, there is clearly nothing objectionable about Williams' statements, as described in the oral statement of the Board's decision. The varying descriptions of what Williams allegedly said to circulators during his training sessions, however, underscore the danger to core First Amendment values involved in having a government agency censor political speech or make fine distinctions parsing acceptable and unacceptable language used in the heat of a political campaign. This is especially true with respect to oral statements for which there is no precise record and only testimony reflecting the general recollections of interested parties. Indeed, that is precisely why the First Amendment generally forecloses the State from any role in this process, except perhaps at the periphery involving clearly fraudulent or false statements. See Brown v. Hartlage, 456 U.S. at 60-61. 14. Under the Board's reasoning, even a T-shirt with the words "Sign Up! For Gambling" would be false or misleading since the Initiative, even if passed, could be vetoed by Congress. 15. See Decision at 44-45 [App. 142-143] ("The brochures displayed the development project, and touted 1500 new permanent jobs, opportunities for D.C. entrepreneurs, and a charitable trust to fund a literacy program for D.C. Public School children"; "[T]he Board found that, although the language in the brochures may have been carefully crafted to favorably highlight presumably ancillary benefits of the initiative, if passed, the Board nevertheless agrees with the Proponent that the brochures, which speak to what the Initiative may `help create' do not state in any way that Initiative Measure No. 68 guarantees or provides for a hotel, multiplex theater, restaurants or charitable trust. The Board ... concluded that the speech of the circulator to citizens on the street which either accurately explains the guaranteed provisions or benefits of the initiative in an attempt to persuade a voter, to sign, or speculates what ancillary benefits may result from the initiative is protected speech for First Amendment purposes. It is permissible to talk about how the initiative might affect them personally, how it might affect their local area, their group or local economy. What a circulator cannot do is misrepresent as a guaranteed provision or benefit of an initiative one which is not guaranteed in the initiative. Accordingly, the Board rejects the challenge to the brochures."). 16. See Decision at 36-37 [App. 134-35] ("Based on the evidence presented, the Board finds that the challenged T-shirt, sales pitch and associated communications made to potential signers that revenue from the initiative would be used for schools and health care, as well as other disparate communications, constituted misrepresentations of Initiative No. 68, and were therefore in violation of the attestation in the circulator's affidavit that prohibits making of false statements regarding the Initiative."). 17. Of course, a resident circulator is free to do more than, act as a witness and can actively engage voters and take their signatures in addition to teaming with non-residents in order to satisfy their evidentiary function. But the law only requires the resident circulator to perform evidentiary duties, and allows even residents who are shy, inarticulate, or otherwise reluctant to engage in one-on-one dialogue in a hostile environment to participate in and facilitate core political speech and activity by working together with others. Cf. July 27 Tr. at 302 (some "Category 3" resident circulators are "shy"). 18. Even if resident-circulator predominance and control could be read into the law as a requirement, the failure to comply with that subsequently crafted rule, unlike perjury in the affidavits themselves, does not raise doubts as to the validity of the signatures themselves and hence it would .be "stand[ing] on form rather than substance" to "deny the persons who signed these petitions the chance to have their signatures count." Citizens Against Legalized Gambling, 501 F. Supp. at 790.. Under the Board's own regulations, even a complete failure of the "presence" obligation as to some signatures on a sheet does not invalidate all other signatures on the sheet, notwithstanding any implication such partial default has regarding the affidavit. 3 DCMR § 1009.7. 19. And even Buckley did not endorse such a justification as sufficient for residency requirements, but rather declined to reach the issue as it had not been pressed on appeal. 525 U.S. at 197. 20. Finally, even aside from the substantive First Amendment validity of imposing added burdens on resident circulators, the new burdens in this case were imposed after the fact with no "fair warning" of what would be required of resident circulators and are fatally vague as to what level of activity would satisfy the predominance and control requirement. Buckley v. Valeo, 424 U.S. 1, 41-42 (1976) (holding that the "use of so indefinite a phrase as `relative to' a candidate fails to clearly mark the boundary between permissible and impermissible speech"). Regardless of whether the Board or the City Council could craft a sufficiently precise and justified rule expanding the duties of resident circulators, the manner in which the Board's new rule was defined and imposed here is more than sufficient to sustain an as-applied challenge under the First Amendment. 21. The Board retracted its previous criticisms of two resident circulators, and found that two others (Diggs and Inabinet) had complied with their "presence" obligations." Decision at 29 n.28, 32 n.33, & 33 n.36 (App. 127, 130, 131]. 22. Although the individual circulators questioned testified that they had complied with the "in the presence" requirement as to some of their sheets, because the witnesses were generally unable to identify the specific properly obtained sheets the Board rejected all of the sheets signed by such circulators. Decision at 29 [App. 127]. 23. Indeed, even as to the rumored "signing party," the testimony failed to confirm any such activity other than a minor amount by circulator Campbell and the testimony actually showed that upon hearing the rumor Stars & Stripes personnel were emphatic in telling circulators not to engage in such activity. See Decision at 35 (upon hearing rumor, non-resident "T.J." told circulator Darnell not to falsify signatures) [App. 133]. Not one witness personally participated in or even saw any "signing party." 24. While their behavior may make, it slightly more difficult to verify the signatures on the sheets they did not witness, it does not intrinsically call into doubt the genuineness of those signatures. Cf. 3 DCMR § 1009.7 (failure to comply with "presence," and hence affidavit, requirement as to some signatures on a sheet does not invalidate all signatures on that sheet). And there are certainly alternative sampling measures that could be used to verify such signatures. 25. PCI's Paparella testified that "the petition itself is a tremendous training tool.... [T]he one in D.C. is probably the best" because all the elements required by law are explicitly on the petition form and affidavit. July 28 Tr. at 334. 26. Williams' appropriate understanding of the requirements of D.C. law were confirmed by the Board's repeated questioning of him and his testimony that he told resident circulators that they "had to be [in] very close proximity" and "in a position where they could hear the individual to make sure that the individual was saying what they were supposed to say"; that they "had to be with them at all times, and at any signature gathering point, they had to be there"; and that his "instructions were to be with them at every signature gathering." July 27 Tr. at 52-56. And he repeatedly and unequivocally responded yes when he was asked whether he "specifically told them" these instructions. Id 27. Exhibit 17 (Stars & Stripes Circulator Agreement wherein circulators agreed that "I must be present while information and signatures are obtained," that "it is unlawful to forge a signature," that "[a]ny forgery discovered during the signature validity check will automatically be turned over to the proper authorities for prosecution," and that if "any forgeries are found, even one, I will not be paid for any of my signatures") [App. 154]; Exhibit 53 (file of all circulator I.D.s and agreements); Exhibit 7, Tab 3 (Declaration of Witness corroborating, under penalty of perjury, the representations made in petition affidavits); Exhibit 7, Tab 5 (Notice to Petition Circulators stating age and residency requirements, requiring I.D.s, and reminding circulators to witness signatures and not to falsely certify that they witnessed signatures); see also July 26 Tr. at 105 (Towe testimony that Stars & Stripes made "copies of people's drivers license and... had copies of I.D.s of where they lived. We also had an affidavit signed that they did circulate the petition, okay? Now we could compare those with the affidavit they signed to see if they matched" the signatures on the affidavits of the petition sheets.); July 27 Tr. at 405-6, 472 (Grocholski testimony regarding contract that "mentioned the price, it mentioned validity, ... you have to be a D.C. resident, eligible to vote, all that stuff to circulate. So, I would get the actual petitions and the documentation. We insisted on the documentation that the person, ... could show us something, a government-issued ID that they lived in the District and, preferably a secondary piece of ID, such as like a utility bill to show us that they were valid D.C. residents."). 28. Alfonso testified that the Committee changed its name from "Citizens Committee for Jobs, Education and Healthcare" to "Citizens Committee for the D.C Video Lottery Terminal Initiative" after the Committee submitted the revised Initiative on May 28, 2004 to be consistent with the new title of the Initiative. July 28 Tr. at 143. 29. As an additional matter, the Board excluded 61 petition sheets because they lacked the dates between which the signatures were obtained. Decision at 21-22 [App. 119-120]. While the absence of dates was conceded prior to the hearing for most of those petitions sheets, the Board nonetheless should not have rejected them given that it was literally impossible for those sheets to have been circulated outside of the allotted time frame and hence any error was harmless. See Dankman, 443 A.2d at 515 (discussing "harmless error," the need to have paramount concern for innocent signatories, and the avoidance of standing on form over substance). Indeed, Proponents did not receive the revised petition sheet until the same day it was certified, and they submitted all of their sheets months in advance of the 180-day cutoff. Thus, the petition could not possibly have circulated outside of the permissible period. Those sheets represent nearly 400 signatures of voters whose right to petition should not be discarded based on a mere technicality. Indeed, even the Board recognized, Decision at 22 [App. 120], but. did not fully apply, the principle that such error is harmless so long as there are other indicia that the sheet was timely signed. Here the other indicia are the very existence of the signature itself on a sheet that did not exist outside of the allotted time. 30. And while the Board's interests in the integrity of the initiative process are certainly legitimate in general, such interests bear far less heavily at the petition stage than they do at the actual voting stage. An initiative petition merely offers the voters a choice, it does not predetermine the answer. There is ample time for further debate and discussion among the electorate and hence the scales in every instance should favor inclusion rather than exclusion of the initiative in general and of various signature sheets in particular. Citizens Against Legalized Gambling, 501 F. Supp. at 789 (concerns regarding fair ballot access are "particularly inappropriate in the case of an initiative" where the opponents "are not concerned with increasing voters' opportunity to consider alternative candidates or positions .:. [but] want to restrict determination of an issue by the voters") (emphasis added). The Board's approach denies the voters choice; the proponents' approach merely presents the question to the voters. |
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