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No. 04-AA-957
IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE, Petitioner, Oral Argument Scheduled for: September 8, 2004 On Petition for Review of Decision of District of Columbia Board of Elections and Ethics Response of Intervener Ronald L. Drake, Esquire, to Petitioner's September 19, 2004 Letter Motion To Compel Certain Action by Board of Elections and EthicsRonald L. Drake, Esquire Attorney at Law No. 04-AA-957 IN THE DISTRICT OF COLUMBIA COURT OF APPEALS CITIZENS COMMITTEE FOR THE D.C. VIDEO LOTTERY TERMINAL INITIATIVE, Petitioner, Oral Argument Scheduled for: September 8, 2004 On Petition for Review of Decision of District of Columbia Board of Elections and Ethics Response of Intervener Ronald L. Drake, Esquire, to Petitioner's September 19, 2004 Letter Motion To Compel Certain Action by Board of Elections and EthicsI. PROCEDURAL STATUSIn their demand for relief in their August 20, 2004-brief, the Proponents demanded that
On August 31, 2004, this Court denied the motion of Ester Baxley, et al., to intervene, or, in the alternative, to appear as amicus curiae. Thereafter, on September 8, 2004, the Court heard oral arguments. On August 31, 2004, this Court granted the motion of American Civil Liberties Union to enter an appearance as amicus curiae. On Monday, September 13, 2004, the day before the D.C. Primary Election, this Court
On Tuesday, September 14, 2004, the Board of Elections and Ethics conducted the District of Columbia 2004 Primary Election. Subsequent thereto the Board has been involved in tabulating and publishing the election results, as well as the necessary postelection stand-down procedures. On Thursday, September 16, 2004, Ester Baxley, et al., through counsel, submitted a letter to the Board accompanied by approximately 308 pages of purported declarations. In that letter (a copy of which is attached hereto) Ester Baxley, et al., seek to instruct the Board on how the Board should respond to this Court's two questions. On information and belief, Proponents' financiers are also funding counsel for Ester Baxley, et al. To date, the Board has not sought nor authorized further evidentiary submittals or arguments from Proponents or Challengers. The Board has not informed the parties that it is seeking further evidentiary submittals or arguments from any nonparties to the Challenge to Initiative 68. Late Sunday afternoon, September 19, 2004, at approximately 4:26 P.M., Proponents faxed to this Challenger a copy of Proponents' letter motion to this Court. In that letter motion, Proponents continue their post-oral argument against the Board's decision. In addition, the Proponents urged this Court to revise the Court's own September 13, 2004 Order. The Proponents now seek an Order from this Court to
II. ARGUMENTProponents motion is without merit and should be summarily denied. Further, the fact that Proponents filed this motion on a Sunday afternoon, with the request for an immediate circulation among the judges, gives the appearance of shortcutting the process, and denying the Board, which is not open on Sunday, a reasonable opportunity to frame a response. However, this Challenger, who was in on this Sunday, addresses the Proponents' assertions. It was the Proponents, not this challenger, who knowingly submitted more than 30000 invalid signatures to the Board, without notifying the Board of the invalidity. It is, at the least, questionable for the Proponents to now complain that the Board must take a reasonable amount of time in wading through that mass of fraud as it prepares its response to the Court's inquiry. A. The Board Is Entitled To Reasonable Time To Address The Ester Baxley, Et Al., September 16, 2004 RequestProponents appear to assert that the Board must rush its consideration of the Baxley request. Proponents err. The Court may draw the reasonable inference that the Proponents favor the continued efforts of Ester Baxley, et al., to intervene, either through this Court, and when rebuffed here, then with the Board. Thus, Proponents cannot now be heard to complain if the Board requires sufficient time to carefully examine all 308 declarations, filed this past Thursday. The declarations are not verified. Thus, that careful examination must include (1) validation of the names, (2) validation of addresses, (3) validation of signatures (4) validation of registered voter status, (5) locating each signature among the 56044 signatures among the 3869 petition That careful examination should also include contacting each of the purported declarants to determine the circumstances and facts surrounding each signature. This effort alone could be expected to take several days. Surely, Proponents, through their proxies, Ester Baxley, et al., expected nothing less when the Baxley request was filed with the Board. B. The Board Has No Need For An Alternative Basis For Its DecisionThe Proponents assert that "the Board is still searching in vain for an alternative basis for its initial flawed decision." Proponents err. Proponents must be clairvoyant or have information to which they should not be privy if they know that the Board is in fact searching for anything. The question of whether the Board's initial decision was flawed is now before this Court. That is' not being decided by Proponents, the Board or this Challenger. The Board's task is to answer the Court's two questions. The task of Proponents and Challenger is to not impede the Board in any way, including with motions that require response. Proponents' unilateral pronouncement that the Board made a "flawed decision" does little to advance the Board's response to the Court's inquiry. C. Evidence of Pervasive And Massive Fraud Undergird The Board's DecisionThe Proponents assert that there is neither evidence nor rationale to support the Board's decision to disregard all the signatures collected by Stars and Stripes circulators. Proponents err. The Board disallowed only those signatures it could without doubt attribute to Stars and Stripes. In fact, the Board had every reason to disallow thousands more due to the pervasive fraud, Proponents have reason to know, since they employed Stars and Stripes, that many, many more of the circulators than were identified by the Board were in fact Stars and Stripes. Proponents know that the owner of Initiative Plus testified to the Board that the out-of-town circulators were in fact circulators. Thus, the Board should have, and still should disallow all of the signatures in which the out-of-town circulators circulated the petitions. The Board was incredibly generous in allowing those signatures. D. The Board Has No Statutory Or Regulatory Authority To Conduct A Random Sample When There Are Less Than The Required Number Of SignaturesProponents assert the Board must conduct a random sample when there are less than the required number of signatures. Proponents err. Proponents' charge that the Board has engaged in dilatoriness and that the Board's refusal to conduct a pre-mature random sample stands as its own refutation. The Board is not authorized to conduct a random sample, unless the number of apparent signatures of registered voters exceeds the minimum required. 3 DCMR, Sec. 1007.12. Notwithstanding, the Proponents now demand a random sample, even while knowing that the Board has already determined that the number of apparent signatures of registered voters does not exceed the minimum required. In the words of Amicus referred in another context, Proponents are attempting to push the Board into an ultra vires act. That the Board must not allow to happen. E. Proponents' Argument As The Purported Validity Of Certain Signatures Is RedundantIn their motion, the Proponents continue their futile argument in support of the invalid signatures. Proponents err. Proponents continue their ad hominem attack on Board staff for being unable to serve many of the Proponents purported circulators. Proponents then opine, without so much as any supporting evidence, that a "professional process server would not have been stymied by any such minor obstacle [lack of accesss and no apartment number)". Proponents characterize these as a "commonplace obstacle." But-it was the Board and the Challengers, who were seeking access to those purported circulators. This shows that Proponents really were not out in the field, not even to contact their own purported circulators. Proponents did nothing to assist the Board in obtaining service of process. Proponents did nothing to assist Challengers in their effort to contact those purported circulators as Challengers prepared their case for hearing. Proponents attempt to bootstrap non-access in a shelter into a denial of participation in the electoral process further shows that Proponents have not sought access. Proponents should know, for the Board and Challengers know, that shelters will not even disclose whether a named person resides there. And that is a "commonplace obstacle?" If Proponents really wanted the Board to have access to those purported circulators, is it not reasonable to believe that Proponents could not have made them available? Proponents could have, but did not, seek out their own shelter-residing purported circulators and make them available to the Board for questioning. Having clearly and intentionally thwarted and frustrated the Board's access to those purported circulators, Proponents cannot now be heard to complain that the Board cannot rely on those signatures, especially in the face of such massive and pervasive fraud. If ever there were a justifiable case for applying the missing witness rule, this is it. F. Proponents' Charge Against The Board Of Unconscionable Delay Is Unconscionable In And Of ItselfProponents charge the Board with engaging in "unconscionable delay." Proponents err. Proponents commence their attack on the Board by charging that the Board's
It was the Proponents, not the Board who submitted defective initiative language to the Board earlier this year. It was the Proponents, not the Board, who elected to forego the allowed 180 days to circulate the petitions, and chose to circulate them in 4 1/2 days. It was the Proponents, not the Board, that brought in professional out-of-state circulators, and then sought to characterize them as assistants, coaches, helpers, helpees, subordinates to non-professional resident watchers. In view of the foregoing, how can the Proponents now charge that the Board had in mind no "independent" basis for excluding Stars and Stripes signatures? How can the Proponents charge the Board with "run(ning] out the clock by failing to respond? How can the Proponents charge the Board with seeking to "frustrate both effective judicial review and the will of the voters?" It is the Proponents who have been contumacious throughout this proceeding. The Court should never forget that it was the Proponents who charged that "when you look at all this, you get the impression that you're in the Soviet Union.", whatever that statement was supposed to mean. It was the Proponents, not the Board that urged the Board to unleash an investigation of the Challengers. III. CONCLUSIONFor all the foregoing reasons, Challenger urges the Court to deny Proponents' motion, uphold the Order of the District of Columbia Board of Elections and Ethics, and deny ballot access to Initiative 68. Respectfully submitted; CERTIFICATE OF SERVICEI hereby certify that I served a copy of the foregoing on all other parties and/or counsel, either by fax or by hand, as shown below, this September-20, 2004, addressed as follows: Mr. John L. Ray, Esquire Mr. George W. Jones, Jr., Esquire Mr. Erik S. Jaffe, Esquire Mr. Kenneth McGhie, Esquire Ms. Dorothy A. Brizill Rev. Dean L. Snyder Mr. Arthur B. Spitzer, Esquire Ronald L. Drake |
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