Logosm.gif (1927 bytes)
navlinks.gif (4688 bytes)
Hruler04.gif (5511 bytes)

Back to Video Lottery Terminal Initiative of 2004 main page

Ronald L. Drake,
Reply to DC Court of Appeals on petitioner's letter of September 19, 2004
September 20, 2004

Home

Bibliography

Calendar

Columns
Dorothy Brizill
Bonnie Cain
Jim Dougherty
Gary Imhoff
Phil Mendelson
Mark David Richards
Sandra Seegars

DCPSWatch

DCWatch Archives
Council Period 12
Council Period 13
Council Period 14

Election 1998
Election 2000
Election 2002

Elections
Election 2004
Election 2006

Government and People
ANC's
Anacostia Waterfront Corporation
Auditor
Boards and Com
BusRegRefCom
Campaign Finance
Chief Financial Officer
Chief Management Officer
City Council
Congress
Control Board
Corporation Counsel
Courts
DC2000
DC Agenda
Elections and Ethics
Fire Department
FOI Officers
Inspector General
Health
Housing and Community Dev.
Human Services
Legislation
Mayor's Office
Mental Health
Motor Vehicles
Neighborhood Action
National Capital Revitalization Corp.
Planning and Econ. Dev.
Planning, Office of
Police Department
Property Management
Public Advocate
Public Libraries
Public Schools
Public Service Commission
Public Works
Regional Mobility Panel
Sports and Entertainment Com.
Taxi Commission
Telephone Directory
University of DC
Water and Sewer Administration
Youth Rehabilitation Services
Zoning Commission

Issues in DC Politics

Budget issues
DC Flag
DC General, PBC
Gun issues
Health issues
Housing initiatives
Mayor’s mansion
Public Benefit Corporation
Regional Mobility
Reservation 13
Tax Rev Comm
Term limits repeal
Voting rights, statehood
Williams’s Fundraising Scandals

Links

Organizations
Appleseed Center
Cardozo Shaw Neigh.Assoc.
Committee of 100
Fed of Citizens Assocs
League of Women Voters
Parents United
Shaw Coalition

Photos

Search

What Is DCWatch?

themail archives

No. 04-AA-957

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, ESQUIRE 
DOROTHY A. BRIZILL, 
REVEREND DEAN SNYDER, Interveners.

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 Ethics

Ronald L. Drake, Esquire Attorney at Law 
D.C. Bar No. 338392 
5 P Street, S.W. 
Washington, D.C. 20024 
(202) 682-0223
Intervener, Pro Se

Back to top of page


No. 04-AA-957

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, ESQUIRE 
DOROTHY A. BRIZILL, 
REVEREND DEAN SNYDER, Interveners.

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 Ethics

I. PROCEDURAL STATUS

In their demand for relief in their August 20, 2004-brief, the Proponents demanded that

[T]he 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. Pet.BR., at p.50.

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

[R]emand[ed] the record to the Board for consideration, on an expedited basis, of [(1) whether or not it intends its decision invalidating the Stars and Stripes petitions to rest 'independently' on either class of improprieties found, in particular on the false signings, and '(2) if so, the reasons why.

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

[R]everse and remand the decision of the Board immediately, with directions to proceed to a random sample and, if the random sample cannot be completed by the deadline for submitting the November ballot to the printer, the Court should direct the Board to include Initiative 68 on the ballot, subject to the results of the completion of the process.

Back to top of page


II. ARGUMENT

Proponents 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 Request

Proponents 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 Decision

The 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 Decision

The 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 Signatures

Proponents 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 Redundant

In 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 Itself

Proponents charge the Board with engaging in "unconscionable delay." Proponents err.

Proponents commence their attack on the Board by charging that the Board's

[R]efusal to respond to the Court's two questions expeditiously and its refusal to conduct random sampling threaten to frustrate effective judicial review.

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.

Back to top of page


III. CONCLUSION

For 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;
Ronald L. Drake, Esquire 
D.C. Bar No. 338392 
Attorney at Law 
5 P Street, S.W. 
Washington, D.C. 20024
(202) 682-0223
Intervener, Pro Se

Back to top of page


CERTIFICATE OF SERVICE

I 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
Manatt Phelps & Phillips, LLP
700 12th Street, N.W., Suite 1100 
Washington, D.C. 20005-4075 
Fax (202) 585-6600

Mr. George W. Jones, Jr., Esquire 
Sidley Austin Brown & Wood LLP 
1501 K Street, N.W. 
Washington, D.C. 20005 
Fax (202) 736-8711

Mr. Erik S. Jaffe, Esquire
Law Office of Erick S. Jaffe, P.C. 
5101 34th Street, N.W. 
Washington, D.C. 20008 
Fax (202) 237-8166

Mr. Kenneth McGhie, Esquire 
General Counsel
District of Columbia Board of Elections and Ethics 
441 Fourth Street, N.W. Suite 250
Washington, D.C. 20001 
Fax (202) 628-5952

Ms. Dorothy A. Brizill
1327 Girard Street, N.W. 
Washington, D.C. 20009-4915 
Fax (202) 234-6982

Rev. Dean L. Snyder 
333 A Street, N.E. 
Washington, D.C. 20002 
By Hand

Mr. Arthur B. Spitzer, Esquire 
American Civil Liberties Union of the National Capital Area 
1400 20th Street, N.W., #119 
Washington, D.C. 20036
Fax (202) (to be determined) 

Ronald L. Drake

Back to top of page


Send mail with questions or comments to webmaster@dcwatch.com
Web site copyright ęDCWatch (ISSN 1546-4296)