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Baach, Robinson & Lewis
Brief in Appeal of Board of Elections and Ethics Order on Initiative 68
August 26, 2004

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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, 
v. 
DISTRICT OF COLUMBIA, BOARD OF ELECTIONS AND ETHICS, Respondent, 
and 
RONALD L. DRAKE, ESQ., et. al, Intervenors.

On Petition for Review of the District of Columbia Board of Elections and Ethics

Jeffrey D. Robinson, Esq.*
Duane K. Thompson, Esq.
Ripple L. Weistling, Esq.
Baach Robinson & Lewis PLLC
1201 F Street, N.W., Suite 500
Washington, D.C. 20004-1225
(202) 833-8900
(202) 466-5738 (facsimile)
Counsel for Proposed Intervenors

Brief for Proposed Intervenors Bobbie D. Diggs, Louis Dukes, Gloria Dukes, Louise Best, Carroll Jamison, Diana Kay, Robin Pugh, Trina Butler, Pamela Humphrey, Ester Baxley, Dorenda Canty, Elizabeth Partridge, Charlotte Smallwood, Sarada Mitchell, Felda Thompson and Gregory Ward in Support of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative

LIST OF PARTIES

1. Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative, represented by:
George W. Jones, Jr.
Sidley Austin Brown & Wood LLP 1501 K Street, N.W. Washington, D.C. 20005
Erik S. Jaffe
Law Office of Erik S. Jaffe 510130 Street, N.W. Washington, D.C. 20008
John Ray
Manatt, Phelps & Phillips, LLP One Metro Center, 700 12th Street, N.W., Suite 1100 Washington, D.C. 20005-4075

2.  Respondent District. of Columbia Board of Elections & Ethics, represented by:

Kenneth J. McGhie, General Counsel Alice Miller, Acting General Counsel Terri Stroud, Staff Attorney D.C. Board of Elections and Ethics 441 4th Street, N.W., Suite 270 Washington, D.C. 20001

3. Intervenor:

Ronald L. Drake, Pro Se 5 P Street, S.W. Washington, D.C. 20024

4. Proposed Intervenor:

Dorothy Brizill, Pro Se Executive Director DC Watch, 1327 Girard Street, N.W. Washington, D.C. 20009

5. Intervenor: 

Reverend Dean L. Snyder, Pro Se Chairman, DC Against Slots 333 A Street, N.E. Washington, D.C. 20002

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TABLE OF CONTENTS

ISSUES PRESENTED 
STATEMENT OF THE CASE 

I. INTRODUCTION 
II. STATEMENT OF FACTS 
III. SUMMARY OF ARGUMENT 
IV. ARGUMENT 

A. Intervenors' Activities in Circulating and Signing the Petition Are Entitled to the Highest Degree of Constitutional Protection 
B. The Board's Decision Rejecting Intervenors' Signatures and Petition Sheets is Subject to Strict Constitutional Scrutiny 
C. The Board's Decision Rejecting Intervenors' Signatures and Petition Sheets Cannot Withstand Strict Scrutiny

CONCLUSION 

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TABLE OF AUTHORITIES 

CASES

Best v. D.C. Bd. of Elections & Ethics, 852 A.2d 915 (2004)* 
Buckley v. American Constitutional Law Found., 'Inc., 525 U.S. 182 (1999)* 
Citizens Against Legalized Gambling v. D. C. Bd. of Elections & Ethics, 501 F. Supp. 786 (D.D.C. 1980) 
Dunn v. Blumstein, 405 U.S 330 (1972)* 
Harris v. City of Houston, 151 F.3d 186 (5th Cir. 1998) 
Kamins v. D.C. Bd. of Elections & Ethics, 324 A.2d 187 (D.C. 1974)* 
Kramer v. Union Free School Dis., 395 U.S. 621 (1969) 
Meyer v. Grant, 486 U.S. 414 (1988)* 
Storer v. Brown, 415 U.S. 724 (1974)  
U.S. v. Eichman, 731 F.Supp. 1123 (D.D.C. 1990)
Whitton v. City of Gladstone, 54 F.3d 1400 (8th Cit. 1995) 
Williams v. D.C. Bd. of Elections & Ethics, 804 A.2d 316 (D.C. 2002)*  

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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,
v. 
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent,
and 
RONALD L. DRAKE, ESQ., et al.,Intervenors.

Oral Argument Scheduled for: September 8, 2004

On Petition for Review of the District of Columbia Board of Elections and Ethics 

Brief for Proposed Intervenors Ester Baxley, Louise Best, Trina Butler, Dorenda Canty, Bobbie D. Diggs, Gloria Dukes, Louis Dukes, Pamela Humphrey, Carroll Jamison, Diana Kay, Sarada Mitchell, Elizabeth Partridge, Robin Pugh, Charlotte Smallwood, Felda Thompson, Charles Thorton and Gregory Ward in Support of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative

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ISSUES PRESENTED

Whether the decision of the Board of Elections and Ethics ("the Board") to restrict Intervenors' constitutional rights by rejecting their signatures and petition sheets, as well as those of thousands of other qualified District of Columbia electors, was sufficiently narrowly tailored to protect a compelling state interest.

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STATEMENT OF THE CASE

On July 6, 2004, the Citizens Committee for the D.C. Video Lottery Terminal Initiative ("Citizens Committee") filed with the Board approximately 56,000 signatures in support of placing "The Video Lottery Terminal Initiative of 2004" ("Initiative No. 68") on the November 2004 ballot. On August 13, 2004, the Board published its written decision rejecting Initiative No. 68. The Citizens Committee timely filed its petition for review of the Board's decision in this Court. Pursuant to Rule 15(d) of the Rules of this Court, Intervenors have moved to intervene in this proceeding on the side of the Citizens Committee. This brief is provisionally submitted along with Intervenors' Motion to Intervene to further the interests of judicial economy and avoidance of undue delay in the adjudication of the matters raised in the Citizens Committee's petition for review of the Board's decision of August 13, 2004.1

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I. INTRODUCTION

Intervenors have moved to intervene pursuant to Rule 15(d) of the Rules of the District of Columbia Court of Appeals. A copy of that Motion, also filed today, is attached hereto and Intervenors incorporate their statements as appended to that Motion. Intervenors are seventeen qualified electors residing in the District of Columbia. Between July 1 and July 6, 2004, Intervenors signed a petition seeking to place Initiative No. 68 on the District's November 2004 general election ballot ("Petition"). Petition circulators managed by Stars & Stripes, Inc. ("Stars & Stripes") presented and witnessed the petition sheets that most Intervenors signed. Intervenors Bobbie D. Diggs and Charles Thornton were petition circulators whose activities were managed by Stars & Stripes; they also signed the Petition as D.C. electors.

Intervenors fully understood that the Petition's purpose was to permit voters to decide whether to authorize Video Lottery Terminals ("VTLs") in the District of Columbia. They were not misled. There has been no showing of any defect with respect to any of their signatures.

Despite the absence of any particularized showing of defect, the Board decided not to count certain Intervenors' signatures, along with thousands of additional signatures on petition sheets circulated by persons "associated with Stars & Stripes." The Board's decision deprived Intervenors and other Petition signers of their fundamental constitutional rights to petition the government and to participate in the political process. This decision is unconstitutional and contrary to established District of Columbia law. It must not be allowed to stand.

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II. STATEMENT OF FACTS

Intervenors adopt and by reference incorporate herein the Statement of Facts contained in the brief submitted by the Citizens Committee. In addition, Intervenors state as follows:

Twelve of the Intervenors are qualified electors who signed the Petition but whose signatures the Board decided not to count because they were witnessed by circulators "associated with" Stars & Stripes. Each of these Intervenors has signed a statement declaring that he or she signed the Petition understanding that VLTs are like slot machines. Intervenors also understood that Initiative No. 68 would lead to job creation and recommends that the money raised be used for education and healthcare; but no one told them that Initiative No. 68 guaranteed that the District would use the money for such purposes. Each of these Intervenors also declares that he or she was not misled into signing the Petition, but to the contrary, wants his or her signature counted.

These Intervenors come from different wards and different walks of life. They include poll workers, government, legal and newspaper personnel and retired persons. Some would patronize VLTs were they authorized in the District, while others signed the Petition because they believe that revenues from District residents will continue to flow to surrounding jurisdictions unless VLTs are authorized in the District. Whatever their reasons for signing the Petition, the common thread is that Intervenors all are qualified electors who knew what they were doing and who strongly believe that the Board's decision violated their fundamental constitutional rights.

The stories told by these Intervenors illustrate the arbitrary results of the Board's decision-making. For example, Bobbie D. Diggs was a circulator who worked in association with Stars & Stripes. The Board made no finding of any specific defect with the petition sheets that Mr. Diggs circulated. In fact, the Board heard Mr. Diggs' testimony and found that his conduct was appropriate. (Decision at 29, n.28.) Despite its finding, the Board rejected 413 valid signatures on the petition sheets Mr. Diggs circulated, including his own, merely because he had been associated with Stars & Stripes.2

Intervenor Charles Thornton, a qualified elector in the District of Columbia residing in Ward 5, acted as a petition circulator associated with Stars & Stripes. He also signed the Petition. The Board never discussed Mr. Thornton, much less made a finding that he had engaged in any improper activity or that his signature was improper. Nevertheless, the Board rejected the petition sheets that Mr. Thornton circulated, containing 36 valid signatures, and refused to count his signature toward the number required to place Initiative No. 68 on the ballot.

Gloria and Louis Dukes tell a story that further illustrates the arbitrariness of the Board's actions. A married couple, the Dukes signed the Petition at nearly the same time in the same location, July 1, 2004 at the Eastover Shopping Center. However, Mr. Dukes signed a petition sheet circulated by Shamika Mack while Mrs. Dukes signed one circulated by Bobby Johnson. The Board counted Mrs. Dukes' signature but did not count Mr. Dukes' signature because Ms. Mack was associated with Stars & Stripes.

Like Mrs. Dukes, Intervenors Elizabeth Partridge, Charlotte Smallwood, Sandra Mitchell, and Felda Thompson had their signatures counted by the Board. They were, however, effectively disenfranchised and restricted in their right to freely associate with other Petition signatories because Initiative No. 68 would fail to meet the 17,599-signature requirement if the Board's decision not to count thousands of other signatures witnessed by circulators associated with Stars & Stripes is allowed to stand.

Intervenors Carroll Jamison, Pamela Humphrey, Ester Baxley, and Dorenda Canty are also qualified electors in the District of Columbia residing in various wards. They each signed a petition sheet circulated by a circulator associated with Stars & Stripes.3 The Board made no specific finding of any defect regarding any of the signatures of these Intervenors. Similarly, the Board made no finding of any specific defect with any of the petition sheets that these Intervenors signed. Nevertheless, the Board rejected their signatures and refused to count them toward the number required to place Initiative No. 68 on the ballot.

Intervenors Gregory Ward and Louise Best present slightly different situations. Each is a qualified elector in the District of Columbia residing in Ward 7. The Board made no specific finding of any defect regarding either of their signatures on the Petition. Nevertheless, the Board refused to count either of their signatures toward the number required to place Initiative No. 68 on the ballot.

Mr. Ward signed the Petition on July 2, 2004. He signed a petition sheet circulated by Stars & Stripes circulator Gwendolyn Squirewell on Grant Street. The Board refused to accept Ms. Squirewell's petition sheets because she asserted her Fifth Amendment right and did not testify.

Ms. Best signed the Petition on July 2, 2004. Ms. Best signed a petition sheet circulated by Stars & Stripes at the Safeway grocery store near Benning Road. However, because the petition sheet she signed bore the circulator signature of Steven Atkins, and Mr. Atkins did not stand behind some of his petition sheets, the Board refused to count Ms. Best's signature toward the number required to place Initiative No. 68 on the ballot.

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III. SUMMARY OF ARGUMENT

In circulating and signing the Petition, Intervenors were engaged in core political activity, activity that is entitled to the highest degree of Constitutional protection. Before the government can take any action adversely impacting Intervenors' activity, it must show a compelling interest. Moreover, any action taken must be narrowly tailored to have minimum impact on the exercise of Constitutional rights. Here the Board utterly failed to meet these requirements. In rejecting the petition sheets and signatures of Intervenors, the Board acted in a wholesale, indiscriminate, and unconstitutional manner that did not even consider the particulars of Intervenors' situations. 

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IV. ARGUMENT

A. Intervenors' Activities in Circulating and Signing the Petition Are Entitled to the Highest Degree of Constitutional Protection.

The United States Supreme Court and other courts that have considered the issue have consistently recognized that the petition circulation process involves core political speech, entitled to First Amendment protection at its greatest. Buckley v. American Constitutional Law Found. Inc., 525 U.S. 182, 186 - 187 (1999); Meyer v. Grant, 486 U.S. 414, 422, 425 (1988); Citizens Against Legalized Gambling v. D.C. Bd. of Elections & Ethics, 501 F. Supp. 786 (D.D.C. 1980); Williams v. D.C. Bd. of Elections & Ethics, 804 A.2d 316, 318 (D.C. 2002). Courts have reached this conclusion because the petition process necessarily involves communication between the circulator and the potential signatory - the circulator needs to persuade the signatory to sign, and thus must make the case, if not for the ultimate success of the initiative, at least that the issue is worthy of presentation to the electorate at large. Meyer, 486 U.S. at 422.

Like the petition circulation process, signing a petition is also the exercise of a fundamental right specifically guaranteed by the language of the First Amendment: "Congress shall make no law ... abridging... the right of the people ... to petition the Government for a redress of grievances." The right to petition the government is fully applicable to the government of the District of Columbia. That right is entitled to the greatest degree of constitutional protection.

Signing a petition is akin to voting, which has long been recognized as a fundamental constitutional right that cannot be restricted unless "the purpose of the restriction and the asserted overriding interests served by [the restriction] ... meet close constitutional scrutiny."' Dunn v. Blumstein, 405 U.S 330, 336 (1972). As with voting, signing a petition is a basic act of political participation. Intervenors, like all citizens, have "a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction." Id. Here that right was trampled by the Board's decision to count some signatures from qualified electors but reject other signatures merely because they were collected by a person associated with Stars & Stripes - even in cases, such as Mr. Diggs', where the Board concluded that the circulator had complied with its rules.

B. The Board's Decision Rejecting Intervenors' Signatures and Petition Sheets is Subject to Strict Constitutional Scrutiny.

Because the activities of Intervenors in circulating and signing the Petition constitute the exercise of fundamental rights, actions of the Board impinging upon those activities must be invalidated unless they can withstand strict constitutional scrutiny. Meyer, 486 U.S. at 422. (any regulation or other restriction on the circulation process necessarily restricts the amount of speech and so must withstand strict scrutiny). Strict scrutiny requires that any restrictions placed on the right to vote "be necessary in order to promote a compelling state interest." Id. at 337 (quoting Kramer v. Union Free School Dist., 395 U.S. 621, 627 (1969)). Further, the restrictions must be narrowly tailored to accomplish their purpose, without imposing a greater restriction on the exercise of the right to vote than absolutely necessary. Buckley v. American Constitutional Law Found., 525 U.S. 182, 192 n.12 (1999) (burdens on speech must be "narrowly tailored"); see Dunn, 405 U.S. at 343 ("[T]he State cannot choose means that unnecessarily burden or restrict constitutionally protected activity."). Strict scrutiny is applicable to the implementation of rules as well as to their articulation. See U.S. v. Eichman, 731 F.Supp. 1123, 1130 (D.D.C. 1990); Harris v. City of Houston, 151 F.3d 186, 198 (5th Cir. 1998); Whitton v. City of Gladstone, 54 F.3d 1400, 1409 - 1410 (8th Cir. 1995).

Courts also weigh the importance of the activity restricted against the purpose accomplished by the restriction. Where the activity directly impacts fundamental rights, efficiency and orderliness concerns become less compelling, and more burdensome procedures will be required if they are necessary to protect those rights. Best v. D. C. Bd. of Elections & Ethics, 852 A.2d 915 (2004).

C. The Board's Decision Rejecting Intervenors' Signatures and Petition Sheets Cannot Withstand Strict Scrutiny.

It is undisputed that the District of Columbia, through the Board, has an interest in regulating the election process so that it is fair, honest and orderly. However, merely showing an interest, even a substantial and compelling one, is not enough to justify a regulation if the means employed restrict exercise of a fundamental right more than is necessary to accomplish the legitimate goal. Dunn, 405 U.S. at 335. In evaluating the means employed, courts look to such factors as whether there are other means to accomplish the same goals that place lesser restrictions on rights. The Board's actions do not meet this test.

The Board rejected the petition sheets circulated by Intervenor Bobbie D. Diggs solely on the basis of its finding that he was "associated with" Stars & Stripes. The Board made no finding that Mr. Diggs had engaged in any wrongdoing, and it made no finding that there was any defect in the petition sheets that he circulated. Indeed, the Board threw out the 413 signatures that Mr. Diggs witnessed despite hearing his testimony in the proceedings below and specifically finding that his conduct was appropriate. (Decision at 29, n.28.) Similarly, the Board rejected the signatures of Intervenors Louis Dukes, Diana Kay, Carroll Jamison, Gregory Ward, Robin Pugh, Pamela Humphrey, Trina Butler, Ester Baxley, and Dorenda Canty without making any finding that there was a defect in their signatures or in the petition sheets they signed.4 Again, the basis for the Board's action was the fact that the circulator whose sheet these Intervenors signed was "associated with" Stars & Stripes.

The Board was certainly not justified in throwing out the signatures of Intervenors and thousands of other electors simply because they were witnessed by Stars & Stripes circulators. The Board attempted to justify this draconian remedy by citing testimony concerning isolated alleged misconduct, but it failed to show any meaningful connection between the cited misconduct and the vast majority of the discarded signatures. The rejection of Intervenor Louis Dukes' signature aptly demonstrates the Board's overreaching. The Board asserts that record evidence showed that the Stars & Stripes circulator who witnessed Mr. Dukes' signature - Ms. Shamika Mack - did not actually circulate the petition sheets she submitted. (Decision at 30). Examination of the testimony the Board cites, however, clearly shows that the witness, Danielle Campbell, mentioned but did not implicate Ms. Mack in any wrongdoing. Rather the testimony showed that Ms. Mack at all times was in the presence of and in earshot of the non-resident assistant who carried the petition sheets that she appropriately signed. (July 26 Tr. at 283-317). At best, the Board misunderstood the only evidence it cited to impugn Ms. Mack. The Board's mistaken indictment of Ms. Mack speaks volumes about how far it had to stretch to find sufficient evidence of wrongdoing to condemn the entire Stars & Stripes effort.

Regulation of elections is permissible to further the legitimate interest in insuring that they are fair and honest, and to protect the democratic process from dissolving into chaos. See Storer v. Brown, 415 U.S. 724, 730 (1974), Best v. D.C. Bd. of Elections & Ethics, 852 A.2d 915 (2004); Kamins v. D.C. Bd. of Elections & Ethics, 324 A.2d 187, 191 (D.C. 1974). Such regulation, however, cannot unnecessarily infringe the `inalienable right' of `each and every citizen' to participate fully and effectively in the political process. Kamins, 324 A.2d at 191. The right to so participate is a "fundamental political right because [it is] preservative of all rights." Id. Here, in the guise of protecting the electoral process from corruption by a limited number of specific wrongful acts, the Board ran roughshod over the constitutional rights of thousands of qualified District electors, including Intervenors.

That some circulators ran afoul of the Board's newly crafted rule that District resident circulators be "in charge" of non-residents assisting in gathering signatures is simply not grounds for rejecting signatures on other petition sheets, especially where there was no showing that the signatures on the rejected petition sheets were collected in violation of this post hoc rule.5 Similarly, that some signatures did not contain the required date cannot be grounds for rejecting signatures where the date was present.6 Finally, that some organizers and circulators engaged in speech that the Board found improper in their efforts to obtain signatures cannot be used to justify the rejection of signatures where there is no showing of taint by the allegedly offending speech.

The only conceivable rationale for the Board's decision to reject each of the signatures on the petition sheets of every circulator shown to have some "association with" Stars & Stripes is mere convenience. Having found some flaws in the practices of Stars & Stripes it was easy for the Board to dispense with further inquiry and simply throw out all the signatures associated with the company. When dealing with the fundamental right to participate in the political process, a decision to disenfranchise thousands of electors because it is expedient does not withstand strict scrutiny. Assuming that it properly found defects in some of the petition sheets circulated by persons associated with Stars & Stripes, the proper, narrowly tailored response of the Board would have been to reject those specific sheets and the signatures they contained. Such a remedy would not have invalidated so many signatures as to keep Initiative No. 68 off the ballot.

The Board's disproportionate sanction in the present case stands in stark contrast to its past recognition of the need to remedy violations of its rules with narrowly drawn measures that address only proven violations. In Williams v. D.C. Bd. of Elections & Ethics, 804 A.2d 316, 318 (D.C. 2002), the Board rejected signatures on petition sheets from three individual circulators - who it found committed the grossest and most blatant types of fraud in the circulating process. This Court upheld the Board's rejection of all of the petition sheets circulated and signed by theses three circulators. Nevertheless, despite the fact that the entire circulating process had been overseen by one of the offending circulators, id. at 320, neither the Board nor this Court suggested that the petition sheets from other circulators, who had not participated in the fraud, should be rejected.

Here, the Board specifically found "no evidence in the context of these proceedings that the Proponents set out to intentionally flout the District's election laws." (Decision at 3). Nevertheless it took the draconian step of rejecting wholesale thousands of signatures. This action is as unconstitutional as it is unprecedented and must not be permitted.

Similarly, even if the advocacy speech engaged in by some associated with Stars & Stripes was a proper basis for rejecting signatures because it constituted fraud - something for which there is no evidence as to any of the Intervenors nor indeed as to any but a miniscule number of complainants - at a minimum the Board would be required to show some link between that speech and particular signatures on petition sheets before rejecting them. The Constitution does not permit the wholesale invalidation of the political process because of some improper speech.

The Board's decision to invalidate thousands of signatures without ever inquiring into the legitimacy of the signatures, or the petition sheet upon which they were placed, simply does not comply with the requirements of strict scrutiny. A much more tailored approach was available that would have protected both the District of Columbia's interest in a well regulated and corruption free electoral process and the fundamental rights of Intervenors and others to participate in the political process.

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CONCLUSION

Intervenors did nothing wrong. Like thousands of other District of Columbia electors, they chose to participate in the political process by circulating and/or signing a petition seeking to place "The Video Lottery Terminal Initiative of 2004" on the November 2004 general election ballot. Despite the absence of any showing that they had engaged in any wrongful conduct, Intervenors, and thousands of other electors, were disenfranchised by the actions of the Board summarily rejecting their signatures and petition sheets. The Board's actions contravened the most fundamental principles of the Constitution and must be overturned.

Respectfully submitted,
BAACH ROBINSON & LEWIS, PLLC
Jeffrey D. Robinson, Esq. (D.C. Bar No. 376037)
Duane K. Thompson, Esq. (D.C Bar No. 376180) 
Ripple L. Weistling, Esq. (D.C. Bar No. 471925) 
Baach Robinson & Lewis PLLC 
1201 F Street, N.W., Suite 500 
Washington, D.C. 20004-1225 
(202) 833-8900
(202) 466-5738 (facsimile)

August 26, 2004

By: Jeffrey D. Robinson

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing Brief for Proposed Intervenors Ester Baxley, Louise Best, Trina Butler, Dorenda Canty, Bobbie D. Diggs, Gloria Dukes, Louis Dukes, Pamela Humphrey, Carroll Jamison, Diana Kay, Sarada Mitchell, Elizabeth Partridge, Robin Pugh, Charlotte Smallwood, Felda Thompson, Charles Thorton and Gregory Ward in Support of Petitioner Citizens Committee for the District of Columbia Video Lottery Terminal Initiative Initiative were served by hand this 26th day of August, 2004 upon the following:

Kenneth J. McGhie, General Counsel Alice Miller, Acting General Counsel Terri Stroud, Staff Attorney D.C. Board of Elections and Ethics 441 4th Street, N.W., Suite 270 Washington, D.C. 20001

George W. Jones, Jr., Sidley Austin Brown & Wood LLP 1501 K Street, N.W. Washington, D.C. 20005

Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C. 5101 34`h Street, N.W. Washington, D.C. 20008

John Ray, Manatt, Phelps & Phillips, LLP One Metro Center, 700 12`h Street, N.W., Suite 1100 Washington, D.C. 20005-4075

Ronald L. Drake, Esq., 5 P Street, S.W. Washington, D.C. 20024

D.C. Watch, c/o Ms. Dorothy Brizill Mr. Gary Imhoff, 1327 Girard Street, N.W. Washington, D.C. 20009

D.C. Against Slots, c/o Rev. Dean J. Snyder, Chairman 333 A Street, N.E. Washington, D.C. 20002

Ripple L. Weistling

1. If the Court denies Intervenor's Motion to Intervene, they respectfully request that this submission be allowed and considered as a brief amicus curie pursuant to Rule 29 of the Rules of this Court.

2. Among the signatures on petition sheets circulated by Mr. Diggs that the Board rejected were those of Intervenors Diana Kay, Robin Pugh, and Trina Butler.

3. Mr. Jamison signed a petition sheet circulated by Thomas Green; Ms. Humphrey signed a petition sheet circulated by Scott Smith; Ms. Baxley signed a petition sheet circulated by Carrie Bryson; and Ms. Canty signed a petition sheet circulated by Thomas Robinson.

4. Louise Best signed a petition with Mr. Atkins listed as the circulator. While invalidating a petition that the circulator has disavowed may be within the Board's limited discretion, the direct and substantial infringement of Ms. Best's constitutional rights caused by rejecting a petition, even in these relatively narrow circumstances, underscores the importance of requiring the Board to identify clear and compelling evidence to justify disenfranchising others for whom there is only the most tenuous connection to wrongdoing.

5. There is considerable question as to the Board's authority and ability to apply this rule to any circulator, as it exceeds its grant of statutory authority, limits the First Amendment protected activity of petition circulation for no compelling reason, and was adopted only after the signature collection process had been concluded. See Brief of the Citizens Committee at pp. 31 - 33.

6. The Board's reliance on the defect in the date on some signatures, see Decision at 22, is perhaps the epitome of emphasizing form over substance in contravention of established District of Columbia law. The Initiative's proponents did not receive the revised petition sheet until the same day it was certified. They submitted all of their sheets months in advance of the 180-day cutoff. Thus, it was impossible for a signature to be placed on the Petition outside of the permissible period.

The Board's critique of the efforts used to advocate for the Petition, and its reliance on that critique to invalidate thousands of signatures, is perhaps the most disturbing aspect of its decision. As shown in the Citizens Committee Brief at pp. 19 - 21, the speech that the Board criticized was constitutionally protected political advocacy. It was entirely improper to rely upon such advocacy to reject any signature, much less rely on it to reject the signatures of electors where there is no showing that they even heard the offending speech much less relied upon it.

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