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American Civil Liberties Union of the National Capital Area
Motion to intervene in Appeal of Board of Elections and Ethics Order on Initiative 68
August 27, 2004




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RONALD L. DRAKE, et al.,

No. 04-AA-957

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Pursuant to Rule 29(a), the American Civil Liberties Union of the National Capital Area hereby moves for leave to file a brief in this matter as amicus curiae. Four copies of the proposed brief have been lodged with the Clerk.

The petitioner has consented to the filing of this brief. The respondent and the intervenors have declined to consent, principally on the ground that the amicus brief would be filed late. Counsel for amicus apologizes to the Court and the parties for the late filing of this motion and proposed brief, the reasons for which are explained below.

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Points and Authorities

1. Interest of Amicus. The American Civil Liberties Union (ACLU) is a nationwide, non-profit, non-partisan membership organization with more than 400,000 members, dedicated to the protection of individual rights and liberties for all Americans, particularly rights protected by the First Amendment to the Constitution. The American Civil Liberties Union of the National Capital Area is the local affiliate of the ACLU, with nearly 10,000 local members, many of whom are registered voters in the District of Columbia. The ACLU-NCA has often participated in this Court, as counsel for parties or as amicus, in cases presenting important civil liberties issues.1 In particular, the ACLU-NCA has been involved in a number of cases involving the initiative and referendum process in the District of Columbia, a process that is often employed to address issues of civil liberties significance, and whose exercise necessarily involves the right to freedom of speech. See, e.g., Convention Center Referendum Committee v. D.C. Board of Elections and Ethics, 441 A.2d 889 (D.C. 1981) (en banc) (construing scope of initiative exception for "laws appropriating funds"); Hessey v. Burden, 615 A.2d 562 (D.C. 1992) (en banc) (standards for initiative challenges); Committee for Voluntary Prayer v. Wimberly, 704 A.2d 1199 (D.C. 1997) (standards for pre-election constitutional review of initiatives); see also Turner v. D.C. Board of Elections and Ethics, 77 F. Supp. 2d 25 (D.D.C. 1999) (federal court proceeding successfully asserting D.C. voters' right to have their votes on Medical Marijuana Initiative counted and certified); Scolaro v. D.C. Board of Elections and Ethics, 691 A.2d 77 (D,C. 1997), after referral, 717 A.2d 891 (D.C. 1998) (residency requirements for voters who are students).

2. Importance of this case. In arrogating to itself the power to disqualify the otherwise-valid signatures of thousands of registered District of Columbia voters because of allegedly misleading statements made to some of them in the course of persuading them to sign initiative petitions, the Board of Elections has violated the First Amendment rights of the petition's sponsors, of the D.C. voters who circulated the petitions, of the voters who signed them, and of all D.C. voters, who are entitled to express their views by voting on a proposed initiative that has garnered enough valid signatures to qualify for the ballot.

To the best of amicus' knowledge, the Board's action here is unprecedented. As far as we can tell, no elections board has ever sought to disqualify signatures on a ballot measure based on the allegedly misleading content of the sidewalk dialogue between petition circulators and voters. Indeed, preventing government regulation of political speech for truth and accuracy is universally recognized as the core purpose of the First Amendment. Followed to its logical conclusion, the Board's reasoning in this case would authorize the Board to set aside the results of the balloting on an initiative on the ground that proponents had mischaracterized the measure in their communications with voters. It might even authorize the Board to set aside the results of a candidate election on similar grounds. And it would certainly authorize the conviction and imprisonment of citizens who circulate initiative petitions upon a finding that their oral advocacy was "false and misleading." The chilling effect of such a legal regime would truly be glacial.

The ACLU-NCA submits this brief to highlight to the Court the importance of reversing the Board's misguided decision. In doing so, we wish to stress that the ACLU neither supports nor opposes the Video Lottery Terminal Initiative; its merits are not our concern.

3. Cause for late filing. On August 6, a front page story in The Washington Post reported that the Board of Elections had rejected the Video Lottery Terminal Initiative after disqualifying the signatures of 6,977 registered D.C. voters. See Lori Montgomery and Serge F. Kovaleski, Slots Barred From Ballot, The Washington Post, Aug, 6, 2004, at A 1. According to the Post:

By far the most invalidated signatures were collected under the direction of a single subcontractor, Florida-based Stars & Stripes USA Inc. The board concluded that Stars & Stripes USA trained people to illegally misrepresent the initiative as being "about schools and health care," rather than about gambling.

Id. at A7. The Post reported that the initiative's sponsors planned to appeal, "arguing that the elections board had wrongly invalidated signatures gathered by paid petition circulators who emphasized the benefits of gambling, including a fresh flow of revenue for government services." Id. at Al. In another story, the Post also reported that the Board's decision was based largely on these circulators' statements:

[E]lections board Chairman Wilma A. Lewis said some circulators told voters that the initiative is "about schools and health care" rather than about gambling, an illegal misrepresentation of the proposal. Acting for the threemember board, Lewis threw out signatures gathered by those circulators, who accounted for about half the total.

Serge F. Kovaleski and Lori Montgomery, D.C. Slots Backers to Appeal Ruling, The Washington Post, Aug, 5, 2004, at B 1.

Concerned about the obvious First Amendment issues raised by the invalidation of real voters' genuine signatures because of arguably misleading statements made to them in the course of political dialogue, the undersigned counsel called both John Ray, the attorney for the initiative's proponents, and Kenneth McGhie, General Counsel of the Board of Elections and Ethics, on Friday, August 9. While Mr. Ray stated that the news reports were correct, Mr. McGhie emphatically represented-in three separate telephone conversations with the undersigned-that all of the signatures collected by circulators associated with Stars & Stripes had been thrown out on grounds other than the statements of circulators and that no signatures had been thrown out only because the statements of circulators were deemed false and misleading. Based on that representation, the undersigned was reassured and went abroad on vacation on Monday, August 9, without making any plans to have an amicus brief prepared or to seek leave of this Court to file one.

While the undersigned was abroad, the Board's formal written decision (Pet. App. 99151) was released on August 13. A review of that decision, as well as the transcript of the Board's oral ruling (Pet. App. 50-74) and the transcript of the Board's Executive Director's August 5th report and recommendation to the Board (Pet. App. 85-98), made it clear that the alleged false statements were indeed the principal, if not the only, basis for the Board's decision, and that it is impossible to conclude that the petition would have been rejected in the absence of that basis.

The undersigned counsel returned to the United States on the evening of Tuesday, August 24. On August 25 he sought consent to file an amicus brief from all parties, with the results noted above. The proposed amicus brief has been prepared as quickly as possible, considering the effects of jet lag and other matters awaiting counsel's return.

Amicus certainly understands the grounds for the Board's and the intervenors' refusal to consent, but notes that Rule 29 specifically contemplates that an amicus brief may be filed late "for cause shown," and that in such a case the Court "shall specify within what period an opposing party may answer."

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For the reasons stated above, the motion for leave to file a brief as amicus curiae should be granted.

Respectfully submitted,
Arthur B. Spitzer
D.C. Bar No. 235960 
American Civil Liberties Union of the National Capital Area 
1400 20th Street, N. W. #119 
Washington, D.C. 20036 
(202) 457-0800

August 27, 2004

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I hereby Certify that copies of the foregoing Motion of the American Civil Liberties Union of the National Capital Area for Leave to File a Brief as Amicus Curiae, and of the lodged Brief of the American Civil Liberties Union of the National Capital Area as Amicus Curiae, were served by hand delivery, this 27th day of August, 2004, upon:

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

John Ray, Esq.
Stephen L. Neal, Jr. , Esq. Elise Dang, Esq.
Manatt, Phelps & Phillips, LLP 700 12th Street, N.W., Suite 1100 Washington, D.C. 20005

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

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

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

D.C. Watch
c/o Ms. Dorothy Brizill and 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

Arthur B. Spitzer

1. See, e.g., George, Washington University v. District of Columbia Board of Zoning Adjustment, 831 A.2d 921 (D.C. 2003) (discrimination based upon student status); Card v. United States, 838 A.2d 1134 (D.C. 2002) (peremptory jury strikes based upon perceived religious beliefs); Boy Scouts of America v. D.C. Commission on Human Rights, 809 A.2d 1192 (D.C. 2002) (discrimination based upon sexual orientation); Redman v. Kelly, 795 A.2d 684 (D.C. 2002) (discrimination based upon disability); Moorehead v. District of Columbia, 747 A.2d 138 (D.C. 2000) (municipal liability for acts of Special Police Officers); In re Stanley Johnson, 691 A.2d 628 (D.C. 1997) (procedures for involuntary civil commitment); McFarlin v. District of Columbia, 681 A.2d 440 (D.C. 1996) (First Amendment rights of panhandlers); Barry v. Little, 669 A.2d 115 (D.C. 1995) (due process rights of welfare recipients); Foster v. Canan, 661 A.2d 636 (D.C. 1995) (right to trial by jury); Kennedy v. District of Columbia, 654 A.2d 847 (D.C. 1994) (discrimination based upon personal appearance); Dean & Gill v. District of Columbia, 653 A.2d 307 (D.C. 1995) (same-sex marriage).


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