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Correspondence between the City Council and the Board of Elections and Ethics on holding a special election
February 14–April 4, 2000




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Board of Elections and Ethics to Chairman Linda Cropp, February 14, 2000 Board of Elections and Ethics to Councilmember Kevin Chavous, March 15, 2000 Chairman Linda Cropp to Board of Elections and Ethics, April 4, 2000


Monday, February 14, 2000

The Honorable Linda Cropp, Chairperson,
Council of the District of Columbia
441 4th Street, NW
Washington D.C. 20001

Dear Chairperson Cropp:

The Board of Elections and Ethics ("the Board") has reviewed "School Governance Charter Amendment Act of 2000," ("the Act") as it was adopted and passed by the Council on February 1, 2000. The Board would like to take this opportunity to express its dire concerns regarding this Act and recommend a suitable legislative alternative. In reviewing the Act, it is the opinion of the Board that the measure is improper for submission to the electorate in its current form as a valid charter amendment. Specifically, the measure encompasses alternative provisions-which is inconsistent with the charter amending procedure codified at D.C. Code §1-205, and D.C. Municipal Regulations title 3 §1801. The Board recommends employing the Advisory Referendum, to accomplish Council's aim.

This act does not constitute a proper measure the purpose of ratifying an amendment to the Charter. Rather, the Council wishes to place both the "Nine Member Elected Board of Education Charter Amendment Act of 2000,@ and the "Five Member Appointed Board of Education Charter Amendment Act A 2000"Titles I and II of the Act, respectively before the electorate for ratification. By offering the electorate differing proposals for the School Board's composition, the Council has effectively placed the charter amending proceeding in a posture that was never intended by the enabling statute, §303(c) Home Rule Charter Amendments Act. When prefaced with a brief history of the Charter and the amending process, the Board's determination becomes more lucid.


In 1973, the United States Congress decided to grant the District of Columbia some form of self-government — thus the creation of the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198, 88 Stat. 785 (1973). ('`Home Rule Act").

Congress also wanted the approval of the District citizens for this new form of government. Congress recognized that whatever entity was responsible for ensuring a fair and democratic referendum process (i.e. adequate notice, period for comment, public hearings. conducting election, and certifying results) should be an independent and separate entity from the executive and legislative branch of government. Because the D.C. Board of Elections was already a functioning independent entity in the District of Columbia under the District of Columbia Election Act of 1955, the Board of Elections was charged with this responsibility.1

Congress also empowered the District's Council — with ratification from a majority of the electorate — to amend the Home Rule Act with respect to Title IV of the act, which embodies the District's Charter. The committee recognized that the amending process should be a separate provision so that it could only be amended by an act of Congress and not the District's Council:

[I] think the amending process should be identified outside the charter, to make the amending process unamendable ... It would make it simpler and more understandable if we pull a couple of things that are now in the charter, that I think ought to be out of it. and be identified as part of the congressional statutories.

Id. at 626-7 (statement of U.S. Rep. Donald Fraser). The committee as a whole voted to separate the Charter Amending Process and designate it as Title III of the act. Congress than gave the Board responsibility for promulgating rules for ratifying any proposed Council amendments to the Charter in §303 of Title III.

The Charter Amendment Procedure is the vehicle for amending any part of Title IV of the District of Columbia Self-Government and Governmental Reorganization Act, Pub. L. No. 93-198. 88 Stat. 785 (1973) (hereinafter referred to as "the charter"). This process begins when the Council passes an act to amend a portion of the Charter. D.C. CODE §1205(a). In the instant case, the Council does not leek to enact substantive law; rather, the Council seeks to place the question of what substantive alternative should ultimately be employed as the charter amendment.

Moreover, title III of the measure saliently purports to supersede the Board's congressional delegation of authority by directing the Board to place Titles I and II of the act on the November 2000 general election ballot. This provision runs contrary to the congressional intent which enabled the charter amending process. In sum. the charter amendment procedure is ill suited for the legislative activity at issue here because the amending procedure does not provide for various s alternatives for a charter amendment; rather. the procedure calls for submission of a single act.

Not to be confused with the citizen initiated referendum, the charter amendment referendum process does not provide for conflicting measures; on the other hand, D.C. CODE § 1-1320(s) provides for such instances in the case of initiatives and citizen initiated referendums. This situation notwithstanding, there does exist a statutory mechanism by which the Council may place the question of how the structure of the Board of Education is to be changed, if at all, before the voters of the District of Columbia. This mechanism is D.C. Code §1-229(b), which provides that A[a] special election may be called by resolution of the Council to present for an advisory referendum vote of the people any proposition upon which the Council desires to take action."


It is difficult, at present, to imagine an issue that merits an advisory referendum vote more than that of school governance. As several Council members have themselves attested, the Council has been unable to reach consensus on this important and controversial issue and, understandably desires that the electorate-the entity with the greatest stake in the matter-play a major role in deciding which course of action is to be taken. The Charter makes clear, however, that the role of the electorate in the Charter Amendment Procedure is to ratify (or not, as the case may be) the will of the Council as it is expressed in an act passed by that body. The present scenario presents a Council intent on improving the School Board Governance, but unable to decide exactly how to do so. Therefore, the Council has decided to delegate a legislative function to the electorate which is impermissible.

That point being made, there is no obstacle whatsoever to the Council engaging in efforts to gauge in some manner the public's sentiments concerning any proposed changes to the Board of Education, and then taking these sentiments into account in any act it passes. Indeed, not only does D.C. Code §1229(b) establish that this may be done, Chapter 19 of Title 3 of the D.C. Municipal Regulations, entitled "The Advisory Referendum Process," sets forth the details concerning how it may be done. All that must occur in order to begin this process is the transmission of a resolution2 from the Council to the Board which conforms to D.C. Code §1-229(a) and the Board's regulations governing the Advisory Referendum Process. I have enclosed a copy of these regulations for your review.

In sum, the Board respectfully recommends that the Council: 1. reconsider submitting the School Governance Charter Amendment Act of 2000 to the Board as the act intended to commence the Charter Amending Procedure, and; 2. consider utilizing D.C. CODE §1229(b) to call a special election for an advisory referendum vote. The Board, of course, stands ready and willing to not only conduct this process, but also to answer any questions you may have with respect thereto.

Ben Wilson
Board of Elections & Ethics

1. District of Columbia Self-Government: Markup on H.R. 9056 Before the Full House Comm. on the District of Columbia, 93rd Cong. 573 (statement of Michael Senger, House Legislative Counsel).

2. There are several advantages to using a resolution to call a special election for an advisory referendum vote. One implication of using a resolution is that — unlike acts of the Council, which pursuant to D.C. Code §47-392.3 must be presented to the D.C. Financial Responsibility and Management Assistance Authority for review — resolutions need not be so presented. The Council may also specify in the resolution the date on which the special election to present the referendum shall be conducted. Hence, the referendum could conceivably go before the voters during the May 2, 2000 Presidential Preference Primary Election.

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March 15, 2000

Councilmember Kevin Chavous
Chairman, Education, Libraries, and Recreation
441 4th Street, N.W
. Washington, D.C. 20001

Dear Councilmember Chavous:

This is a response to your March 6th letter requesting a Special Election to be scheduled on a proposed change to the Home Rule Charter.

In order for the Board to schedule a Special Election for a Charter Amendment proposal, it would be necessary to amend Title 3 DCMR Chapter 18 of the Board's regulations. The Board has discussed this matter and is prepared to modify the regulations pursuant to the Council's request. However, the Board is concerned that the Council be fully advised of the cost, logistics and other administrative issues associated with scheduling a special election this year.

First, as you know, scheduling a Special Election this year will increase the number of citywide elections from three to four during calendar year 2000. This will be the first time a Special Election will be held during a Presidential Election year where three elections are already scheduled. Moreover, in the past, Special Elections have historically generated an extremely low voter turnout. In fact the last two citywide Special Elections the Board was mandated to conduct in July of 1997 and December of 1997 resulted in a turnout of 5.5% and 7.5% respectively. The respective cost per voter for each of these Special Elections was $1728 and $10.89.

Second, a Special Election would involve an expenditure in the neighborhood of $350,000.00 and $400,000.00. At this time the Board does not have the funds for this expenditure and would have to request supplemental funding in order to cover the total projected cost. A projected fiscal impact statement that addresses the specific costs associated with the conduct of a Special Election is attached.

Third, the Board is also cognizant of the need to attract 1100 - 1200 pollworkers necessary to assist with the election. As you are aware many of the city's pollworkers are senior citizens who enjoy working with the Board, but have personal commitments that may entail summer vacation plans between the two already elections scheduled to be conducted on May 2n' and September 12, 2000. Stated simply, recruiting an adequate number of pollworkers in the middle of the summer holiday period may pose a problem.

Finally, consideration must be given to the reality of potential election schedule conflicts that the Board may encounter. During the period of June 12th through July 17th, the Board anticipates intense involvement in the Petition Filing and Challenge Periods for the September Council Primary. Simultaneously, from June 26th through September 11th, the Board will be addressing the start of that same process for candidates in the various election contests preparing to obtain ballot access for the November Presidential General Election. As noted above, throughout this period staff members will be required to recruit and train pollworkers and perform clean-up activities from the previous election, while also making preparations for the September Election which involves among other activities, servicing the voting equipment, completing in-house inventory, and ordering election supplies. Nevertheless, the addition of a Special Election to this clearly intense schedule is workable, provided that the Board is given the proper level of funding, adequate staffing and ample notice to allow for sufficient planning.

In sum, if the Council decides to proceed with a Special Election for the proposed Charter Amendment the Board will adjust the regulations to permit its occurrence. However, for the reasons noted herein the funding appropriation must be adequate to meet the Board's mandate. Please be advised this Special Election will be conducted with the same level of integrity and professionalism the Board has been traditionally known to deliver.

We would appreciate an early confirmation of the Council's intent to enable the Board to proceed in a timely manner.

Benjamin F. Wilson


cc: Alice P. Miller, Executive Director
Kenneth R. McGhie, General Counsel

Fiscal Impact of Conducting a Special Election in the June/July 2000 Timeframe


Ballots — one Citywide $50,000
Election Workers — (est. 1,100) 122,050
Staff Augmentation & Overtime 5,000
Precinct Supplies (Ballot boxes, etc.) 10,000
Advertising (Publication of Specimen Ballot in Newspaper) 3,000
Postage (Notification to all registered voters) 72,600
Intra-District Support: 50,000

Security — OPM, etc.


Drivers — DPW

Communications (Precinct Telephones) 15,000
Equipment Rental: 27,000



Tables & Chairs, etc.

Facilities: 15,000




Estimated Total — Fiscal $370,650

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April 4, 2000

Ms. Alice Miller
Board of Elections and Ethics
441 - 4th Street, N.W.
Suite 250 North
Washington, D.C. 20001

Dear Ms. Miller:

This is to request that a special election be scheduled as soon as possible to allow the electorate to vote on Act 13-295, the School Governance Charter Amendment Act of 2000.

Thank you for your assistance in this matter.

Linda W. Cropp

cc: All Councilmembers
Charlotte Brookins-Hudson, General Counsel
Phyllis Jones, Secretary to the Council
Honorable Anthony Williams, Mayor
Constance B. Newman, Vice-Chair, D.C. Financial Authority

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