Opposition

Dear Opposers:

Alan Blinder reports in The Washington Times, http://tinyurl.com/c9p3n5m, that Tim Day, a former candidate for the Ward 5 city council seat, has left the Republic party. In his campaign, Day made charges against former Councilmember Harry Thomas, Jr., that began the process that exposed Thomas’ theft of city funds intended for youth sports programs. But now, although he says he is still conservative, "he has concerns about the party’s national platform." Day had earlier endorsed Anita Bonds, the chairwoman of the state Democratic Party, in the special election to fill the at-large councilmember seat to which the Democratic Party had appointed her to fill temporarily. Binder quotes Day as saying in support of Bonds that "if the Republican Party in the District of Columbia wants to make positive change, they will hop on board those who will champion true ethics reform."

Why can’t the local Republican party find candidates who have some loyalty and devotion to Republican party principles? If the local party can’t find anyone, why doesn’t the national party step in and encourage some candidates? Surely there are some Republicans who live in and are registered to vote in Washington who don’t think that Democratic party officials who gained prominence as disciples of Marion Barry are the champions of true ethics reform. One-party rule just hasn’t worked well in the District, but to end it at some point the Republican party needs to step up and actually present a opposition.

Gary Imhoff
themail@dcwatch.com

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DC Citizens Should Control DC Elections
Dorothy Brizill, dorothy@dcwatch.com

This past Friday, while reviewing online the draft agenda for the council December 18 legislative meeting, I learned that Chairman Mendelson had again placed an emergency declaration and an emergency act on the agenda "at the request of the mayor" that would alter the petition circulation requirements for nominating petitions in District elections (PR 19-1124, "Board of Elections Petition Circulation Requirements Emergency Declaration Resolution of 2012," and PR 19-1058, "Board of Elections Petition Circulation Requirements Emergency Amendment Act of 2012." In his memo to his council colleagues regarding the proposed legislation dated December 13, Mendelson notes that he has enclosed "a letter from the Chair of the Board of Elections, Deborah Nichols, expressing support for the emergency measure." In the December 12 issue of themail, however, I had written that I was extremely concerned that, "Without any public notice or discussion, the District’s Attorney General and mayor are seeking to secure council approval of emergency legislation that would change the District’s elections laws that have been in place for more than twenty years. Both other elected officials who would be affected by this change (councilmembers, ANC commissioners, and school board members) and the three members of the Board of Elections were not informed of this proposed emergency legislation, which would allow out-of-state residents to play a major role in the nominating process for DC elected officials." My comment in themail was based on the fact that just that morning I had attended the BOE’s monthly meeting and had an on-the-record exchange with the Board regarding the Libertarian lawsuit and the proposed legislation.

After learning of Ms. Nichols’ letter to Mendelson, at 8:00 a.m. Friday morning a sent an E-mail to three District employees — Kenneth McGhie, General Counsel to the BOE; Agnes Moss, Public Information Officer to the BOE; and Denise Toliver, Chief of Staff to Chairman Mendelson — asking for a copy of the letter. In the E-mail, I wrote that, "If Mr. Mendelson’s letter to councilmembers is correct regarding Ms. Nichols’ letter, could you please enlighten me as to how the BOEE board members, and Ms. Nichols in particular, made such a dramatic change in their position with regards to the pending legislation. As you know, I attended the Board’s monthly meeting on Wednesday and raised the issue of the emergency legislation, which had initially been on the council’s December 4th agenda. The transcript of that meeting, as well as individuals who attended, will clearly attest to the fact that the Board indicated that: 1) it had not discussed the issue or taken a formal position on the legislation at a public meeting, as required by District law and 2) the Board was hopeful that the legislation would be removed from the council’s agenda so that the Board, which is responsible for administering the District’s election laws, could better review the matter and address concerns." In addition to sending the E-mail, I also called the BOE and the Chairman’s office. However, by the close of business on Friday and over the weekend, neither office would provide me with a copy of Nichols’ letter.

One of the things that is most disturbing about the proposed legislation is that DC Attorney General Nathan and his team of lawyers wished to draft a bill without fully understanding the District’s election laws. In letters from the mayor to the council on November 28 and December 4 regarding the proposed emergency legislation, as well as in the emergency bill itself, the current law regarding the circulation of petitions is misstated. Section 2(d) of PR 19-1124, the emergency declaration, states that, "Currently, initiative petition circulators, as well as circulators of petitions for the purposes of nominating candidates for elected office and recalling elected officials, are required to be qualified electors of the District of Columbia. . . ." In fact, the District has two different laws governing the circulation of candidates’ nominating petitions and petitions for initiatives and referenda. Under DC Code 11.08(b)(2), "only registered, qualified electors [voters] of the District of Columbia are authorized to circulate nominating petitions of candidates for elected office." However, DC Code 1-1001.16(h)(5) states that, "the circulator of the initiative or referendum petition sheet is a resident of the District of Columbia and at least 18 years of age," not necessarily a registered voter.

Also troubling are the efforts by the Attorney General’s office to misinform the mayor and the council regarding court decisions on this important issue. Repeatedly, for example, the OAG has suggested to councilmembers that the District must alter its laws regarding the circulation of nominating petitions because of a US Supreme Court decision in Buckley v. American Constitutional Law Foundation, Inc., No. 97-930, 525 US 182 (1992). In that case, the Supreme Court declared unconstitutional, on First Amendment grounds, a requirement that initiative petition circulators be registered voters. As a result of that decision, the District amended its election law in 1999, and passed DC Law 13-64, so that the circulator of an initiative or referendum petition didn’t have to be a registered voter. That change in District law brought the District fully into conformance with the Supreme Court’s decision.

Like in DC, the state board of elections in Virginia is being sued by the Libertarian Party regarding state requirements for the circulation of petitions. In his decision in July of this year, US District Judge John A. Gibney upheld the Libertarian complaint in the Virginia case. Judge Gibney noted that Virginia has an interest in maintaining the integrity of elections, but the crux of his decision was that, "The Virginia Board of Elections fails to allege a single instance of voter fraud involving a nonresident." That decision is being appealed. However, in the District of Columbia, in the slots video lottery terminal case in 2004, both the Board of Elections and the DC Court of Appeals found that there was a pervasive pattern of election fraud committed by nonresident "professional" petition circulators. DC could defend against the Libertarian suit quite easily by showing the fraud that nonresident petition circulators had committed in our jurisdiction.

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In Favor Both of the Bill and of a Public Hearing
Arthur Spitzer, artspitzer@gmail.com

Regarding DC Council Bill 19-1058, which would eliminate the requirement that people who circulate ballot petitions must be DC residents, I agree with Dorothy that there’s no emergency. The bill should be put over to 2013 and a public hearing should be held. But then the council should go ahead and eliminate that requirement, because the alternative will be that DC will lose the lawsuit challenging it that has already been filed, and will have to pay attorney’s fees to the Libertarian Party’s lawyers. Many federal courts have already ruled that similar requirements elsewhere are unconstitutional. A person’s First Amendment right to circulate petitions doesn’t stop at the border of the state, county, or city in which he or she lives.

But a public hearing would not necessarily be a waste of time. Perhaps there are good suggestions that could be made for better ways to hold petition circulators accessible for testimony, and accountable for their actions, whether they live in DC or elsewhere. It’s worth thinking about. There is a reason why legislation should not be enacted without public hearings.

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DC Water Ratepayers vs. Cheh and McDuffie
Alma H. Gates, ahg71139aol.com

In the July 22 issue of themail, I suggested that DC utility companies need to come to the table in zoning cases to ensure existing infrastructure is not overwhelmed. This specifically addressed the proposed development of the McMillan Reservoir site and flooding that is currently occurring in Bloomingdale. In a December 15, Washington. Post article, "Mayor Gray, DC Water against Council Plan to Reimburse Northwest Flood Victims," http://tinyurl.com/bttdrg6, Tim Craig points out that many homeowners in Bloomingdale and LeDroit Park experienced damage following the June 29 storms that caused water and sewage to seep under doors in many homes. Craig points out that some of the damage is not covered by homeowner’s insurance and that Councilmembers Cheh and McDuffie have proposed legislation that would pass homeowners’ expenses on to all DC Water ratepayers in the form of a new fee.

Craig’s article notes that some of the affected basements may have been constructed without the necessary DCRA permits and plumbing was installed without the required backwater valves that prevent sewers from flowing back into the home when the sewer system is overwhelmed by storm water. Now, Bloomingdale and LeDroit Park residents who circumvented the necessary permits are asking all DC ratepayers to pay for their omissions. Councilmembers Mary Cheh and Kenyan McDuffie appear uninformed and ill advised to move forward legislation on Tuesday that would require ratepayers to assume the role of insurance underwriter for illegal basement conversions.

The mayor and DC Water General Manager oppose the proposed legislation for the right reasons; and, given the city is on the brink of approving new zoning regulations that would permit the construction of matter-of-right internal Accessory Dwelling Units (ADU) there are apt to be more illegal conversions. This new zoning proposal allows anyone wishing to convert unused basement space to a dwelling unit to do so without having to obtain Special Exception zoning relief from the Board of Zoning Approval. The requirement to obtain the required permits and a license remains in place, but it is clear that time and the expense of acquisition have caused some to circumvent the system. Special Exception zoning relief has ensured DCRA involvement in the permitting process as well as sign-off from DC Water for the installation of new water closets.

The Office of Planning’s proposal to allow matter of right construction may be tantamount to opening Pandora’s Box on future flooding in the city. Given the reluctance of some Bloomingdale and LeDroit Park residents to obtain proper permits for basement conversions it is likely other sections of the city will suffer the same flooding as sewer systems become overwhelmed. In spite of assurance from the Office of Planning, the proposal to make ADUs matter of right appears ripe for future damage claims that some Members of Council feel are everyone’s responsibility.