SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Civil Division WAYNE TURNER, Plaintiff V. C.A. No. 98-E077 Judge Huvelle DISTRICT OF COLUMBIA BOARD Calendar 9 OF ELECTIONS AND ETHICS, Defendant ORDER The Court has before it Defendant's Motion for Summary Judgment plaintiff's apposition thereto, and Plaintiff’s Expedited Motion for Summary Judgment. This case arises from the District of Columbia Board of Elections and Ethics' ("Board") disqualification of several petition sheets circulated in an effort to place a voter initiative - the Legalization of Marijuana for Medical Treatment Initiative of 1998 - on the November 3, 1998 General Election ballot. 1/ The initiative failed to qualify for placement on the ballot because it failed to pass the random sample test at the citywide level. Plaintiff contends that the initiative could ______________________________ 1/ D.C Code § 1-1320(1) (1992) provides, in pertinent part, that if the Board refuses to accept an initiative petition, the Superior Court shall review the action and issue an order requiring the Board to accept the petition if the petition is "legal in form" and the "proper statements of circulators prescribed in subsection (h) of this section" are attached survive if the Board is ordered to accept the excluded petition sheets. The petition sheets rejected by the Board were those circulated by Tanya Robinson. Ms. Robinson bad collected approximately 289 petition sheets containing 4,641 signatures, The Board rejected Ms. Robinson's petition sheets because she had stated in her Circulator's Affidavit that her address was 1250 Owens Place, N.E., #1, but on her official voter registration card, her residence address was listed as Mt. Vernon Shelter, 1000 7th Street, N.W., while 1250 Owens Place was listed as her mailing address. District law requires that a circulator state her residence address in the Circulator's Affidavit. 2/ The Board contends that Ms. Robinson's failure to do so invalidated the over four thousand signatures that she bad collected. The Board's position appears to be that its decision to reject Ms. Robinson 5 petition sheets was mandatory, not discretionary, under the statute. This Court cannot agree with __________________________ (..continued) to the petition. Id, This Court has expedited review of this case pursuant to § 1-1320(1). ______________________ 2/ In an affidavit affixed as Exhibit C to Defendant's Motion for Summary Judgment, Ms. Robinson explains that since 1995, she maintained her principal residence at 1250 Owens Place, but that she moved into the Mt. Vernon Women's Shelter in December 1997, at which time she advised the Board of her change of residence address. Prior to circulating the petition sheets, Ms. Robinson attempted to verify the residence address listed in the Board's records and found that, according to a list labeled "current" as of January 13, 1998, her residence 2 This interpretation of the relevant statute, D.C. Code § 1- 1320(h)(2)(B) (Supp. 1998) states that “[e]ach petition sheet for an initiative or referendum measure shall contain an affidavit, made under penalty of perjury, in a form determined by the Board and signed by the circulator of that petition which contains the following; , , , [t]he residence address of the circulator, giving the street number . . . .” Id., see also 3 DCMR § 1003.6(b) (1996). However, D.C. Code § 1-1320(k)(1) (1992) sets forth the grounds upon which the Board shall refuse to accept a petition, and these do not include failure to include the residence address in the circulator’s affidavit. The grounds for exclusion under § 1-1320(k)(1) include, in pertinent part, “(D) [t]he petition sheets do not have attached to them the statements of the circulators as provided in subsection (h) of this section; or (E) [t]he petition was circulated by persons who were not qualified registered electors of the District of Columbia pursuant to subsection 9h0 of this section.” Id. Neither of these subsections requires the exclusion of the petition sheets circulated by Ms. Robinson. Ms. Robinson’s statement, although imperfect, was attached to the petition sheets as required by § 1-1320(k)(1). Further, there is no allegation here that Ms. Robinson is not a qualified registered elector, as mandated by _______________________ (. . continued) address was 1250 Owens Place. 3 § 1320(k) (1) CE). The term "qualified registered elector” is defined as a registered voter who resides at the address listed on the Board's records." E 1-1302(21) (Supp. 1998) - Ms. Robinson is a registered voter who resides at the address listed in the Board's records - the Mt. Vernon Women's Shelter, See Deft, Mtn. Ex. C. The Board nevertheless references 3 DCMR § 1009.10 (formerly 3 DCMR § 1607.6 (1994)) in support of its position. 3 DCMR § 1009.9(g) states that a signature on a petition shall not be counted as valid if the circulator was not a "duly registered voter. Section 1009.10 defines the term "duly registered voter" as "a registered qualified elector who is registered to vote at the address listed on the petition as shown on the Board's voter registration records . . ." However, to the extent that this regulation sets more stringent standards for the circulator's statement than the statute, see § 1- 1320(k) (1) (E), it contravenes the policies underlying the statute and is inconsistent with the statutory scheme, See Harvey v. District of Columbia Bd. of Elections and Ethics, 581 A.2d 757, 759 (D.C. 1990) (holding regulation invalidating nominating petitions circulated by persons not qualified registered electors to be inconsistent with statutory scheme where statute included similar provision with respect to initiative and referendum 4 not nominating petitions) Both the Court of Appeals and the District Court for the District of Columbia have emphasized the need to construe the initiative laws liberally so that the will of the electorate may be expressed. The purpose of the Initiative Act is "to permit the electorate to vote on appropriate issues,” Dankman v. District of Columbia Bd. Of Elections and Ethics, 443 A.2d 507, 514-15 (DC 1981), and "the overall tenor of the Initiative Act . . prevents 'harmless error' in the signature collection process from vitiating the validity of the petitions." Id. at 515. Further, the United States District Court opined that it is "particularly inappropriate" to restrict determination of an initiative by voters: "[ legislation should be liberally construed to extend its operation rather than to reduce it." Citizens Against Legalized Gambling v. District of Columbia Bd. of Elections and Ethics, $01 F. Supp. 786, 789 (D£D,C. 19S0). To accept the Board's argument would, in effect, cause a harmless error regarding an address of the circulator to result in silencing the voices of over 4,600 voters, contrary to the clear import of both Dankman and Citizens Against Legalized Gambling. The only case relied on by the Board, Orange v. District of Columbia Bd. of Elections and Ethics, 629 A.2d 575 (D.C. 1993), is inapposite. Orange involved an appeal from the Board's 5 decision to disqualify a candidate for a special election to fill the Chairperson of the Council position in the District of Columbia. Id. at 576E77, The Board had disqualified the candidate because the Board found that 1,293 of 4,129 signatures submitted by the candidate were invalid. Id. at 577. The candidate challenged the Board's decision to exclude 589 of the 1,293 excluded signatures due to the fact that the addresses on the petition did not match the addresses on the Board's records, as mandated by D.C. Code § 1-1312(o) (3) - Id. In upholding the statute, which the candidate had challenged on constitutional grounds, the Court of Appeals noted that the "very reason § 1- 1312(0) (3) was enacted was the Board's inability otherwise, within the narrow time limit for validating challenged petitions to determine efficiently whether a name and address among the potential thousands on a nominating petition represents an actual registered voter,” Id. at 578 (citation omitted). The Court also referenced the statute's purpose of preventing election fraud, which it achieved by providing a simple, inexpensive, and accurate way of verifying that the signatures belonged to registered voters. Id,. at 581. 3/ In its motion here, the Board has reiterated the policy concerns underscored in Orange, ______________________ 3/ The Court rejects defendant's argument that § l-l212(o) (3) applies to initiative petitions as well as to nominating petitions. On its face, § 1-1312(o) applies only to 6 contending that the requirement that a circulator state her residence address in her Circulator's Affidavit "is essential to enable the Board to readily identify registered voters, to determine their eligibility to nominate for particular District offices, and to calculate ward distribution requirements for ballot measure petitions," Deft. Mtn. at 8. However, Orange is not relevant to the present case. In Orange, the issue was the constitutionality of imposing on the Board the burden of validating the voting registrations of potentially hundreds or thousands of people. There, the Court upheld a statute aimed at determining, with efficiency, the validity of the thousands of signatures on a petition. Here, in contrast, the issue is the difficulty of confirming the registrations of only a few circulators In contrast to the large number of signers of any given petition, the number of circulators is miniscule, as evidenced by the fact that Ms. Robinson, one circulator, collected the signatures of over 4,600 individuals, It is a much simpler task to verify the address of one circulator than of 4,600 voters. Moreover, that task is simplified because a circulator, unlike the people whose signatures she collects, must enter her unique "Voter Registration Number" on the Circulator's Affidavit, thus enabling the Board to access immediately records pertaining to that __________________ (..continued) nominating petitions. see also Plaintiff's Reply at 1-3. 7 circulator As a result, requiring the Board to accept Ms. Robinson's petition sheets does not impair the policies stated in Orange of preventing election fraud and ensuring that the signers of the sheets and Ms. Robinson herself are registered voters. For the reasons stated above, it is this 3rd day of September, 1998, hereby ORDERED that plaintiff's motion for summary judgment is GRANTED and the Board is ordered to accept and process the petition sheets submitted by Tanya Robinson, and IT IS FURTHER ORDERED that defendant's motion for summary judgement is DENTED. (signed) Ellen Segal Huvelle Judge Signed in Chambers 8 Copies to: Matthew S. Watson, Esq. 1701 Q Street N.W. Washington, D.C. 20009 Alisa A. Wilkins, Esq. Gaffney & Schember 1666 Connecticut Avenue, N.W. - Suite 225 Washington, D.C. 20009 Kenneth J. McGhie, Esq. General Counsel D.C. Board of Elections & Ethics One Judiciary Square 441 Fourth Street, N.W. - #270 Washington, D.C. 20001 9