Pendleton v. D.C. Bd. of Elections & Ethits

• Decision Date: 02 August 1982
• Docket Number: No. 79-1270.,79-1270.
• Citation: 449 A.2d 301
• Parties: Florence PENDLETON, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, De Long Harris, Jr., Intervenor.
• Court: D.C. Court of Appeals

449 A.2d 301

Florence PENDLETON, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent De Long Harris, Jr., Intervenor.

No. 79-1270.

District of Columbia Court of Appeals.

Argued March 23, 1982.

Decided August 2, 1982.

Mortimer F. Coward, with whom John T. Fowler, Washington, D. C., was on the brief, for petitioner.

William H. Lewis, Washington, D. C., for respondent.

De Long Harris, Washington, D. C., for intervenor.

Before NEBEKER, MACK and FERREN, Associate Judges.

MACK, Associate Judge:

Petitioner, an unsuccessful write-in candidate for an Advisory Neighborhood Commission seat in the November 1979 election, successfully appealed from a decision of the Board of Elections and Ethics which credited two contested write-in votes to intervenor De Long Harris, Jr. and certified him winner of the election by a one-vote margin. See Pendleton v. District of Columbia Board of Elections and Ethics, D.C App., 433 A.2d 1102 (1981) (per curiam) (reversing Board of Elections decision which credited write-in ballot marked "Mr. Long" to intervenor, declaring election a tie, and remanding to Board for implementation of tiebreaking procedures). This division granted respondent's motion for rehearing and we now vacate our prior decision and affirm the ruling of the Board of Elections and Ethics that declared intervenor De Long Harris, Jr. winner of this election.¹

I.

Petitioner and intervenor were the sole registered write-in candidates² in the November 1979 election for the office of Member of Advisory Neighborhood Commission No. 5C, Single Member District No. 07. On November 21, 1979, the Board certified the results of the election, declaring intervenor the winner. The results were as follows: De Long Harris, Jr. — 39 votes; Florence Pendleton — 37 votes; other write-in ballots — 23 votes. Pursuant to D.C.Code 1978 Supp., § 1-1111(a) [now recodified as D.C. Code 1981, § 1-1315(a)] petitioner, as an unsuccessful candidate, filed a petition requesting that the Board conduct a recount of the election results. A recount was conducted by an elections administrator, and petitioner successfully challenged one write-in ballot previously credited to intervenor: the ballot was marked "Mr. Long." Petitioner was unsuccessful in her challenge of a ballot marked "Harris," and for some reason not clear on the record, an additional ballot previously credited to intervenor was lost during the recount. Thus, the results of the recount as certified by the elections administrator to the Board were: De Long Harris, Jr.-37 votes; Florence Pendleton 37 votes; Mr. Long, Ernest Kinard, Frank Smith, Rick Sowell and Betty Benjamin-1 vote each; and blanks (unvoted)-22 ballots.

Intervenor then filed with the Board a petition to reconsider the decision of its elections administrator to deduct from intervenor's totals the ballot marked "Mr. Long." Petitioner asked the Board to review the administrator's decision as it related to the ballot marked "Harris." During a public session of the Board, the parties presented their arguments, and the Board concluded that the persons casting ballots for "Harris" and "Mr. Long" intended to vote for De Long Harris, Jr. On appeal petitioner challenges the Board's decision to credit these ballots to intervenor.

II.

As the parties on appeal dispute the proper scope and nature of our review of the Board's decision in the instant case we first address this question.

We derive our authority to review elections from D.C.Code 1978 Supp., § 1-1111(a) and id. 1980 Supp., § 1-1111(b) [now recodified as D.C.Code 1981, § 1-1315(a) and (b) 1. Subsection (a) of the statute provides for action by the Board of Elections and Ethics upon timely request of a candidate, while subsection (b) provides for review of elections by this court upon petition of a voter.

Subsection (b) of the statute provides in relevant part:

Within seven days after the Board certifies the results of an election, any person who voted in the election may petition the District of Columbia Court of Appeals to review such election. In response to such a petition, the court may set aside the results so certified and declare the true results of the election, or void the election in whole or in part. To determine the true results of an election the court may order a recount or take other appropriate action, whether or not a recount has been conducted or requested pursuant to subsection (a). . . . The court shall void an election only for fraud, mistake, . . . or other defect, serious enough to vitiate the election as a fair expression of the will of the registered qualified electors voting therein . . . . The decision of such court shall be final and not appealable. [Emphasis supplied.]

In Gollin v. District of Columbia Board of Elections and Ethics, D.C.App., 359 A.2d 590, 594 (1976) we held that our purpose in reviewing elections under subsection (b) was to insure that no voter was disenfranchised through improper interpretation by the Board, that the results certified by the Board are in fact the true results, and that the Board performed its duty in a constitutionally and statutorily correct manner. The Gollin court further held that in reviewing an election pursuant to this subsection

"reliable evidence . . . should be searched to effectuate the voter's wish and preserve the franchise." . . . [T]he standard to be applied in determining intent is not one of absolute sureness. Reasonable certainty is enough. In attempting to discern intent, moreover, this court is mindful that a prime purpose of Congress in formulating the District of Columbia Elections law was to keep the franchise open to as many people as possible. [Id. at 595 (quoting Petition of Fifteen Registered Voters of the County of Sussex, 129 N.J.Super. 296, 301, 323 A.2d 521, 523, petition for certification denied, 65 N.J. 577, 325 A.2d 711 (1974)) (citations omitted).]

Subsection (a) of this statute, on the other hand, provides in relevant part that "[i]f within seven days after the Board certifies the results of an election, any qualified candidate at such election petitions the Board to have the votes cast at such election recounted in one or more voting precincts, the Board shall order such recount" (emphasis supplied). As the petitioner in the instant case, a candidate, appeals from a Board decision rendered pursuant to a recount request, we must determine the nature and scope of our review of action taken by the Board under this subsection of the statute.

The Board argues that we should apply the Gollin standard and require that its decision be based upon reliable evidence from which the true intent of the voter can be ascertained with reasonable certainty. Intervenor, on the other hand, contends that the Board was required to base its decision on "reliable, probative and substantial evidence" of record pursuant to D.C. Code 1978 Supp., § 1-1509(e). In response the Board argues that the substantial evidence test is inapplicable because the District of Columbia Administrative Procedure Act [id. §§ 1-1501 et seq.] excludes "proceedings in which decisions rest solely on . . . elections" from the definition of a contested case and hence from the substantial evidence requirement. See id. §§ 1-1502(8)(C), -1509(e). Although at first blush the arguments might appear to pose a distinction without a difference, we need not draw fine line definitions between "reasonable certainty" and "substantial evidence"; the statute provides the solution as to both the standard and scope of our review.

Agency decisions in contested cases must be based upon "reliable, probative, and substantial evidence" of record. Id. § 1-1509(e). The code defines a contested case as "a proceeding before . . . any agency in which the legal rights, duties, or privileges of specific parties are required by any law . . . to be determined after a hearing . . . before an agency . . ." Id. § 1-1502(8). However, this subsection specifically excludes "proceedings in which decisions rest solely on inspections, tests, or elections" from the definition of a contested case.

The Board's decision in the instant case is an order in a contested case within the meaning of the Administrative Procedure Act. The recount conducted by the Board's elections administrator and the subsequent appeal from this decision to the Board were proceedings in which the agency determined, as required by law,³ the legal rights of the candidates following a hearing. See D.C.Code 1978 Supp., § 1-1111(a). While the decision in the instant proceeding obviously involves an election it cannot be said to be a decision resting solely upon an election and therefore excluded from the definition of a contested case. The legislative history of the "elections" exception and the nature of the instant proceeding lead us to this conclusion.

What constitutes a proceeding in which a decision rests solely on an election is a question of first impression not only in this jurisdiction but also among courts which have construed the corresponding subsection of the federal Administrative Procedure Act. See 5 U.S.C. § 554(a) (1976).⁴

The legislative history of this subsection in the District of Columbia Administrative Procedure Act reveals that proceedings such as elections, tests and inspections were excluded from the definition of contested cases because they are "traditionally . . . not susceptible to adjudicatory process." Griffin, The District of Columbia Administrative Procedure Act: Its History, Provisions, and Interpretation, 61 GEO. L.J. 575, 592 (1973) (footnote omitted) (citing S. REP.No. 1581, 90th Cong., 2d Sess. 11 (1968); H.R.REP.No. 202, 90th Cong., 1st Sess. 5 (1967)). Similarly, the legislative history of the corresponding subsection of the federal Act reveals that these categories of proceedings were exempted because "those methods of determination do not lend themselves to the hearing process." S.REP No 752, 79th Cong., 1st...