Scolaro v. DC BD. OF ELECT. & ETHICS, 96-AA-1738.

• Decision Date: 20 March 1997
• Docket Number: No. 96-AA-1738.,96-AA-1738.
• Citation: 691 A.2d 77
• Parties: Patricia SCOLARO, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent, Rebecca Sinderbrand, et al., Intervenors.
• Court: D.C. Court of Appeals

691 A.2d 77

Patricia SCOLARO, et al., Petitioners, v. DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS, Respondent Rebecca Sinderbrand, et al., Intervenors.

No. 96-AA-1738.

District of Columbia Court of Appeals.

Argued January 31, 1997.

Decided March 20, 1997.

Don W. Crockett, Washington, DC. for petitioners.

Kenneth McGhie, with whom Alice P. McCrory-Miller, Washington, DC, was on the brief, for respondent.

Daniel H. Bromberg, with whom Timothy B. Dyk, Barbara McDowell, and Brian Goebel, Washington, DC, were on the brief, for intervenors.

Arthur B. Spitzer, Washington, DC, filed a brief and participated at argument for The American Civil Liberties Union of the National Capital Area as amicus curiae.

W. Neil Eggleston and Laura S. Shores, Washington, DC, filed a brief for Rock the Vote, United States Public Interest Group, and the National Student Campaign for Voter Registration as amici curiae.

Before FERREN and RUIZ, Associate Judges, and GALLAGHER, Senior Judge.

FERREN, Associate Judge:

This case began with a student-community struggle over available parking places. It concerns the resulting desires of large numbers of Georgetown University students to vote in local Advisory Neighborhood Commission (ANC) elections, and the corresponding efforts of many Georgetown community residents to stop them from doing so, on the ground that the students really reside else-where and thus are not "qualified electors" entitled to vote here. The Board of Elections and Ethics accepted large numbers of student voter applications based on each student's signature on the voter registration form just above a warning of severe criminal penalties for knowingly violating eligibility requirements listed there, including residency in the District of Columbia.

Petitioners include two local residents who lost ANC elections to Georgetown University students. Petitioners claim that (1) the voter registration form does not comport with the law; it effectively permits transients to register; (2) the Board in any event had an affirmative duty to scrutinize student applicants carefully, on its own initiative, in order to ferret out those who in fact permanently reside elsewhere; and (3) the Board arbitrarily refused to accept challenges to student voters at the polls, which the election statute permits. Petitioners accordingly ask us to set the two ANC elections aside and to order new ones, based on statutory requirements and constitutional due process.

We reject petitioners' first two contentions but agree that petitioners have proffered enough evidence of irregularities that, depending on the results of some preliminary fact-finding, they may be entitled to evidentiary hearings on their challenges. Because the Board lacks subpoena power necessary to assure attendance required for a productive hearing, we refer this proceeding to the Superior Court for hearing and fact-finding so that we shall be in a position to decide, after the court reports to us its findings and conclusions, whether petitioners are entitled to any relief.

I.

Because there has been no administrative hearing or any record certified for our review, we have relied, necessarily, on the transcript (proffered by intervenors) of the Board's December 4 and 13, 1996 hearing into the allegations of voter intimidation by petitioner Byrd, as well as on the parties' submissions by counsel, who serve not only as advocates but also as officers of the court. Our recitation of the facts, therefore, is tentative pending final review after fact-finding on remand.

In the spring of 1996, Georgetown University students organized "Campaign Georgetown," dedicated to involving students in the political process locally and nationally. By the end of June 1996, Campaign Georgetown claimed to have registered approximately 300 to 400 students to vote in the District of Columbia.

During the summer of 1996, the Georgetown ANC persuaded the Council of the District of Columbia to pass a bill amending D.C.Code § 40-303(e) (1990 Repl.), which had exempted full-time students who were not "legal residents of the District of Columbia" from registering their automobiles with the District of Columbia Department of Motor Vehicles. Effective October 1, 1996, students living in the District who desired to hold residential parking stickers had to register their vehicles and pay the appropriate registration fee.

In September 1996, Campaign Georgetown continued its efforts to register students to vote in the District of Columbia. Also in September, three Georgetown students, intervenors Fogarty and Sinderbrand and a third student, Theo Jacobs, filed petitions for placement on the ballot as candidates for three ANC seats in the single member ANC Districts then served by Beverly Jost and Patricia Scolaro.¹ Scolaro challenged before the Board many of the signatures on both Sinderbrand's and Jacob's petitions and was successful in her challenge to Jacobs' petition.² The Board also sustained 13 of Scolaro's 23 challenges to Sinderbrand's petition, but this left 26 valid signature's for Sinderbrand — one more than required for a place on the ballot. None of Scolaro's challenges alleged that any of the student signers was not a legal resident of the District of Columbia, although she did challenge the signatures of several voters who allegedly resided outside the ANC district. Nor did Scolaro otherwise challenge either Sinderbrand or Jacobs as unfit candidates.

Sometime around September 10, 1996, petitioner Byrd drafted a flyer warning students that, if they registered in the District as voters, they would be required to pay income taxes in the District, they could lose grant money from their home states, they would have to change their driver's licenses from their home states to the District, and they would lose the benefit of any "Zone 2" stickers they had received and would have to reregister their cars in the District. On September 13, Dan Leistikow, a Campaign Georgetown organizer, filed a complaint with the Board alleging that the flyer raised questions of voter intimidation which the Board should investigate.

On October 23, Byrd sent the Board and other public officials a letter (on official ANC stationery) calling for investigation of the "900 Georgetown University Students" recently registered. The letter called for "an immediate and thorough joint investigation by all relevant DC agencies to prevent voting by unqualified electors." The letter also suggested the agencies that should participate and mentioned what they could do to determine whether the registered students had complied with District statutes governing the responsibilities of District residents.

On October 25, Board Chairman Benjamin Wilson replied to Byrd in writing that there was no legal basis for challenging registered students simply because they had failed to pay District taxes or to acquire District driver's licenses. Wilson also suggested that Byrd's letter "may be suggestive of voter intimidation" and that the Board would schedule a hearing on whether Byrd had violated the District's voter intimidation laws. See D.C.Code §§ 1-1316, -1318 (1992 Repl. & 1996 Supp.). Byrd responded on November 1 with a letter citing case law from other jurisdictions that Byrd believed supported her position and demanding that Wilson retract his allegations.

By the end of October, Campaign Georgetown had registered another 600 to 700 students since spring, for a total of approximately 1,000. As election day drew nearer, Byrd consulted Alice McCrory-Miller, the Board's Acting Executive Director and General Counsel, on procedures for challenging registered voters. McCrory-Miller informed Byrd that because the 90-day cutoff for written challenges before election day had passed, see D.C.Code § 1-1311(e)(5)(A) (1996 Supp.), voters could be challenged only by duly appointed poll watchers when the voters attempted to cast their ballots. See D.C.Code § 1-1313 (1996 Supp.). Poll watchers for Byrd, Jost, and Scolaro accordingly began to organize their efforts to challenge student voters. The watchers prepared two lists of voters they wished to challenge: recent registrants listed in the 1995-1996 Georgetown University Telephone Directory (the 1996-1997 Directory was not then available) for whom a "permanent address" outside the District was supplied, and recent registrants from a list of Georgetown freshmen. The poll watchers also prepared a large number of challenge forms with a pre-printed challenge: "student has not rebutted presumption of home-state domicile with specific evidence of new domicile in D.C."

On the morning of November 4, 1996, flyers were distributed in Byrd's ANC district supporting a write-in candidacy for Georgetown University faculty member Walter Benson. The flyer referred to Byrd's correspondence and to the allegations of voter intimidation. That evening, to counteract this flyer, Byrd distributed copies of her correspondence with the Board to all the homes in her district. Also on November 4, Byrd delivered a letter to the Board members notifying them that many voters would be challenged and requesting additional resources for Precinct 6 to alleviate the difficulties the challenges might cause.

On November 5, the morning of the election, Board Chairman Wilson faxed a letter to Byrd stating that the Board properly had construed its duty under the statute and that there would be no changes affecting procedures or personnel at Precinct 6. Wilson also advised that challenges could be made only by designated poll watchers and that the burden of proof in each instance would be on the challenger.³

What happened during the course of Election Day is subject to considerable debate among the parties. Barbara Zartman apparently made the first voter challenge at approximately 7:30 a.m. against Brian O'Connor, a Georgetown student. According to petitioners, Zartman presented her challenge to Precinct Captain Sidney Spencer,...