DC APPLESEED 1111 Fourteenth Street, NW Suite 510 Washington, DC 20005 Phone 202.289.8007 Fax 202.289.8009 www.dcappleseed.org SUPPLEMENTAL TESTIMONY OF WALTER SMITH, EXECUTIVE DIRECTOR DC APPLESEED CENTER FOR LAW AND JUSTICE COUNCIL OF THE DISTRICT OF COLUMBIA COMMITTEE OF THE WHOLE Bill 20-602, the Attorney General Partisan Election Implementation Amendment Act of 2013 INTRODUCTION In 2010, the voters of the District of Columbia amended the Home Rule Charter to provide that in 2014 they would for the first time elect the city s Attorney General. Unfortunately, in October of last year, contrary to the advice of its General Counsel and the current appointed Attorney General, the Council voted 7-6 to postpone the election until at least 2018. DC Appleseed believes the Council had no authority to postpone the election because the Council cannot override a Charter Amendment ratified by the people. DC Appleseed also believes that even if the Council did have the authority to override the Charter Amendment, it should not have done so, but instead should have respected the people s call for greater democracy. But that is now water over the dam. Further water over the dam is that it is now too late to have a primary election for Attorney General on April 1 because the time for candidates to file petitions for such a primary has long since passed, and the date for printing the ballots has also passed. Fortunately, however, it is not too late to respect the voters call for an Attorney General election in 2014. It can be done by passing the Attorney General Partisan Election Implementation Amendment Act of 2013 ( Act ), which provides for the Attorney General to be elected this year on the November ballot. That election would work the way special elections have long worked in the District: candidates could run in that election as members of parties, or not if they so choose; voters would select the candidate they most prefer; and the candidate with the most votes would become Attorney General. It might have been better to have first held a primary election and then hold a general election. But that is no longer possible. And we think it is far better to elect the Attorney General on the November ballot this year than not to elect the Attorney General at all this year. The only obstacle to this reasonable proposed solution is that at the February 10 hearing on this bill, every witness spoke in favor of it except one: the current appointed Attorney General. He
Page 2 of 8 testified that because the Charter Amendment requires that the Attorney General be elected on a partisan basis, there must first be a primary, and without a primary, the proposed general election would not be partisan. But as we will explain, this is wrong. Special elections in the District are required to be partisan, and the District has held them for decades. In fact, eight members of the current Council were elected at one time through a partisan special election that looked just like the election proposed for the Attorney General election this November. However, the Attorney General also testified that in any case, the proposed November election would not be partisan unless the candidates running for office were actually nominated onto the ballot by the party they represent. But this too is wrong. Candidates run as partisans all the time in this city without having the formal endorsement of their party. Again, that is the way special elections work. It is surprising that the Attorney General, who advised the Council it had the authority to postpone the election, now advises the Council it has no authority to put the election back on track. It is also surprising that the Attorney General, who told the Council it should respect the will of the voters and hold the Attorney General election in 2014, now advises the Council there is no way to do that. It is even more surprising that on February 6, the Attorney General s lawyers argued to D.C. Superior Court that it should refuse to order a primary for Attorney General because there are other ways to hold the election later this year only to testify himself to the Council four days later that the failure to hold a primary means it is now legally impermissible to hold the election this year. What makes this most surprising is that the Court accepted the Attorney General's argument based in part on the pendency of the very bill that the Attorney General now says is beyond the Council s authority. In our view, as next explained, the Attorney General is giving the Council bad advice. We say that for three reasons: (1) given that the Attorney General agrees that the Council should respect the voters call for a 2014 election, he should propose ways for the Council to accomplish that purpose; (2) the bill before the Council does accomplish that purpose and is within the Council s authority; and (3) the Attorney General s current arguments against the bill are without merit. Contrary to the Attorney General's arguments, that bill is within the Council s authority, and passing such a bill is the best way now to advance democracy and respect District voters. 1. The Attorney General Agrees that the Council Should Respect the Will of the Voters to Elect the Attorney General in 2014. When voters overwhelmingly ratified the Elected Attorney General Charter Amendment in the November 2010 referendum, the ballot stated that residents of the District of Columbia would
Page 3 of 8 begin voting for the Attorney General in 2014. In light of this clear language, the Attorney General agrees that voters expected that they would elect the Attorney General for the first time this year. He also agrees that the will of the people in that referendum should be respected by the Council. As the Attorney General advised the Council in his July 9, 2013, letter to Councilmember Jack Evans: The District s voters by a substantial margin supported the Charter amendment creating an elected Attorney General and did so with the justifiable expectation of voting for one in 2014.... In my view, their expectations should be respected and fulfilled. 1 In light of the Attorney General s well-stated, compelling view, we believe he now could have and should have advised the Council concerning alternative ways it might have chosen to respect and fulfill the voters expectations. We believe the need for such alternative ways became even more important after the Council voted 7-6 to last October to postpone the election. Given that the stated rationales for the postponement were the need to encourage candidates to run for the office and the need to resolve the duties of the office, the Attorney General might have advised the Council how to address those concerns and meet voters expectations. But he did not do that. Instead, his office opposed a lawsuit seeking an immediate judicial order requiring a primary election for Attorney General this year and did so on the ground that there are alternative ways for getting the election back on track this year. Yet he now opposes the bill before the Council on the ground that the election cannot be put back on track this year without a primary. Thus, in the lawsuit brought by Paul Zukerberg challenging the Council s delay of the election until 2018, the Attorney General s lawyers argued that Mr. Zukerberg would not be harmed if the Court refused to order a primary election, because he could later run in the general election. The Court agreed and refused to issue an order, in part because of the pendency of the bill now before the Council: Plaintiff recognized that he could potentially be placed on the ballot during the 2014 general election and that such legislative proposals are currently under consideration. Thus, adequate compensatory or other corrective relief will be available at a later date.... 2 Fortunately, the legislative proposal now being considered by the Council not only respects the will of the voters, but also addresses the concerns that led to the postponement of the election, and it meets the requirements of the Charter Amendment that the election be partisan. 1 Letter from Irvin B. Nathan, Attorney General, Dist. of Columbia, to Jack Evans, Member, Council of the Dist. of Columbia, on May the Council Postpone the Election of the Attorney General Past 2014? 1 (July 9, 2014) [hereinafter Evans Letter]. 2 Zukerberg v. D.C. Bd. of Elections & Ethics, No. 2013-CA-8004-B, slip op. at 4 (D.C. Sup. Ct. Feb. 7, 2014) (citations omitted).
Page 4 of 8 2. The Proposed Bill is Within the Council s Authority and is the Best Way Now to Respect the Will of the Voters. The concerns that led to the postponement of the Attorney General election have already been addressed, or would be addressed by the proposed legislation. Although there were debates about the Attorney General s duties last year, those duties were fully resolved in the legislation the Council passed last October. And the concern about the lack of available candidates would be addressed in two ways by the proposed legislation. First, it would greatly expand the field of eligible, qualified candidates by allowing District government lawyers to run for the office. Second, it would make clear this spring that an election for the office will occur in November, giving eligible candidates ample time to prepare for the election. The proposed bill also addresses the requirement of the District Charter that The Attorney General for the District of Columbia shall be elected on a partisan basis by the registered qualified electors of the District. 3 The Act now before the Council permits candidates to gain ballot access by collecting signatures and then run as partisans, just as in a special election. Under District law, partisan elections are currently conducted in two ways: a general election following party primaries, and a special election without a primary. Special elections are used to fill vacancies on the Council, and those elections must be partisan to meet the Charter s requirement that [t]he Council... shall consist of 13 members elected on a partisan basis. 4 In fact, eight current members of the Council were at one time elected on a partisan basis in a special election. Since the Attorney General election under the proposed Act would effectively be conducted in the same manner as a partisan special election for Council, it logically follows that the Attorney General election would be partisan under the Charter as well. Special elections (and the proposed Attorney General election) are also partisan for purposes of federal law, specifically the Hatch Act, which limits participation in partisan political activity by federal employees. Under the Hatch Act, partisan political office is defined as any office for which any candidate is nominated or elected as representing a party.... 5 This has been interpreted to expressly encompass[] offices for which candidates are either nominated as representing a party or elected as representing a party. 6 And the term elected as representing a party has not been interpreted by the courts to require formal endorsement or election by a party. 7 Any doubt that about how this law would apply to the District can be removed by the fact that the U.S. Office of 3 D.C. Code 1-204.35(a). 4 Id. 1-204.01(b)(1). 5 5 U.S.C. 7322(2). 6 McEntee v. Merit Sys. Prot. Bd., 404 F.2d 1320, 1329 (Fed. Cir. 2005). 7 Id.
Page 5 of 8 Special Counsel has specifically determined that the District s special elections for Council are partisan. 8 Accordingly, since partisan elections can and do occur without a primary in a number of contexts, including under both the District Charter and federal law, the Council clearly has authority to pattern the Attorney General election after Council special elections and thereby comply with the requirement that the Attorney General election be partisan. This is now the best way to get the election back on track and comply with the will of the voters to elect the Attorney General in 2014. 3. The Attorney General s Opposition to the Bill is Not Persuasive. Notwithstanding all of the above, the Attorney General now belatedly contends that the Council has no authority to provide for the election of the Attorney General this November. This is so, he says, because that election could not be deemed partisan within the meaning of the Charter. In his February 10 testimony before the Council, the Attorney General made essentially five points in support of his position and, in our view, all five of them are mistaken. First, the Attorney General wrongly argues that the word partisan necessarily requires that a primary be held. But this is not correct. As mentioned earlier, the District can and does hold partisan election when it elects Councilmembers through special elections. And under the circumstances now presented where a primary is no longer possible it is perfectly appropriate for the Council to hold such a partisan election for Attorney General. In fact, it is the only practical way now to accomplish what the Attorney General says he favors respecting he will of the voters by electing the Attorney General in 2014. Second, the Attorney General says that in any case, [w]that makes an election partisan is the selection and endorsement by a political party, whether or not that is done by a closed primary.... 9 He says that this view is supported by the federal Hatch Act requirement that partisan political office refers to any Office for which any candidate is nominated or elected as representing a party.... 10 In short, he testified, it does not make it a partisan election when a candidate chooses which party he or she likes; it becomes partisan when the party chooses which candidates it likes. 11 But this is not so. In the District, candidates for Council in special elections do not have to be first endorsed by their party in order to run in a partisan election. And contrary to what the Attorney General says about the federal Hatch Act, the courts have made clear that the Attorney 8 Press Release, U.S. Office of Spec. Counsel, Federal Employee Violates Hatch Act Through Twitter (Feb. 4, 2014), http://www.osc.gov/documents/press/2014/pr14_03.pdf. 9 Statement of Irvin B. Nathan, Attorney Gen. for the Dist. of Columbia, Before the Committee of the Whole on Bill 20-602, the Attorney General Partisan Election Implementation Amendment Act of 2013 8 (Feb. 10, 20140 [hereinafter Nathan Testimony]. 10 Id. at 7 (citing 5 U.S.C. Section 7322(2)). 11 Id. at 12.
Page 6 of 8 General s view of that Act is wrong. As the United States Court of Appeals expressly held in McEntee v. Merit Systems Protection Board, the term elected as representing a party in the Hatch Act does not require formal endorsement or selection by a party. 12 Thus, even if the Attorney General is correct that the Charter does not require special elections to be partisan, they are clearly conducted as partisan elections. Third, the Attorney General argues that the relevant District judicial precedents demonstrate that the November election proposed for Attorney General would not be partisan. In fact, the two precedents he cites actually show just the opposite. He first cites a 1969 case, Boone v. Taylor, in which the D.C. Court of Appeals reviewed the requirements for a nonpartisan election for the D.C. School Board. In that case, the Court held that nonpartisan means that candidates for the Board not be nominated by political parties or file for election under a party designation. 13 The Court further explained that this means that the Board of Elections must prohibit in the general election the designation on the ballot of any reference to political parties by words, symbols, etc. 14 The other case cited by the Attorney General makes essentially the same point. That case, Hawkins v. Butler-Truesdale, reaffirms the determination in the Boone case that a nonpartisan election requires that candidates... not be nominates by political parties or file for election under party designation. 15 Under these standards, because the election being proposed by the current bill expressly permits candidates to file for election under a party designation and be labeled as such on the ballot, that election is clearly partisan within the meaning of the judicial precedents. Fourth, the Attorney General points to the legislative history of the Charter Amendment indicating that that the Councilmember who originally proposed the amendment making the election partisan indicated that this would create a primary election. But as the Attorney General himself said in his advice to Councilmember Evans concerning the postponement of the election, for two reasons this history is legally insufficient to mandate that a primary be held. First, the Attorney General said in that letter that a view expressed by one Councilmember does not establish how other Councilmembers interpreted the language. 16 Second, and more significantly we think, in that letter, the Attorney General said it was important that the Council knew how to set a mandatory deadline for the Attorney General election in the legislation but did not do so. 17 So too here: the Council knew how to expressly require a primary election for Attorney General in the legislation, but 12 404 F.2d at 1329. 13 Boone v. Taylor, 256 A.2d 411, 413 (D.C. 1969). 14 Id. 15 Hawkins v. Butler-Truesdale, 584 A.2d 1241, 1243 (D.C. 1990). 16 Evans Letter at 4. 17 Id.
Page 7 of 8 did not do so. Instead, it provided only that the election be partisan, leaving the Council discretion later concerning how to make it partisan. 18 Finally, the Attorney General argues that [i]f this bill were to become law, it would likely be held by a court to violate... the Charter.... 19 But the reasons he says this are the reasons just discussed, and it is clear to us that the Attorney General has misread the law. He furthermore underestimates the discretion the Council has in implementing the partisan requirement of the referendum and the great deference a court would give the Council in doing so. The fact is that the Council has broad authority over election law that Congress granted it in the Home Rule Act. Section 752 provides that notwithstanding any other of provision of [the Home Rule Act] or of any other law, the Council has the authority to enact any act or resolution with respect matters involving or relating to elections in the District. 20 Through this provision, Congress intended to give the Council authority to legislative on substantive matters regarding elections (and not merely to establish procedures). 21 Consistent with this, the Council has the authority to legislate the process by which the partisan Attorney General election shall take place. Moreover, the suggestion by the Attorney General that a court would likely determine that the proposed Attorney General election violates the Charter was just refuted by what the Superior Court did in response to Paul Zukerberg s challenge to the postponement of the election until 2018. In that case, Mr. Zukerberg argued that the language in the Council s legislation providing that the election would occur after January 1, 2014 could not be reconciled with the Council s later determination to postpone the election until 2018. But the Court rejected that view, stating that its responsibility was to defer to the Council s construction of the language and to uphold the later postponement unless it was clear and manifest that the later action was incompatible with the earlier legislation. 22 Under that same standard, it is inconceivable that a Court would reject the Council s implementation of the partisan requirement in the current bill. Plainly, the Council s proposal to hold a partisan election patterned after partisan special elections for Council is not clearly and manifestly precluded by the language of the referendum. As a result, even if this issue came before a Court which seems quite unlikely the Court would defer to the Council s determination to hold a November partisan election for Attorney General. 18 Memorandum of Points and Authorities in Support of Defendants Motion to Dismiss and In Opposition to Plaintiff s Motion for Preliminary Injunction at 29, Zukerberg v. D.C. Bd. of Elections & Ethics, No. 2013-CA-8004-B (D.C. Sup. Ct. Jan. 10, 2014). 19 Nathan Testimony at 1. 20 D.C. Code 1-207.52 (emphasis added). 21 Jackson v. D.C. Bd. of Elections & Ethics, 999 A.2d 89, 114 (D.C. 2010). 22 Zukerberg, No. 2013-CA-8004-B, slip op. at 5 6.
Page 8 of 8 CONCLUSION Four years ago, voters overwhelmingly ratified a Charter Amendment and since then have justifiably expected to elect the Attorney General for the first time in 2014. There is strong support, including from the Attorney General, that the Council, consistent with its tradition of championing D.C. democracy, should respect the people s will and restore the election to 2014. The only practical way to accomplish this in the limited time available is to provide for an election in November of this year, with candidates running as members of parties and getting ballot access by petition, just as is regularly done in partisan special elections. Only the Attorney General has raised concerns with this approach, and fortunately, his concerns are without merit. The Council would be acting well within its authority to establish a partisan Attorney General election this year by passing this Act. We strongly urge it to do so.