D.C. attorneys defend law to push back AG election

Response to lawsuit over ballot issue

Attorneys representing the District cite the fact that a law pushing the election for the city’s first attorney general back to 2018 is not yet in effect as a reason to toss out a lawsuit seeking to keep the race on the April ballot.

“It is not now and may never be effective law,” the attorney general’s office wrote in opposition filed this week in U.S. District Court for the District.

D.C. lawyer Paul Zukerberg sued last month to stop the Board of Elections and the council from removing the race from the April primary ballot.

The D.C. Council passed legislation in October that postponed the election, with council members arguing that the structure of the attorney general’s office was being reorganized and that no candidates had filed for the election primary. Mayor Vincent C. Gray returned the bill to the council unsigned, signaling his symbolic disapproval of the initiative.

The question of whether the legislation will go into effect comes in as the bill must go through a congressional review period of 30 legislative days. During the review period, Congress could nullify the law by filing a disapproval resolution to block its implementation — though in the past 40 years that has happened only three times.

If no one in Congress seeks to block it, the earliest the law could take effect is Dec. 20, according to the attorney general’s office.

In the interim, the battle continues over whether it is legal to delay the election. And although Attorney General Irvin B. Nathan has come out against a delay of the election for his current job, he now finds himself in the position of defending the initiative that will postpone it.

In the 30-page filing authored by Mr. Nathan’s office, officials attack Mr. Zukerberg’s claims that by postponing the election officials are depriving residents of the right to vote.

“He will not himself suffer any meaningful hardship during the coming months if his challenge to the 2013 Act is postponed, and his concern for a general ‘chilling effect’ on the election process is far too speculative to warrant serious consideration,” the opposition filing states.

The filings were made ahead of the Nov. 7 preliminary injunction hearing in the case.

The attorney general also takes issue with the wording of the two laws adopted by the D.C. Council to both authorize the election of an attorney general and later postpone it.

D.C. residents overwhelmingly approved the election in a 2010 referendum, and the D.C. Council legislation authorizing the change stated that the election would take place “after January 1, 2014.” The latest legislation states that the election “shall not be before January 1, 2018.”

“All possible election dates that are ‘not before January 1, 2018’ are also ‘after January 1, 2014,’ ” the attorney general writes.

Mr. Zukerberg reasons that language used by the D.C. Board of Elections states that the election must be held next year.

“When summarizing the ballot initiative, the Board of Elections placed this language on every ballot: “residents of the District of Columbia would begin voting for the Attorney General in 2014,” his petition states.

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