- The Washington Times - Monday, February 8, 2016

D.C. Mayor Muriel Bowser nominated Monday corporate lawyer David Michael Bennett to head the Board of Elections, which is embroiled in a court battle over whether its members had overstayed their terms when they approved a November ballot measure to raise the minimum wage.

Currently, only one member of the three-person board is seated within her term limits — Dionna Maria Lewis, who was nominated in December by Ms. Bowser and confirmed Jan. 5 by the D.C. Council.

Two others, Stephen Danzansky and Deborah Nichols, have exceeded their terms by years, and no one seems to know definitively if they have any legal authority as board members. If confirmed, Mr. Bennett would take over for Ms. Nichols, whose term expired in July 2012.

The fate of the minimum wage initiative could be decided when D.C. Superior Court Judge Maurice Ross issues a ruling on the board’s authority as early as this week. The board’s past decisions on citywide elections and the city’s marijuana legalization law could be in peril as well.

The confusion dates back to August, when Harry Wingo, then-president of the D.C. Chamber of Commerce, filed a lawsuit against the board in an effort to get the minimum wage initiative off the November ballots. Mr. Wingo argued that the initiative should be removed, in part, because the board lacked authority since its members had exceeded their terms as well the District charter’s 180-day overstay period when they approved the measure.

At the time, Ms. Nichols and Mr. Danzansky, whose term expired in July 2014, were the board’s only members.

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Rudolph McGann, the board’s attorney, argued that it members can remain active until they are replaced because the board is an independent agency under the D.C. Charter and has its own rules separate from those of subordinate agencies.

On Jan. 29, Judge Ross ruled in favor of Mr. Wingo, saying that board members had overstayed their term limits when they approved the ballot initiative. The board, along with D.C. Attorney General Karl Racine, quickly filed a motion asking the judge to reconsider the ruling.

In a memo to the court, the board again asserted that it is exempt from a rule that allows mayoral appointees to overstay their terms by 180 terms, referring to a D.C. Council report from a 1998 law clarifying appointments by the mayor.

“There is statutory language that prevents any individual from serving in a holdover capacity for more than 180 days after the expiration of the their term, unless otherwise provided by law (such as a provision that allows a Board of Elections and Ethics member to serve until his or her successor is in place),” the council report says.

A separate charter provision dealing exclusively with the elections board says a member may be “reappointed, and, if not reappointed, the member shall serve until his successor has been appointed and qualifies.”

In a separate court filing, Mr. Racine implored the court to allow him to intervene in the case.

“The citizens of the District of Columbia have an undeniable interest in the disposition of this dispute, not only for the opportunity to vote on the initiative measure but to ensure that the board’s business may continue uninterrupted and without the cloud of doubt a ruling in plaintiff’s favor might create,” Mr. Racine wrote to the court. “And a ruling that the Board was improperly constituted when it accepted Initiative Measure No. 76 has potential to ripple far beyond this lawsuit.”

Mr. Racine also cited a 1995 U.S. Supreme Court ruling that said actions by a governmental body could be upheld even if a member of that body is found to be illegally seated.

“The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient,” Mr. Racine wrote to the court.



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