- The Washington Times - Saturday, August 28, 2004

Earlier this month, the D.C. Board of Elections ruled that proponents of a gambling initiative did not have enough bona fide signatures to place question on the Nov. 2 ballot. Supporters threatened to sue, and they did. The D.C. Court of Appeals set Sept. 8 for a hearing. On Friday, the ACLU also filed an appeal, claiming in its brief that the board’s ruling violated the First Amendment.

The elections board ruled Aug. 5 that proponents, who were responsible for circulating, gathering and submitting petitions, failed to collect 17,599 signatures — the minimum number needed to place the initiative on the ballot. The board — whose chairman, Wilma Lewis, is a former federal prosecutor — tossed out thousands of signatures because of forgery and fraud, and what she called “systemic” violations of D.C. election laws.

The board ruled similarly in 2002, when Mayor Williams’ re-election campaign petitions were rife with forgeries. His campaign sued. The court ruled in favor of the board, saying it indeed has the authority to assert itself in the petition-gathering process.

The board’s ruling against the slots initiative involves more than actual signatures, however. The board also threw out petitions because proponents failed to exercise oversight and because petition circulators misrepresented the substance of the initiative. Some witnesses testified to the board that some circulators went so far as to say bringing a new casino would create jobs and more money for health care and schools.

It is on that point that the ACLU says the board’s ruling stifled free speech. “The idea that the board of elections has the power to regulate political speech between citizens on the street and disqualify signatures because they think the speech was inaccurate is an astonishing assertion,” the ACLU’s D.C. area legal director, Arthur Spitzer, told The Washington Post.

Seemingly, the appeals court is being asked to weight the merits of fraud and forgery against free speech and disenfranchisement. While the appeals court could indeed view the ACLU argument with sympathy, the prerogative and authority to rule on petitions and other campaign prerequisites rests with the D.C. Board of Elections and Ethics. Moreover, while the board cannot prohibit circulators from speaking, the D.C. Code stipulates that circulators prove to the board that they did not “make any false statements regarding the initiative or referendum to anyone whose signature is appended to the petition.” So, it seems the issue is not whether the circulators spoke to individual petitioners, since speaking to potential signers is part of the process, but what the circulators said.

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