Petitions for Review of Orders of the District of Columbia Board of Elections and Ethics
Rehearing En Banc Denied January 15, 1991,
Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Schwelb
Petitioners Harvey and Burns have asked this court to review a decision of the Board of Elections and Ethics of the District of Columbia (the Board) *fn1 holding that each had failed to qualify for inclusion on the November 6, 1990 ballot as a candidate for an "at large" seat on the Council of the District of Columbia. The Board ruled that both Harvey and Burns had failed to submit petitions bearing 3,000 valid signatures of qualified electors, as required by D.C. Code § 1-1312(j)(1). *fn2 Both men presented petitions bearing more than 3,000 signatures but, in response to challenges filed by registered voters supporting one or more other candidates, the Board disqualified a sufficient number of signatures to bring the total below the required 3,000 for each of the petitioners.
Specifically, the Board held that a substantial number of the signatures presented by Burns and a substantial number of those presented by Harvey were disqualified for failure to comply with the Board's Rule 1607.4, 3 DCMR § 1607.4 (1990), which reads as follows:
A signature shall not be counted as valid unless the date signed, the voter's signature, and the voter's residence address, as listed on the Board's records appear on the petition.
Additional signatures presented by Harvey were disqualified because
the failure of the circulator of a nominating petition or individual petition sheets to be a registered qualified elector shall invalidate the signature of an otherwise registered qualified elector.
3 DCMR § 1607.7 (1990). It appears that one of petitioner Harvey's circulators was no longer a registered voter in the District, although she had previously been registered here.
The parties' briefs were filed in this court on October 2 and 4, 1990, and this court heard extensive oral argument on October 5. We were advised that the ballots must go to the printer on October 10. Accordingly, we must decide the case on an expedited basis. We hold that both of the regulations under which the Board purported to allow the challenges are incompatible with the statute which they were designed to implement. We therefore reverse the Board's decision and hold that both candidates' names are to be placed on the November ballot.
D.C. Code § 1-1312(j)(1) provides that a petition is valid if it is signed by 3,000 persons who have been duly registered. Rule 1607.4 provides, however, that a signature shall not be counted as valid unless, among other things, the voter's residence address "as listed on the Board's records" appears on the petition. There can be no doubt that there are registered voters whose addresses on the Board's records differ from the addresses on the petitions, e.g., any person who has moved within the District since signing a petition and who has notified the Board of his or her new address. Although candidates and circulators of petitions are advised by the Board that they should obtain the registration address of any person signing the petition (presumably to enable the Board to determine readily whether such a person is in fact registered), there are undoubtedly voters who have moved and who are unable to recall when they registered or where they lived at the time, but are nevertheless duly registered. Counsel for the Board conceded at argument that under Rule 1607.4, any such person is disqualified if his or her registration address does not appear on the petition, and that a candidate's proffer of other evidence that such a person is a registered voter would be rejected by the Board as futile.
Under these circumstances, we are compelled to hold that Rule 1607.4 is invalid because it is contrary to the statute, D.C. Code § 1-1312(j)(1). Tenants of 738 Longfellow Street, N.W. v. District of Columbia Rental Hous. Comm'n, 575 A.2d 1205, 1213 (D.C. 1990). The disqualification of persons who ...