Petition for Review of a Decision of the District of Columbia Board of Elections and Ethics
Before Terry, Farrell and Wagner, Associate Judges.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge : In response to a timely challenge by a registered qualified elector, D.C. Code § 1-1312 (o)(1) (1992), the Board of Elections and Ethics disqualified petitioner, Vincent Orange, as a candidate for the special election scheduled for September 14, 1993, to fill the vacancy in the position of Chairperson of the Council of the District of Columbia created by the death of John Wilson. The Board removed petitioner's name from the ballot because he had failed to file a nominating petition signed by the requisite number of duly registered voters, as required by D.C. Code § 1-1312 (i)(1). Petitioner brought this expedited appeal. D.C. Code § 1-1312 (o)(2). We affirm the decision of the Board.
D.C. Code § 1-1312 (j)(1) provides that, to be placed on a ballot for election to city-wide office, an otherwise qualified candidate must file a petition with the Board signed by 3,000 "duly registered" voters or by 1 1/2% of all duly registered voters in the District, whichever is fewer. Of key importance to the present case, D.C. Code § 1-1312 (o)(3) provides that:
for the purpose of verifying a signature on any petition filed pursuant to this section, the Board shall first determine that the address on the petition is the same as the residence shown on the signer's voter registration record. If the address is different, the signature shall not be counted as valid unless the Board's records show that the person was registered to vote from the address listed on the petition at the time the person signed the petition. *fn1
Although petitioner filed a nominating petition containing 4,129 signatures, the Board determined that 1,293 challenged signatures were invalid, leaving 2,837 valid signatures or 163 (5.4%) fewer than the number required. Of the invalidated signatures, petitioner contests the Board's decision only as to 589, representing names on the petition which matched a name or names on the voter registration roll, but whose accompanying addresses did not match the address of the person on the Board's records as required by § 1-1312 (o)(3). *fn2
Petitioner contends that the Board's application of § 1-1312 (o)(3) so as to invalidate the 589 signatures by persons for whom a corresponding name (but a different address) appeared in the Board's record of registered voters was unconstitutional. His argument is essentially twofold. First, he maintains that the Board has denied him equal protection of the laws by arbitrarily distinguishing between two classes of "duly registered" voters who have changed their addresses: those who, despite not having notified the Board of the change of address, may still vote on election day by submitting a change of address form (and other information the Board by regulation may require) at the polling place at the time of voting, D.C. Code §§ 1-1311 (i)(3), (4), & (5); 3 DCMR § 716 ("Voting The Special Ballot"); and, on the other hand, those who by operation of § 1-1312 (o)(3) may not be counted as signers on a nominating petition if their individual addresses listed on the petition do not match the address of a named person on the Board's records. This argument rests upon petitioner's erroneous assertion that the Board has "conceded that 589 of the challenged petition signatures that were disqualified were indeed registered voters " (emphasis added). The Board did not make this concession, nor could it legally have done so. Section 1-1312 (o)(3) is unambiguous in providing that, for purposes of verifying signatures on a nominating petition, a person's signature "shall not be counted as valid" unless the Board's records show the person to be "registered to vote from the address listed on the petition at the time the person signed the petition." In the Amended Challenge Report prepared on July 23, 1993, and furnished to petitioner, the Registrar of Voters explained that the 589 signatures were defective precisely because they were accompanied by addresses that "did not match an address on the voter roll as required by D.C. Code § 1-1312 (o)(3)." Likewise, the Board's order sustaining the challenge to these signatures made clear its "rejection of 589 signatures whose address on the petition did not match the Board's records," citing § 1-1312 (o)(3).
Thus, petitioner's equal protection argument starts from a false premise. The 589 signatories were never determined to be duly registered, and hence they were not treated differently from other persons who are registered but have changed address without notifying the Board. Indeed, the very reason § 1-1312 (o)(3) was enacted was the Board's inability otherwise, within the narrow time limit for validating challenged petitions, see § 1-1312 (o)(2), to determine efficiently whether a name and address among the potential thousands on a nominating petition represents an actual registered voter. See Harvey, supra note 1, 581 A.2d at 758. *fn3
We therefore turn to petitioner's primary contention, that by applying § 1-1312 (o)(3) in accordance with its terms, the Board denied him due process of law and "infringed the [presumably First Amendment] rights of a class of voters who have expressly stated that they would like petitioner's name to appear on the ballot." *fn4
Any election law, "'whether it governs the registration and qualification of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects -- at least to some degree -- the individual's right to vote and his right to associate with others for political ends.'" Burdick v. Takushi,, 119 L. Ed. 2d 245, 112 S. Ct. 2059, 2063 (1992) (quoting Anderson v. Celebrezze, supra note 4, 460 U.S. at 788). As a practical matter, "there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Storer v. Brown, 415 U.S. 724, 730, 39 L. Ed. 2d 714, 94 S. Ct.1274 (1974). Consequently, in judging the constitutionality of electoral laws, the Supreme Court applies a "flexible standard" that varies with the severity of the electoral restrictions:
When rights are subject to "severe" restrictions, the regulation must be "narrowly drawn to advance a state interest of compelling importance." Norman v. Reed, 116 L. Ed. 2d 711, 502 U.S. , 112 S. Ct. 698, 705 (1992). But when a state election law provision imposes only "reasonable nondiscriminatory restrictions" upon the First and Fourteenth Amendment rights of voters," the State's important regulatory interests are ...